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Court of Criminal Appeal 14 December 2021

Many v R

[2021] NSWCCA 302

Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE ERROR REGARDING TOTALITY CONCEDED SENTENCE RECALCITRANT DOMESTIC VIOLENCE OFFENDER NO LESSER SENTENCE WARRANTED

Citation: Many v R [2021] NSWCCA 302
Court: NSW Court of Criminal Appeal
Date: 14 December 2021
Judges: Simpson AJA at [1]; Adamson J at [9]; Lonergan J at [26]

Background

The applicant was convicted in the District Court of two domestic violence offences committed in December 2017 at a home in Casino, NSW: assault occasioning actual bodily harm and common assault against his domestic partner. The offences involved a prolonged and violent attack, including dragging the victim by her hair, placing a foot on her head, choking her, and headbutting her. The sentencing judge imposed fixed terms of 18 months and 12 months respectively, both commencing 17 July 2020, with no non-parole period set because of the applicant's extensive criminal history and repeated failures on parole.

The applicant sought leave to appeal against sentence on two grounds. Ground 1 concerned a factual error by the sentencing judge regarding the periods the applicant had spent in custody in Queensland. Ground 2 concerned the sentencing judge's treatment as aggravating matters of the applicant's absconding to Queensland after being charged and the revocation of his parole.

The applicant had an extensive history of domestic violence offending and had repeatedly reoffended while on parole. Following his arrest for the subject offences in March 2018, he was separately convicted in Queensland of failing to cooperate with police (including refusing to provide a DNA sample) and served five months in custody for that offence between March and August 2018. The sentencing judge's factual error lay in overlooking this five-month period.

  • Whether the sentencing judge erred by treating the applicant's absconding to Queensland and parole revocation as aggravating factors (Ground 2).
  • Whether the sentencing judge made a material factual error by overlooking a five-month period of Queensland custody, thereby affecting the totality assessment (Ground 1).
  • Whether, on a re-exercise of the sentencing discretion following the conceded error, any lesser sentence was warranted.
  • Whether declining to set a non-parole period under s 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was appropriate in the circumstances.

Decision

All three judges rejected Ground 2. The sentencing judge had not treated the applicant's absconding and parole revocation as going to the objective gravity of the offences. Rather, those matters properly bore on specific deterrence, prospects of rehabilitation, and the likelihood of reoffending, all of which are legitimate sentencing considerations.

On Ground 1, the Crown conceded the factual error regarding the Queensland custody dates, accepting that oversight of the five-month period may have affected the sentence selection. Following Kentwell v The Queen (2014) 252 CLR 601, the Court was required to re-exercise the sentencing discretion independently of the sentences originally imposed, before then checking that any re-sentences did not exceed those originally imposed.

Notwithstanding the conceded error, the re-sentencing exercise produced no lesser sentences. All three judges concluded that a sentence for the assault occasioning actual bodily harm longer than that imposed at first instance would have been warranted on an independent re-exercise. For the common assault, a sentence of 12 months' imprisonment was appropriate, coinciding with the original term. The Queensland custody related to discrete and separate offending of a different character to the domestic violence conduct, meaning it had minimal moderating effect on totality.

The Court confirmed it was appropriate to decline to set a non-parole period under s 45. The applicant had received parole opportunities repeatedly in the past with no rehabilitative benefit, had continued to reoffend while subject to supervision, and had declined to participate in relevant programs in custody. Simpson AJA noted that, on release, there was a strong likelihood of further domestic violence offending.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A factual error in calculating pre-sentence custody can enliven the appellate obligation to re-exercise the sentencing discretion independently, even where the Crown concedes the error, but that process does not automatically produce a lesser sentence.
  • Where an offender's absconding and parole revocation are relevant to specific deterrence and prospects of rehabilitation rather than to the objective gravity of the offences, treatment of those matters at sentence does not constitute error.
  • Under s 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may decline to set a non-parole period where past parole opportunities have produced no discernible rehabilitative benefit and where reoffending on parole has been a persistent pattern.
  • Separate periods of interstate custody arising from wholly unrelated offending carry limited weight in the totality assessment when the criminality of each episode is distinct and not comprehended in the others.
  • In dismissing the appeal despite the conceded error, the Court of Criminal Appeal reinforced that retribution, general and specific deterrence, and protection of the community carry particular weight in sentencing recidivist domestic violence offenders.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 61
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- Cahyadi v R [2007] NSWCCA 1
- Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14
- Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Turnbull v R [2019] NSWCCA 97
- R v Abboud [2005] NSWCCA 251
- R v King [2003] NSWCCA 352
- R v M.A.K; R v M.S.K (2006) 167 A Crim R 159; [2006] NSWCCA 381