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District Court 17 August 2021

Perrin v R

[2021] NSWDC 408

Assault & violenceDomestic & family violence
APPEAL APPEAL AGAINST SENTENCE CRIME DOMESTIC VIOLENCE OFFENCES MULTIPLE OFFENCES RECKLESS WOUNDING ASSAULT OCCASIONING ACTUAL BODILY HARM

Citation: Perrin v R [2021] NSWDC 408
Court: District Court of New South Wales
Date: 17 August 2021
Judge: Haesler SC DCJ

Background

The appellant had pleaded guilty in the Wollongong Local Court to 16 domestic violence offences committed against his partner between 2015 and 2019, with a further six matters placed on a Form 1 (that is, taken into account on sentence without separate conviction). The offences included reckless grievous bodily harm, assault occasioning actual bodily harm, common assault, and stalking and intimidation. The relationship involved a pattern of serious physical violence, controlling behaviour, humiliation, and degradation over approximately four years.

On 24 June 2021, the Local Court imposed an aggregate sentence of five years with a non-parole period of three years and two months, backdated to 19 August 2020. That sentence was partly concurrent and partly cumulative on two earlier sentences the appellant had already served, producing a total accumulated period of just under five years and eleven months.

The appellant appealed to the District Court under s 11 of the Crimes (Appeal and Review) Act 2000, contending that the sentence was excessive and that the Local Court had made two errors: accumulating the sentence on the earlier sentences in breach of s 58 of the Crimes (Sentencing Procedure) Act 1999, and failing to give any discernible allowance for the guilty pleas.

  • Whether the Local Court breached s 58 of the Crimes (Sentencing Procedure) Act 1999 by accumulating the five-year aggregate sentence on earlier sentences, producing a total accumulated term exceeding five years.
  • Whether the Local Court gave adequate and discernible weight to the appellant's guilty pleas when arriving at the indicated and aggregate sentences.
  • How the sentencing court should weigh objective seriousness against subjective mitigating factors, including Aboriginality, deprived background, youth, mental health, drug dependency, and delay.
  • Whether fresh psychological evidence tendered on appeal warranted a more lenient disposition.
  • How the totality principle and the finding of special circumstances should interact with the summary jurisdictional limits and the need for community protection.

Decision

Haesler SC DCJ conducted a full re-hearing of the matter, as required under s 17 of the Crimes (Appeal and Review) Act 2000. His Honour accepted that the offences were objectively serious, noting that many individual charges would, standing alone, have attracted sentences approaching or at the summary jurisdictional maximum. However, he found that the Local Court had not given any discernible benefit for the guilty pleas, which was a source of error warranting intervention on appeal.

On the s 58 accumulation question, the prosecution relied on a same-day Supreme Court decision, R v Stoneham [2021] NSWSC 735, to argue that the five-year cap did not bind the sentencing court in the circumstances. His Honour declined to follow that approach, applying the principle of comity with the Supreme Court cautiously and preferring a strict construction of s 58 in the appellant's favour, given that liberty was at stake. His Honour found that the accumulated sentence as structured by the Local Court exceeded the statutory limit.

His Honour gave weight to the fresh psychological evidence, which had not been available to the magistrate. That material addressed the appellant's background of disadvantage, undiagnosed mental illness, history of trauma, and drug dependency. Consistent with principles derived from Bugmy v The Queen (2013) 249 CLR 571 and Fernando v R (1992) 76 A Crim R 58, his Honour treated those factors as reducing the appellant's moral culpability, even though the objective gravity of the offences remained high.

The appeal was upheld in part. His Honour imposed a reduced aggregate sentence of four years and six months, with a non-parole period of two years and nine months commencing 22 March 2020. A finding of special circumstances was made, extending the parole period beyond the statutory default, to allow greater post-release supervision given the appellant's rehabilitation needs.

Orders Made

  • The sentence appeal is upheld in part; convictions confirmed and sentence varied.
  • Individual indicative sentences were set for each sequence, including:
  • Seq 02 (AOABH DV): 1 year 11 months
  • Seq 06 (Stalk/intimidate DV): 1 year 6 months
  • Seq 07 (AOABH DV): 1 year 6 months
  • Seq 13 (AOABH DV): 1 year 10 months
  • Seq 16 (AOABH DV): 1 year 10 months
  • Seq 20 (AOABH DV): 1 year 10 months
  • Seq 27 (Reckless GBH DV, incorporating Form 1 matters): 2 years
  • Various common assault and stalk/intimidate sequences between 4 months and 1 year 1 month
  • Aggregate sentence of 4 years 6 months imposed in lieu of the Local Court sentence.
  • Non-parole period of 2 years 9 months commencing 22 March 2020, expiring 21 December 2022.
  • Balance of sentence (1 year 9 months) commencing 22 December 2022, expiring 21 September 2024.
  • Total effective sentence as accumulated: 5 years with a non-parole period of 3 years.

Key Takeaways

  • Section 58 of the Crimes (Sentencing Procedure) Act 1999 imposes a five-year cap on the accumulation of Local Court sentences, and the District Court applied a strict construction of that limit in the appellant's favour, consistent with the principle that liberty-restricting provisions should be construed strictly.
  • Where a sentencing court cannot identify a discernible allowance for a guilty plea in either the indicated sentences or the aggregate, that absence may constitute appellable error even where the sentences would otherwise be within a permissible range.
  • Under Bugmy and Fernando, an offender's history of deprivation, disadvantage, and undiagnosed mental illness are legitimate mitigating factors that reduce moral culpability, even where the objective gravity of the offences is high. These principles applied on the re-hearing notwithstanding the serious nature of the domestic violence conduct.
  • Fresh evidence on appeal, such as a psychological report not before the original sentencing court, can form part of the re-hearing under s 17 of the Crimes (Appeal and Review) Act 2000 and may affect the sentence ultimately imposed by the District Court.
  • A finding of special circumstances may be appropriate where an offender has significant rehabilitation needs and community safety is better served by a longer period of supervised parole, provided the minimum custodial term still reflects the gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2000 (NSW), ss 11, 17
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 47, 58
- Criminal Procedure Act 1986 (NSW)
- Mental Health Act 2007 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Fernando v R (1992) 76 A Crim R 67
- R v Stoneham [2021] NSWSC 735
- Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37
- DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Brough v Director of Public Prosecutions [2014] NSWSC 1396
- Hoskins v R [2021] NSWCCA 169
- Howard v R [2019] NSWCCA 109
- Clarke-Jeffries v R [2019] NSWCCA 56
- Cherry v R [2017] NSWCCA 150
- Hurst v R [2017] NSWCCA 114
- BP v R [2010] NSW