AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 23 April 2021

McFarland v R

[2021] NSWCCA 79

Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE APPEAL PAROLE PERIOD OF 4 YEARS AND 4 MONTHS USE BY COURT OF COMPARATIVE CASES MANIFEST EXCESS NOT MADE OUT APPEAL AGAINST SENTENCE DISMISSED.

Citation: McFarland v R [2021] NSWCCA 79
Court: Court of Criminal Appeal, New South Wales
Date: 23 April 2021
Judge(s): Hoeben CJ at CL; Hamill J; Wilson J

Background

The appellant, a man aged 26 at the time of the offences, pleaded guilty in the Local Court to several offences arising from a single course of conduct on 2 November 2018. All but one of the offences were domestic violence related and were committed against his then de facto partner, referred to as Ms AH.

The primary offence was aggravated taking and detaining a person with intent to obtain advantage, the aggravating circumstances being that actual bodily harm was caused and the advantage sought was psychological gratification. In the course of the offending, the appellant forced the victim into his vehicle, drove approximately 2.9 kilometres with her legs hanging outside the car dragging along the gravel, and the victim ultimately fell from the moving vehicle. He had also punched her repeatedly, strangled her, and placed his hand over her mouth and nose. The victim sustained injuries described by the sentencing judge as "horrific," including severe abrasions requiring skin grafting and resulting in permanent scarring. She also developed post-traumatic stress disorder.

The appellant was sentenced in the District Court at Penrith on 19 May 2020 to an aggregate term of seven years' imprisonment with a non-parole period of four years and four months. A 25 per cent discount was applied for the early guilty plea. The appellant sought leave to appeal on the single ground that the sentence was manifestly excessive.

  • Whether the aggregate sentence of seven years' imprisonment with a non-parole period of four years and four months was manifestly excessive.
  • What principles govern appellate review of aggregate sentences in domestic violence cases.
  • The relevance and weight of comparative cases when reviewing the exercise of sentencing discretion.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, with Hoeben CJ at CL delivering the leading judgment and Hamill J and Wilson J agreeing. The Court found that the appellant had not established manifest excess, which is the applicable threshold for appellate intervention in sentence appeals.

The Court considered the sentencing judge's assessment that the principal offence fell above the mid-range of objective seriousness, and that the assault occasioning actual bodily harm fell at the mid-range. No challenge was mounted to either finding. The maximum penalty for the aggravated take and detain offence is 20 years' imprisonment, a legislative indicator of the serious nature of such conduct.

Several factors reinforced the appropriateness of the sentence. The appellant's subjective case was not compelling, even accounting for the sentencing judge's acceptance of genuine remorse. His self-induced intoxication could not be treated as a mitigating factor by operation of the Crimes (Sentencing Procedure) Act 1999 (NSW). A prior domestic violence conviction against a previous partner disentitled him to leniency. The offending, while unplanned, was not fleeting: it involved sustained violence across multiple incidents during the same course of conduct.

The Court also affirmed that the sentence properly reflected the need for specific and general deterrence, denunciation of alcohol-fuelled domestic violence, and recognition of the victim's human dignity. The aggregate sentence of seven years fell within the proper exercise of the sentencing judge's discretion.

Orders Made

  • Leave to appeal against sentence is granted.
  • The appeal is dismissed.

Key Takeaways

  • An aggregate sentence of seven years' imprisonment for aggravated detention of a domestic partner, involving sustained violence and severe physical injury, was held to fall within the proper exercise of sentencing discretion and did not constitute manifest excess.
  • Under section 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW), self-induced intoxication cannot be treated as a mitigating factor when determining an appropriate sentence.
  • In dismissing the appeal, the Court confirmed that prior domestic violence convictions against other partners are a relevant sentencing consideration that may disentitle an offender to leniency.
  • The Court of Criminal Appeal affirmed that sentences in domestic violence cases must reflect specific deterrence, general deterrence, denunciation of the offending, and recognition of the victim's human dignity.
  • No error in principle was established merely because the sentencing outcome was a substantial term: the objective gravity of the offences, the severity of the victim's injuries, and the appellant's limited subjective case together supported the sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 59, 86(2)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Road Transport Act 2013 (NSW), s 110(5)(a)

Cases:
- AB v The Queen (1999) 198 CLR 111
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58
- Cherry v R [2017] NSWCCA 150
- Diaz v R [2018] NSWCCA 33
- Droudis v R [2020] NSWCCA 322
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Jibran v R [2020] NSWCCA 86
- JM v R (2014) 246 A Crim R 528
- Kerr v R [2016] NSWCCA 218
- Markarian v The Queen (2005) 228 CLR 357
- Merkel v R [2019] NSWCCA 212
- Obeid v R (2017) 96 NSWLR 155
- R v JD [2018] NSWCCA 233
- TB v R [2020] NSWCCA 108
- Veen v R (No 2) (1988) 164 CLR 465