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Court of Criminal Appeal 5 November 2021

Kuruppu v R

[2021] NSWCCA 261

Assault & violenceDomestic & family violencePublic order & justice offences

Citation: Kuruppu v R [2021] NSWCCA 261
Court: Court of Criminal Appeal, NSW
Date: 5 November 2021
Judge(s): Meagher JA; Wright J; Fagan J

Background

The applicant, a Sri Lankan-born man in his early fifties, sought leave to appeal against two separate sentences imposed for a series of offences. The first sentence arose from a sustained campaign of domestic violence against his former wife, culminating in an aggravated break and enter at her home in the early hours of 23 February 2016, during which he choked her, pushed his fingers down her throat and threatened her life. He was also sentenced for a related ADVO contravention and a breach of a bond for an earlier assault. The second sentence arose from a separate offence committed while he was on remand: he threw boiling water from a kettle over his cellmate during an argument, causing second-degree burns to approximately 10 percent of the cellmate's body.

Both applications for leave to appeal were filed out of time. The applicant was unrepresented, had been refused Legal Aid, and English was not his first language. The Court accepted there were practical difficulties justifying extensions of time.

Legal Issues

  • Whether the first sentence (7 years' imprisonment, non-parole period of 4 years and 3 months) was manifestly excessive
  • Whether the sentencing judge erred in rejecting the psychologist's diagnosis of delusional disorder
  • Whether the sentencing judge erred in placing too much weight on general deterrence for either sentence
  • Whether the sentencing judge failed to find, or give practical effect to, a finding of special circumstances
  • Whether the sentencing judge erred in not obtaining a pre-sentence report
  • Whether the second sentence (5 years' imprisonment, non-parole period of 2 years and 6 months) was manifestly excessive
  • Whether the second sentence was wrongly made wholly consecutive with the first sentence
  • Whether the combined effect of the two sentences failed to give adequate effect to findings of special circumstances

Decision

First Sentence, Ground 1: Manifest excess

The Court rejected the submission that the first sentence was manifestly excessive (at [84]-[120]). The two principal offences, intentional choking and aggravated break and enter, each had their objective seriousness assessed as above the mid-range, reflecting multiple aggravating factors: the offending occurred in the victim's home, in the presence of a child, while the applicant was on bail, subject to a bond and bound by an ADVO, and with a prior history of domestic violence against the same victim. After applying the 25% plea discount, the indicative sentences were not excessive, and the degree of notional accumulation properly reflected the totality of distinct criminality across separate incidents (at [89]-[98]). Three comparable cases cited by the applicant were found to illustrate only the bottom of the available sentencing range and did not support a finding that the present sentence was outside the available range (at [118]-[119]).

First Sentence, Ground 2: Rejection of expert psychological opinion

No error was established in the sentencing judge's partial rejection of the psychologist's evidence (at [53]-[63]). The sentencing judge accepted two of the three diagnoses, namely severe alcohol use disorder and moderate persistent depressive disorder, but declined to accept the diagnosis of delusional disorder. That rejection was open on the evidence: the factual assumptions underlying the delusional disorder diagnosis came only from the applicant's self-serving account to the psychologist, which was unsupported by sworn evidence, and the presence of duct tape in the applicant's pocket was inconsistent with the exculpatory narrative he had provided (at [37]-[55]). The Court confirmed that a sentencing judge is not bound to accept unchallenged expert opinions, particularly where the factual foundation for those opinions has not been independently established (at [54]-[55]). No procedural unfairness arose from the judge not calling the psychologist for cross-examination; nor was there evidence of incompetent representation that deprived the court of relevant material (at [57]-[62]).

First Sentence, Ground 3: Excessive weight on general deterrence

The Court held that no error of the kind required by House v The King was established (at [64]-[69]). Mere assertion that insufficient weight was given to subjective circumstances is not a proper ground of appeal, and questions of weight are within the sentencing judge's discretion. The sentencing judge did not find that the applicant's mental health rendered him an inappropriate vehicle for general deterrence, and given the gravity of the offending, substantial weight on deterrence was appropriate (at [67]-[68]).

First Sentence, Ground 4: Special circumstances

This ground was misconceived. The sentencing judge expressly made a finding of special circumstances and gave it practical effect by setting the non-parole period at 60.7% of the aggregate sentence, well below the statutory 75% threshold (at [74]-[75]). To the extent the applicant's complaint concerned the combined effect of both sentences, the second sentence had not yet been imposed at the time of the first and could not have been taken into account (at [76]).

First Sentence, Ground 5: Failure to obtain a pre-sentence report

No error arose from the absence of a pre-sentence report (at [78]-[83]). The statutory provisions requiring such reports applied only where the court was considering non-custodial orders or short custodial terms of two years or less. Given the unchallenged finding that no sentence other than full-time imprisonment was appropriate, and that the aggregate was never likely to be two years or less, no obligation to obtain a report arose.

Second Sentence, Ground 2: Excessive weight on general deterrence

The Court rejected this ground (at [165]-[172]). General deterrence carries particular force for offences of violence committed in custody, given the need to support correctional officers in maintaining order and to protect inmates. The sentencing judge's approach was consistent with established authority and no House v The King error was identified (at [167]-[170]).

