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Court of Criminal Appeal 21 December 2022

Ward v R

[2022] NSWCCA 290

Assault & violenceTheft & propertyDomestic & family violence
CRIME SENTENCE APPEAL NO ERROR SHOWN MANIFEST EXCESS SENTENCE PLAINLY UNJUST RESENTENCED

Citation: Ward v R [2022] NSWCCA 290
Court: NSW Court of Criminal Appeal
Date: 21 December 2022
Judge(s): Basten AJA, Harrison J, Fagan J (unanimous)

Background

The applicant, a man in his mid-twenties, pleaded guilty in the District Court at Wollongong to one count of specially aggravated break, enter and commit a serious indictable offence under s 112(3) of the Crimes Act 1900 (NSW). The charge arose from an extended and violent assault on his former domestic partner at her home in the early hours of 21 June 2020. The circumstance of special aggravation was that he wounded the victim during the attack.

The offence occurred against a prolonged background of domestic abuse. The applicant and the victim had been in a relationship since early 2018, had two children together, and the applicant had accumulated a prior record of offending against the victim, including breaching an Apprehended Violence Order (AVO) and an Intensive Correction Order (ICO) in force at the time of the principal offence.

After applying a 25% discount for the early guilty plea, the sentencing judge imposed a sentence of 8 years imprisonment with a non-parole period of 4 years and 9 months. Three additional offences (property damage, common assault, and intimidation) were taken into account on a Form 1. The applicant sought leave to appeal on two grounds: error in assessing the effect of his mental health on moral culpability, and manifest excess.

  • Whether the sentencing judge erred by failing to consider the impact of the applicant's mental health on his moral culpability and the need for deterrence.
  • Whether the sentence of 8 years with a non-parole period of 4 years and 9 months was manifestly excessive having regard to comparable cases, particularly those involving domestic break and enter offences.

Decision

Ground 1: Mental health and moral culpability. The Court found no error in the sentencing judge's treatment of the applicant's mental health. Ground 1 was dismissed.

Ground 2: Manifest excess. Fagan J (with whom Basten AJA and Harrison J agreed) found that the sentence was manifestly excessive when measured against comparable decisions. The Court examined cases involving the same offence committed in a domestic setting, where sentences after similar discounts had ranged significantly below 8 years. Notably, in R v Cheh [2009] NSWCCA 134, a case with broadly similar objective facts, a sentence of 6 years (non-parole period of 4 years) was described by the Court of Criminal Appeal as already being "at the more severe end of the range." The sentence in Kelly v R [2007] NSWCCA 357, involving comparable facts, resulted in 4 years with a non-parole period of 3 years after a 25% discount.

Fagan J accepted that the domestic context of the offending was an aggravating factor, that the facts were objectively serious, and that the applicant's prior history of offending against the same victim was significant. Nevertheless, those features had been reflected in the comparable cases and did not justify a sentence so far above the established range. The Court found the sentence plainly unjust and resentenced the applicant.

The Court also accepted that special circumstances existed warranting a departure from the statutory default ratio between the non-parole period and the head sentence. The same 60% ratio applied by the sentencing judge was retained on resentencing.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 7 May 2021 quashed.
  • In lieu, the applicant sentenced to imprisonment for 5 years and 6 months, commencing 20 August 2020 and expiring 19 February 2026, with a non-parole period of 3 years and 3 months expiring 19 November 2023.
  • Earliest parole eligibility date: 19 November 2023.

Key Takeaways

  • The Court of Criminal Appeal confirmed that comparable domestic break and enter cases (particularly R v Cheh and Kelly v R) are the appropriate reference point when assessing whether a sentence for a s 112(3) offence committed in a domestic setting is within range.
  • No error was established in the sentencing judge's approach to the applicant's mental health and its effect on moral culpability; that ground was dismissed without difficulty.
  • A sentence of 8 years (after a 25% discount) for a specially aggravated break and enter involving wounding in a domestic context was held to be plainly unjust, placing it outside the range established by comparable authority.
  • Where special circumstances are found to exist, the Court may depart from the statutory default ratio between non-parole period and head sentence; here the 60% ratio adopted at first instance was preserved on resentencing.
  • Cases involving multiple offenders or non-domestic settings were regarded as insufficiently comparable for sentencing benchmarking purposes in this type of matter.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 112(3), 195(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Harper v R [2017] NSWCCA 159
- Hunter v R [2020] NSWCCA 285
- Kelly v R [2007] NSWCCA 357
- McDonald v R [2014] NSWCCA 127
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Campbell [2014] NSWCCA 102
- R v Cheh [2009] NSWCCA 134
- R v Ford [2020] NSWCCA 99
- R v Primmer [2020] NSWCCA 50