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District Court 28 September 2022

Perrin (No.2) v R

[2022] NSWDC 702

Assault & violenceDomestic & family violence
APPEAL APPEAL AGAINST SENTENCE DOMESTIC VIOLENCE OFFENCES MULTIPLE OFFENCES RECKLESS WOUNDING ASSAULT OCCASIONING ACTUAL BODILY HARM

Citation: Perrin (No.2) v R [2022] NSWDC 702
Court: District Court of New South Wales
Date: 28 September 2022
Judge(s): Haesler SC DCJ

Background

The appellant had been sentenced in the Local Court on 24 June 2021 for multiple serious domestic violence offences, including reckless wounding, assault occasioning actual bodily harm, and common assault. The offences were directed at intimate partners and were found to reflect a complete disregard for the women he was in a relationship with.

On appeal to the District Court in August 2021, Haesler SC DCJ varied the sentence slightly, giving greater weight to the appellant's background under the principles in Bugmy v The Queen, while forming the view that a sentence exceeding five years was warranted. His Honour also reduced the five-year cap available under s 58 of the Crimes (Sentencing Procedure) Act 1999 to account for the appellant's guilty pleas.

The Crown brought a Stated Case to the Court of Criminal Appeal, which upheld it in R v Perrin [2022] NSWCCA 170. The CCA found that the District Court had erred in its application of s 58 and in its treatment of the guilty plea discount. The matter was remitted to the District Court for redetermination.

  • Whether the earlier sentence should stand following the Court of Criminal Appeal's finding of legal error in the application of s 58 of the Crimes (Sentencing Procedure) Act 1999
  • How s 58 operates when the notional (uncapped) aggregate sentence exceeds five years, particularly following the High Court's decision in Park v The Queen [2021] HCA 37
  • Whether a guilty plea discount should be applied to reduce the sentence below the five-year statutory cap in those circumstances
  • Whether the non-parole period should be varied on resentencing, given fresh evidence of the appellant's rehabilitation, the delays in proceedings, and the hardship of COVID-19 restrictions during custody

Decision

Haesler SC DCJ confirmed that the underlying findings about the seriousness of the offences, and the indicative (notional) sentences for each offence, remained unchanged. The court did not resile from its earlier view that the offending warranted a total sentence exceeding five years.

However, following the High Court's analysis in Park v The Queen, the court accepted that it had erred in applying s 58. Under the correct approach, where the notional aggregate sentence exceeds five years, the statutory cap itself operates as the sentence. A separate reduction for guilty pleas is not then carved off the capped figure. Accordingly, the aggregate sentence was fixed at the maximum of five years.

The principal dispute on remittal concerned the non-parole period. The prosecution accepted that special circumstances existed justifying a longer parole period, but argued the non-parole period must adequately reflect the gravity of the offending. The defence relied on fresh evidence of the appellant's maturing conduct, his engagement with rehabilitation programmes through Community Corrections, the delays caused by the appeal process, and the impact of strict COVID-19 conditions during his custody.

His Honour accepted the fresh evidence and found it to be heartening. Noting that many of the offences were a product of immaturity as well as background, and observing the appellant's apparent maturation, the court declined to extend the non-parole period. The original parole eligibility date of 21 December 2022 was preserved, with a non-parole period of two years and nine months from the commencement date of 22 March 2020.

Orders Made

  • Aggregate sentence of five years imprisonment, commencing 22 March 2020
  • Non-parole period of two years and nine months, with eligibility for release to parole on 21 December 2022
  • Parole period of two years and three months; sentence expires 21 March 2025
  • Release to parole subject to an order of the State Parole Authority, which must be satisfied that release is in the interests of community safety under s 135 of the Crimes (Administration of Sentences) Act 1999

Key Takeaways

  • Under s 58 of the Crimes (Sentencing Procedure) Act 1999, where a notional aggregate sentence exceeds the five-year cap applicable to Local Court and District Court appeal proceedings, the cap operates as the sentence. Following Park v The Queen [2021] HCA 37, a further reduction for guilty pleas is not applied to bring the sentence below that cap.

  • The District Court confirmed that its original indicative sentences for the individual offences remained appropriate, and that the seriousness of extensive domestic violence offending warranted a sentence exceeding five years in notional terms.

  • Fresh evidence of an offender's rehabilitation, maturation, and engagement with corrective programmes is a recognised basis for consideration when a non-parole period is under review on resentencing, consistent with the approach in Clarke-Jeffries v R [2019] NSWCCA 56.

  • Procedural delays arising from a Crown appeal, even where prosecuted promptly, and the hardship of COVID-19 conditions during custody, were factors the court weighed in declining to extend the non-parole period on remittal.

  • Release to parole at the end of the non-parole period is not automatic: the State Parole Authority must be satisfied that release is in the interests of community safety before making a parole order.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 58
- Crimes (Administration of Sentences) Act 1999 (NSW), s 135
- Crimes (Appeal and Review) Act 2000 (NSW)

Cases:
- Park v The Queen [2021] HCA 37
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Clarke-Jeffries v R [2019] NSWCCA 56
- R v Perrin [2022] NSWCCA 170
- Perrin v R [2021] NSWDC 408