Second Sentence, Ground 3: Wholly consecutive sentences

No error was established in commencing the second sentence from the expiration of the non-parole period for the first sentence (at [173]-[185]). Although the applicant was on remand rather than serving a sentence when he committed the offence and therefore was not technically a "convicted inmate" within s 56 of the Sentencing Procedure Act, the policy underlying s 56, that sentences for offences committed in custody should be served consecutively, applies equally to offenders on remand. Making the sentence concurrent would have the substantive effect of imposing no additional punishment, which would be an unacceptable outcome given the need for deterrence (at [181]-[184], [230]).

Second Sentence, Ground 4: Practical effect of special circumstances in the total effective sentence

This ground was rejected (at [186]-[198]). The sentencing judge specifically considered the combined effect of the two sentences and the resulting ratio of effective non-parole period to overall head sentence, which was approximately 73%. That figure was below the 75% statutory threshold and reflected what the sentencing judge specifically intended, not any inadvertence or miscalculation. No obligation arose to further reduce the ratio (at [196]-[197]).

Second Sentence, Ground 1: Manifest excess

The Court found the second sentence was not manifestly excessive (at [199]-[218]). The offence fell below the mid-range of objective seriousness. The applicant had gone to trial and was not entitled to a plea discount. The four comparable cases cited by the applicant each involved materially different facts or represented examples of exceptional leniency and did not demonstrate that 5 years with a non-parole period of 2 years and 6 months was outside the available range (at [201]-[217]).

Orders Made

  • The applicant is granted an extension of time in which to file a notice of application for leave to appeal in the three matters
  • Leave to appeal is granted in each matter
  • The appeal in each matter is dismissed

Key Takeaways

  • A sentencing judge is not bound to accept unchallenged expert opinions where the factual assumptions underpinning those opinions have not been independently established. Rejection of a psychological diagnosis on that basis, as occurred here, does not constitute a denial of procedural fairness (at [54]-[55], [57]).

  • In dismissing both manifest excess grounds, the Court of Criminal Appeal confirmed that comparable cases relied on to demonstrate manifest excess must be examined for unifying sentencing principles, not simply as data points. Cases representing the lowest end of the sentencing range do not establish that a higher sentence falls outside the available range (at [99], [118]-[119]).

  • Under the policy reflected in s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW), sentences for offences of violence committed in custody should ordinarily be accumulated on existing sentences, and that principle extends to offenders who are on remand rather than serving a sentence at the time of the offending (at [181]-[184], [230]).

  • General deterrence carries particular weight when sentencing for violence committed in prison, both to support the administration of correctional facilities and to protect inmates. An applicant's assertion that too much weight was given to deterrence, without identifying a House v The King error, will not succeed as a ground of appeal (at [167]-[170], [229]).

  • Where a later sentencing judge specifically considers the combined effect of an earlier and a later sentence on the ratio of non-parole period to head sentence, and the resulting ratio does not exceed 75%, no error arises from declining to further reduce that ratio even where a finding of special circumstances has been made (at [193]-[197]).

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW), s 4
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 6, 7, 12, 44, 47, 53A, 56, 69, 76, 80, 88
- Crimes Act 1900 (NSW) , ss 33, 35, 37, 59, 61, 113
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Cases
- Aslan v R [2014] NSWCCA 114
- Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61
- Banks v R [2018] NSWCCA 41
- Chung v Anderson [2004] NSWCA 321
- CM v R [2020] NSWCCA 136
- Delaney v R [2013] NSWCCA 150; (2013) 230 A Crim R 581
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- GP v R [2017] NSWCCA 200
- Haines v R [2021] NSWCCA 149
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Jackson v R [2021] NSWCCA 15
- JM v R [2014] NSWCCA 297; 246 A Crim R 528
- Lai v R [2021] NSWCCA 217
- Little v R [2009] NSWCCA 113
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
- Moodie v R [2020] NSWCCA 160; 284 A Crim R 87
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pannowitz v R [2016] NSWCCA 13
- Primmer v R [2015] NSWCCA 155; 71 MVR 300
- R v Anderson (Court of Criminal Appeal (NSW), Lee CJ at CL, Mathews and Sharpe JJ, 9 April 1991, unrep)
- R v Baker [2000] NSWCCA 85
- R v Fyffe [2002] NSWSC 751
- R v Hollaway [2013] NSWSC 218
- R v Hollaway [2016] NSWCCA 166
- R v Israil [2002] NSWCCA 255
- R v Jeremiah [2016] NSWCCA 241
- R v Toohey [2019] NSWCCA 182
- R v Windle [2012] NSWCCA 222
- R v XX [2009] NSWCCA 115; 195 A Crim R 38
- Roach v R [2019] NSWCCA 160; 344 FLR 429
- Tammer-Spence v R [2021] NSWCCA 90
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Tohifolau v R [2018] NSWCCA 283
- Tsiakas v R [2015] NSWCCA 187
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Yi Hong Puan v R [2009] NSWCCA 194