Citation: R v Fraser [2022] NSWDC 36
Court: District Court of New South Wales
Date: 24 February 2022
Judge: Abadee DCJ
Background
The appellant had been convicted in the Gosford Local Court of seven offences committed between September 2019 and September 2021. Those offences included acting with intent to influence a witness, two contraventions of an apprehended domestic violence order (AVO), three counts of driving while disqualified, and one count of dangerous driving. The offences arose in the context of an on-again, off-again domestic relationship that had ended in March 2019, after which a two-year final AVO was made protecting his former partner.
The witness-influencing offence involved the appellant sending text messages to the protected person the day before a court hearing, offering money and suggesting she need not attend. The driving offences occurred in September 2021, with the most serious involving dangerous driving. The Local Court imposed an aggregate sentence of 18 months' imprisonment with a 12-month non-parole period, backdated to 16 September 2021.
The appellant brought a severity appeal to the District Court, arguing the sentences were excessive. He relied, in part, on fresh affidavit evidence not placed before the Magistrate, seeking to explain the circumstances of his offending conduct.
Legal Issues
- Whether the indicative sentences and the aggregate sentence imposed by the Local Court were manifestly excessive.
- What weight, if any, should be given to fresh affidavit evidence tendered by the appellant on the severity appeal, including evidence from the appellant himself and from the protected person's aunt.
- Whether the appellant's explanations for his conduct demonstrated genuine acceptance of responsibility and insight into his offending.
- Whether the aggregate sentence adequately reflected the totality principle having regard to the appellant's criminal history and the applicable sentencing considerations.
Decision
Abadee DCJ dismissed the appeal, upholding the aggregate sentence of 18 months' imprisonment and the 12-month non-parole period. His Honour found that, while some individual indicative sentences differed slightly from those imposed below, the overall aggregate sentence was appropriate and could not be disturbed without producing a result that was manifestly inadequate.
The court addressed the fresh affidavit evidence with considerable scepticism. The appellant swore his affidavit only the day before the appeal hearing, well after the original sentencing. His Honour noted this timing raised initial doubt about credibility, particularly as the community corrections officer had recorded that he had not sought to minimise his offending to her. In cross-examination, the appellant was found to have acted as an advocate in his own cause, offered rambling and barely responsive answers, and showed no real insight or genuine acceptance of responsibility.
The affidavit evidence from the protected person's aunt was given limited weight. To the extent it purported to establish the protected person's state of mind, it was objectionable as hearsay. The aunt's evidence was accepted only as relevant to her own conduct and, to a limited degree, the appellant's state of mind at the time of the offending.
His Honour identified that the appellant's extensive prior criminal record, the serious nature of the domestic violence and witness-influencing conduct, and the heightened requirements of general and specific deterrence, community protection, and accountability all weighed heavily against any reduction. The only adjustment made was a technical recalculation of time already served in custody, which shifted the commencement date of the sentence rather than altering its length.
Orders Made
- The severity appeal was dismissed.
- The aggregate sentence of 18 months' imprisonment was confirmed, with the commencement date varied to 16 September 2021 and expiry confirmed as 15 March 2023.
- The non-parole period of 12 months was confirmed, expiring 15 September 2022.
- Automatic licence disqualification periods were confirmed and could not be disturbed by the court.
Key Takeaways
- Fresh evidence is permissible on a severity appeal, but evidence tendered for the first time on the eve of an appeal, particularly where it conflicts with earlier representations to corrections authorities, may attract significant credibility doubt.
- Where an appellant's affidavit evidence in cross-examination demonstrates a lack of genuine insight and acceptance of responsibility, that finding diminishes the weight given to any claimed remorse or contrition.
- Hearsay evidence about a third party's state of mind carries very little weight in sentencing proceedings, even where formal rules of evidence apply with less rigidity; such evidence may be accepted only on the narrow basis of explaining the deponent's own conduct or the defendant's state of mind.
- In dismissing the appeal, the District Court confirmed that an aggregate sentence must be viewed in totality: even where individual indicative sentences are adjusted on appeal, the aggregate may be upheld if it correctly reflects the overall criminality.
- An extensive prior criminal record, combined with offences involving domestic violence and the administration of justice, elevates the significance of general and specific deterrence, community protection, and accountability as sentencing considerations under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) s 323 (acting with intent to influence a witness)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14 (contravention of AVO)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 23
- Road Transport Act 2013 (NSW) ss 54, 117
Cases:
- Browning v R [2015] NSWCCA 147
- Lai v R [2021] NSWCCA 217
- R v Burton [2008] NSWCCA 128
- R v Edwards (1996) 90 A Crim R 510
- R v Prospero [2022] NSWDC 26
- Van Eeden v R [2012] NSWCCA 18