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Court of Criminal Appeal 10 August 2022

ST v R

[2022] NSWCCA 169

Assault & violenceDomestic & family violence
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT APPEALS APPEAL AGAINST SENTENCE

Citation: ST v R [2022] NSWCCA 169
Court: Court of Criminal Appeal, NSW
Date: 10 August 2022
Judge(s): Ward P, Harrison J, Wright J

Background

The applicant (identified by the pseudonym ST) was convicted by jury in the District Court on five domestic violence offences arising from conduct against two former partners and the daughter of one of those partners. The offences spanned periods between 1987 and 2006 and included assault occasioning actual bodily harm, detaining for advantage, and maliciously inflicting grievous bodily harm. The applicant was acquitted on five counts of sexual intercourse without consent, and the jury was unable to reach a verdict on one further count.

At sentencing, the applicant received an aggregate term of four years' imprisonment with a non-parole period of two years and eight months. The sentencing judge also imposed indicative sentences for each individual offence, including for three common assault offences dealt with on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW).

The applicant sought leave to appeal both his conviction on count 8 (maliciously inflicting grievous bodily harm) and his sentence on three grounds. The Crown conceded error in one of the sentence grounds, which triggered a fresh exercise of the sentencing discretion by the Court of Criminal Appeal.

  • Whether the jury's verdict on count 8 was unreasonable or unsupported by the evidence, specifically whether the loss of a front tooth could constitute "grievous bodily harm" within the meaning of the Crimes Act 1900 (NSW)
  • Whether the indicative sentences were manifestly excessive
  • Whether the sentencing judge failed to consider any penalty other than imprisonment
  • Whether the indicative sentences imposed for related offences 9 and 12 (common assault offences on the s 166 Certificate) were contrary to law

Decision

Conviction appeal: grievous bodily harm and loss of a tooth

The applicant argued that the injury sustained by the complainant (KR) did not meet the legal threshold for "grievous bodily harm" under the Crimes Act. The Court rejected this argument. There was ample evidence that the applicant's punch to the complainant's face caused the loss of at least one front tooth, and it was open to the jury to conclude that this amounted to serious disfigurement. The Court affirmed that loss of a front tooth can constitute grievous bodily harm within the statutory definition, and the conviction was not unreasonable on the evidence.

Sentence appeal: the conceded error

The Crown conceded that the indicative sentences for related offences 9 and 12 were erroneous as a matter of law. That concession required the Court to exercise its sentencing discretion afresh. However, the Court noted that re-sentencing is not mandatory where the same or a greater sentence would be appropriate. After considering the gravity of the offending, the applicant's subjective circumstances, and the purposes of sentencing, the Court concluded that no different sentence was warranted.

Sentence appeal: remaining grounds

Because the conceded error on the third sentencing ground required the Court to re-examine the sentence in full, it was unnecessary to rule separately on whether the sentences were manifestly excessive or whether the sentencing judge had failed to consider alternatives to imprisonment. The Court independently concluded that a custodial sentence was the only appropriate response, given the need for general and specific deterrence and the applicant's lack of insight into his offending. The aggregate sentence of four years with a non-parole period of two years and eight months was confirmed.

Orders Made

  • Leave to appeal from conviction granted; conviction appeal dismissed
  • Leave to appeal from sentence granted; sentence appeal dismissed

Key Takeaways

  • Loss of a front tooth can constitute "serious disfigurement" and therefore "grievous bodily harm" under the Crimes Act 1900 (NSW), provided the evidence supports that conclusion beyond reasonable doubt.
  • A conceded error in the specification of indicative sentences for offences dealt with on a s 166 Certificate is an error of a kind that triggers a fresh exercise of the sentencing discretion by the Court of Criminal Appeal.
  • Under the approach confirmed in Kentwell v R (2014) 252 CLR 601, re-sentencing is not required where the appellate court concludes that the same or a greater sentence is appropriate after reviewing the matter afresh.
  • In dismissing the sentence appeal, the Court of Criminal Appeal endorsed the trial judge's emphasis on general deterrence and denunciation as particularly significant sentencing considerations in domestic violence matters.
  • Specific deterrence retained independent weight where, as here, the offender demonstrated no insight into his offending and no remorse, notwithstanding evidence of some capacity for rehabilitation following a prior conviction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4, 35(1)(b), 59(1), 61, 61D(1), 61E(1A), 61I, 90A
- Criminal Appeal Act 1912 (NSW), s 7(2)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5

Cases
- AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Cherry v R [2017] NSWCCA 150
- GAX v R (2017) 344 ALR 489; [2017] HCA 25
- Goodbun v R [2020] NSWCCA 77
- Hamilton v R [2020] NSWCCA 80
- Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Libke v R (2007) 230 CLR 559; [2007] HCA 30
- M v R (1994) 181 CLR 487; [1994] HCA 63
- Mehajer v R (2014) 244 A Crim R 15; [2014] NSWCCA 167
- MM v R [2018] NSWCCA 158
- Morris v R (1987) 163 CLR 454; [1987] HCA 50
- Mundine v R [2017] NSWCCA 97
- Patsan v R [2018] NSWCCA 129
- Pell v R (2020) 268 CLR 123; [2020] HCA 12
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v JD [2018] NSWCCA 233
- R v Kilic (2016) 259 CLR 256; [2016] HCA 48
- R v Miller [1951] VLR 346
- Swan v R [2016] NSWCCA 79