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Court of Criminal Appeal 17 December 2021

R v Ball

[2021] NSWCCA 314

Assault & violenceTheft & property
CRIME SENTENCE APPEAL CROWN APPEAL MANIFEST INADEQUACY AGGRAVATED BREAK AND ENTER EXCULPATORY PROVOCATION

Citation: R v Ball [2021] NSWCCA 314
Court: NSW Court of Criminal Appeal
Date: 17 December 2021
Judges: Simpson AJA; Rothman J; Button J

Background

The respondent pleaded guilty to aggravated break and enter and commit a serious indictable offence under s 112(2) of the Crimes Act 1900 (NSW). The offence arose from an incident on 1 October 2020, when the respondent went to the victim's home after receiving a highly provocative text message referencing the respondent's father, who was at the time dying of terminal cancer. The respondent kicked in the victim's locked front door and assaulted him, causing bruising and swelling to the face, a bleeding nose, and chest pain requiring overnight hospitalisation.

At sentencing in the District Court at Port Macquarie, Judge Jeffreys imposed a conditional release order for two years with standard conditions, and otherwise discharged the respondent under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). This meant no conviction was recorded against the respondent.

The Director of Public Prosecutions appealed the sentence under s 5D of the Criminal Appeal Act 1912 (NSW), arguing the sentencing judge misassessed the objective seriousness of the offence and that the outcome was manifestly inadequate.

  • Whether the sentencing judge erred in his assessment of the objective seriousness of the offence
  • Whether the sentence imposed (a conditional release order without conviction) was manifestly inadequate for an offence carrying a maximum of 20 years imprisonment and a standard non-parole period of five years

Decision

The Court of Criminal Appeal dismissed both grounds of appeal. On the question of objective seriousness, Rothman J acknowledged that the offence was serious, involving a deliberate entry into the victim's home and a sustained physical assault. However, the particular circumstances of the offending, including what Rothman J characterised as non-exculpatory provocation arising from the deeply offensive text message referencing the respondent's dying father, were properly taken into account by the sentencing judge without constituting legal error.

On manifest inadequacy, the court noted that the Crown itself had accepted at the sentencing hearing that a non-custodial sentence was appropriate, and had further conceded during those proceedings that a community release order would not constitute appealable error. The Court of Criminal Appeal found that the Crown's conduct before the sentencing judge contributed to the leniency of the outcome, and that the DPP could not simply resile from that position on appeal.

Rothman J also observed that the respondent's subjective circumstances were exceptional. He had no prior convictions, was of demonstrably good character supported by multiple references, had significant family and employment responsibilities including managing a family business during his father's terminal illness, and was assessed by a psychologist as highly unlikely to reoffend. The sentencing judge had carefully considered whether the failure to record a conviction was too lenient, and the Court of Criminal Appeal found that deliberate exercise of discretion did not miscarry.

The court added that interference with the sentence would provide almost no guidance to future sentencing judges, given how particular the circumstances of both the offence and the offender were. The appeal was dismissed by all three judges.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that non-exculpatory provocation, while not excusing criminal conduct, can legitimately inform a sentencing judge's assessment of objective seriousness and the appropriate sentencing outcome.
  • A Crown concession at the sentencing hearing that a non-custodial sentence would not constitute appealable error was treated as a material factor weighing against interference on appeal, the Court of Criminal Appeal finding the DPP had contributed to the leniency of the outcome.
  • The combination of exceptional subjective circumstances, including no prior record, strong good character evidence, significant family and employment responsibilities, genuine remorse, and a low risk of reoffending, can support a s 10(1)(b) conditional release order even for an offence with a 20-year maximum and a standard non-parole period of five years.
  • Appellate courts apply the House v The King principle on Crown sentence appeals: intervention requires demonstrated error, not merely that the appellate court might have sentenced differently.
  • An appellate court may decline to interfere with a sentence where the circumstances are so particular that any adjustment would offer little or no general guidance to sentencing judges in future cases.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 112(2) (aggravated break and enter, maximum 20 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 9(1)(b), 10(1)(b)
- Criminal Appeal Act 1912 (NSW) s 5D

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Lovell v R [2006] NSWCCA 222
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Marshall v R [2007] NSWCCA 24
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Williams v R (2012) 203 A Crim R 172; [2012] NSWCCA 172