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Court of Criminal Appeal 22 July 2022

Ladas v R

[2022] NSWCCA 160

Assault & violenceDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE DOMESTIC VIOLENCE OFFENCES DYSFUNCTIONAL BACKGROUND REDUCED MORAL CULPABILITY

Citation: Ladas v R [2022] NSWCCA 160
Court: Court of Criminal Appeal, New South Wales
Date: 22 July 2022
Judges: Beech-Jones CJ at CL, Wilson J, Dhanji J

Background

The appellant pleaded guilty in the District Court to a series of domestic violence offences committed over approximately two and a half years against his intimate partner, with whom he had a child. The offending included assault, intimidation, threats made with a baton, and other related conduct, and occurred against a backdrop of prolonged drug abuse, financial stress, and relationship conflict. The offences were reduced to nine substantive counts, with a further ten offences taken into account on a Form 1 and one additional offence on a s 166 certificate.

At first instance, the sentencing judge imposed an aggregate term of 10 years' imprisonment with a non-parole period of 7 years and 6 months. The sentencing judge made a finding that the appellant's moral culpability was reduced, having regard to his disadvantaged and dysfunctional background, but the appellant argued that finding was not meaningfully reflected in the sentence ultimately imposed.

The appellant sought leave to appeal to the Court of Criminal Appeal on three grounds: that his disadvantaged background was not properly taken into account; that special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were not found; and that the sentence was manifestly excessive.

  • Whether the sentencing judge failed to take into account, or properly take into account, the appellant's disadvantaged upbringing in assessing his moral culpability and calibrating the weight of sentencing factors such as general deterrence, specific deterrence, rehabilitation, and community protection.
  • Whether the sentencing judge erred by failing to find special circumstances warranting a longer parole period relative to the head sentence.
  • Whether the aggregate sentence of 10 years with a non-parole period of 7 years and 6 months was manifestly excessive.

Decision

Ground 1: Moral culpability and disadvantaged background

The Court found that, while the sentencing judge had made a finding of reduced moral culpability arising from the appellant's background, the balance of the sentencing remarks and the sentences actually imposed indicated that finding was either not taken into account at all, or that the reasons failed to explain how it was considered. Beech-Jones CJ at CL observed that, in some cases, how such a finding has been weighed may be implicit in the reasons, but the sentencing outcome here could not sustain that inference.

The Court emphasised that a finding of reduced moral culpability does not automatically produce a lower sentence, particularly in domestic violence matters where community protection is a weighty consideration. However, the error lay in the sentences for four specific sequences being at or very close to the applicable maximum, in circumstances where the finding of objective seriousness did not justify a sentence at or near the maximum, even accounting for the Form 1 offences.

Grounds 2 and 3: Special circumstances and manifest excess

The Court accepted that special circumstances were warranted, primarily because of the appellant's need for treatment arising from his background and related drug addiction. The Court also found the original aggregate sentence manifestly excessive and proceeded to resentence the appellant.

Resentencing

Dhanji J proposed an aggregate sentence of 6 years with a non-parole period of 4 years. Beech-Jones CJ at CL, with Wilson J agreeing on this point, considered that the period over which the offending occurred and the weight properly due to community protection required a somewhat longer sentence. The Court ultimately imposed an aggregate sentence of 8 years' imprisonment with a non-parole period of 5 years, both to run from 9 March 2020.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Colefax SC DCJ on 9 November 2020 quashed.
  • In lieu thereof, an aggregate sentence of 8 years' imprisonment imposed, commencing 9 March 2020 and expiring 8 March 2028.
  • Non-parole period of 5 years, commencing 9 March 2020 and expiring 8 March 2025.
  • Balance of term of 3 years, commencing 9 March 2025 and expiring 8 March 2028.

Key Takeaways

  • A sentencing court's finding of reduced moral culpability arising from a disadvantaged background must be reflected in the sentence imposed, or the reasons must explain how that finding was weighed against competing factors. A finding that remains unexplained and apparently unactioned in the final sentence constitutes error.
  • Under the principles in Bugmy v The Queen and Munda v Western Australia, reduced moral culpability does not mechanically produce a lower sentence. In domestic violence cases especially, the need to protect the community can significantly moderate, or even outweigh, the mitigatory effect of a difficult background.
  • Sentences at or near the statutory maximum require a finding of objective seriousness sufficient to justify that outcome. The Court of Criminal Appeal confirmed that Form 1 offences do not of themselves supply the justification for maximum or near-maximum sentences where objective seriousness has been assessed more moderately.
  • Special circumstances (warranting a longer balance of term relative to the non-parole period) were established here by the appellant's need for rehabilitation addressing the specific background and drug-related issues that contributed to the offending.
  • The Court of Criminal Appeal divided on the precise aggregate sentence on resentencing, with the majority view reflecting that the extended duration of the offending and the importance of community protection required a sentence above that proposed by Dhanji J, resulting in a final aggregate of 8 years rather than 6.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 37(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 35A, 44, 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v Engert (1995) 84 A Crim R 67
- BT v R [2019] NSWCCA 147
- GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Khawaja v R [2014] NSWCCA 80
- Kliendienst v R [2020] NSWCCA 98
- R v Ladas [2020] NSWDC 832