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Court of Criminal Appeal 31 August 2022

Thorp v R

[2022] NSWCCA 180

Assault & violenceDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE DOUBLE PUNISHMENT APPEALS APPEAL AGAINST SENTENCE

Citation: Thorp v R [2022] NSWCCA 180
Court: Court of Criminal Appeal, NSW
Date: 31 August 2022
Judges: Bell CJ, Bellew J, Ierace J (all agreeing)

Background

The applicant pleaded guilty in the District Court to two offences arising from a single incident on 8 April 2019: aggravated detain for advantage (under s 86(2)(b) of the Crimes Act 1900 (NSW)), and contravening an apprehended domestic violence order (ADVO) (under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)). A further intimidation offence was taken into account on a Form 1. At the time of the offences, an ADVO prohibited the applicant from approaching, assaulting, threatening, or intimidating the victim, with whom he had been in an on-again, off-again domestic relationship for approximately three years.

The incident occurred while the applicant and victim were travelling together in the applicant's vehicle. After becoming angry about text messages on the victim's phone, the applicant threatened her, restrained her freedom of movement, chased her through a car park when she fled, tackled her to the ground, and dragged her back toward the vehicle. Restaurant employees intervened and freed her. The victim sustained injuries to her arms, hands, knees, and shoulders, and was taken to hospital.

The sentencing judge imposed a fixed term of 2 months for the ADVO contravention, wholly consecutive to a sentence of 3 years and 3 months (with a non-parole period of 1 year and 9 months) for the detain offence. The effective total sentence was 3 years and 5 months, with a non-parole period of 1 year and 11 months. The applicant sought leave to appeal on two grounds: double punishment and manifest excess.

  • Whether the sentencing judge doubly punished the applicant for the ADVO contravention by: (a) treating that contravention as an aggravating feature of the detain offence, and (b) imposing a wholly consecutive sentence for the contravene ADVO offence
  • Whether the sentence imposed for the detain offence was manifestly excessive, having regard to the duration of the detention, the nature of the injuries, and comparable cases

Decision

Ground 1: Double Punishment

The Court of Criminal Appeal rejected the double punishment argument. The sentencing judge had taken the ADVO contravention into account only as part of the general context when assessing objective seriousness of the detain offence, not as a specific aggravating feature within the meaning of the Crimes (Sentencing Procedure) Act 1999 (NSW). The aggravating circumstance for the detain offence was the occasioning of actual bodily harm, not the ADVO breach. Accordingly, treating the ADVO contravention as contextual background did not amount to double punishment.

On the question of consecutive sentencing, the Court acknowledged that where two offences arise from the same criminal act, imposing entirely consecutive sentences may constitute double punishment. However, it is not the case that all offences arising from the same transaction must be made concurrent. Here, the Court found that the ADVO contravention was a distinct offence with a distinct purpose, namely the protection of the victim and the integrity of court orders. A short, wholly consecutive term was within the sentencing judge's discretion and did not produce a manifestly unjust result.

Ground 2: Manifest Excess

The Court rejected the submission that the detention was "fleeting" or the injuries "relatively minor." The CCTV footage and photographs showed a violent tackle, forcible dragging, and abrasions across multiple parts of the victim's body. The Court noted that the duration of detention was of limited relevance because, prior to the intervention of restaurant employees, the applicant had both threatened violence to prevent her from leaving and had already demonstrated a willingness to use force. The sentencing judge had also been significantly influenced by an assessment report indicating deep-seated anger and relationship issues that were difficult to address, giving particular weight to the protection of the community and the safety of the victim. Comparison with sentences in analogous cases, including Salvaggio and Jibran, did not disclose an error of principle. Leave to appeal on ground 2 was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • A sentencing court does not doubly punish an offender merely by treating an ADVO contravention as contextual background when assessing the objective seriousness of a related offence, provided the contravention is not also used as a statutory aggravating feature for that same offence.
  • Where two offences arise from the same transaction, entirely consecutive sentences are not automatically impermissible. The Court of Criminal Appeal confirmed that a short consecutive term for an ADVO contravention can be appropriate, given the distinct purpose of such orders in protecting victims and upholding the integrity of court processes.
  • The brevity of a detention does not automatically reduce the objective seriousness of an aggravated detain offence. Where threats and force were used to prevent escape before outside intervention ended the incident, the short duration carries limited mitigating weight.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal applied the principle from Pearce v The Queen and related authorities that sentences for multiple offences arising from the same facts must reflect all criminality without double counting, but need not be wholly concurrent.
  • Under s 86(2)(b) of the Crimes Act 1900 (NSW), the circumstance of aggravation is the occasioning of actual bodily harm; the co-existence of an ADVO contravention is a separate matter going to context, not to that aggravating element.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13, 14
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 33, 44, 54A, 68
- Criminal Appeal Act 1912 (NSW), s 5

Cases
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Salvaggio v R [2007] NSWCCA 136
- Jibran v R [2020] NSWCCA 86
- Tepania v R [2018] NSWCCA 247
- PW v R [2019] NSWCCA 298
- R v Dakkak [2020] NSWSC 1806
- R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130
- Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
- R v Dunn (2004) 144 A Crim R 180; [2004] NSWCCA 41
- R v Harris (2015) 70 MVR 412; [2015] NSWCCA 81
- R v Newell [2004] NSWCCA 183
- R v Sivell [2009] NSWCCA 286
- R v Wickham [2004] NSWCCA 193
- Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266