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Court of Criminal Appeal 24 May 2023

Lawrence v R

[2023] NSWCCA 110

Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE FURTHER OFFENCES TAKEN INTO ACCOUNT QUESTION OF TREATMENT OF DRUG ADDICTION QUESTION OF MANIFEST EXCESS

Citation: Lawrence v R [2023] NSWCCA 110
Court: NSW Court of Criminal Appeal
Date: 24 May 2023
Judges: Gleeson JA, Davies J, Wilson J

Background

The applicant was sentenced in the District Court at Campbelltown in August 2021 for two principal offences: intimidation with intent to cause harm and aggravated detention of a person with intent to intimidate. Both were domestic violence offences. Six further offences were taken into account on Form 1 documents, including multiple contraventions of an Apprehended Domestic Violence Order (ADVO).

The offending occurred in the early hours of 12 November 2019, when the applicant accosted his former de facto partner while subject to an ADVO made for her protection. He had been released from prison just weeks earlier, having previously been imprisoned for assaulting and intimidating the same woman and breaching earlier court orders. Over approximately nine hours, the applicant drove the victim at high speed between south-western Sydney and the Wollongong area, assaulting, threatening, and abusing her throughout. The ordeal ended only when the victim fled the vehicle despite the applicant's threats to kill her.

The sentencing judge imposed an aggregate sentence of 6 years and 6 months imprisonment with a non-parole period of 4 years, reflecting a 10% discount for late guilty pleas. The applicant sought an extension of time and leave to appeal, advancing five grounds of appeal against sentence.

  • Whether the sentencing judge erred by treating the applicant's criminal history as an aggravating factor, given his deprived background and mental health conditions
  • Whether the sentencing judge erred in assessing objective seriousness without separately accounting for the applicant's reduced moral culpability
  • Whether the sentencing judge erred in finding that drug addiction formed in childhood did not constitute a separate mitigating factor
  • Whether the sentencing judge double-counted the presence of a knife, both in fixing objective seriousness and as a standalone aggravating factor
  • Whether the sentence was manifestly excessive

Decision

Ground 1: Criminal history as an aggravating factor. The Court held there was no error. An offender's deprived background or mental health impairment may reduce moral culpability and the weight given to general deterrence, but those features do not displace the statutory operation of s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 or the principle in Veen v The Queen (No 2) (1988) 164 CLR 465, which recognises that prior convictions are relevant to sentencing. The sentencing judge used the phrase "aggravating factor" to denote a feature relevant to the overall sentence, not one that elevated the objective gravity of the offences. No error was established.

Ground 2: Objective seriousness and moral culpability. The Court confirmed that objective gravity and moral culpability are distinct considerations. The sentencing judge properly assessed the objective gravity of the offences by reference to their nature, duration, and the sustained degradation of the victim. The applicant's deprived background and resulting mental health difficulties were relevant to moral blameworthiness and general deterrence, but they were not factors that bore on the gravity of the offending itself. The Court found no error in that approach.

Ground 3: Drug addiction formed in childhood. The Court rejected the proposition that a drug addiction originating in a deprived childhood must be treated as a separate and distinct mitigating factor in addition to the background from which it arose. The sentencing judge had properly treated the addiction as a product and symptom of the applicant's disadvantaged upbringing and mental health issues, and gave appropriate mitigating weight to those circumstances as a whole. The Court noted it will be rare for drug addiction, standing alone, to constitute a discrete mitigating factor.

Grounds 4 and 5: Double counting and manifest excess. On ground 4, the Court held that a finding of double counting cannot rest on the number of times a feature is mentioned in a sentencing judgment; what matters is the use made of that feature. No impermissible double counting was established. On ground 5, the Court found the sentence was, if anything, lenient. Applying the principle stated by the High Court in Munda v Western Australia (2013) 249 CLR 600, a sentence lower than that imposed would have failed to vindicate the human dignity of the victim and the community's legitimate interest in the denunciation of serious domestic violence. The appeal was dismissed on all grounds.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A deprived background or mental health impairment may reduce moral culpability and the weight given to general deterrence, but those features do not prevent a sentencing court from treating prior convictions as relevant to the appropriate sentence under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 and the Veen (No 2) principle.
  • Objective gravity and moral culpability are separate sentencing considerations. The nature, duration, and seriousness of the offending go to objective gravity; a difficult background and mental health conditions go to moral blameworthiness and general deterrence.
  • Drug addiction arising from childhood deprivation does not automatically attract separate, additional mitigating weight beyond the weight already given to the underlying disadvantage from which it flows. The Court of Criminal Appeal confirmed such a finding will be appropriate only in rare cases.
  • Double counting in sentencing is assessed by examining the use made of a particular feature, not by counting how many times it is mentioned in the judgment.
  • In dismissing the manifest excess ground, the Court applied Munda v Western Australia to emphasise that sentencing for serious domestic violence must accord due recognition to the human dignity of the victim and avoid treating victims of domestic violence as second-class citizens under the law.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(2)(b), 154A(1)(a), 154C(1), 154C(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(2)(d), 32, 33(2)
- Criminal Procedure Act 1986 (NSW), ss 166, 167

Cases
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DR v R [2022] NSWCCA 151
- DS v R; DM v R [2022] NSWCCA 156
- Hayek v R [2016] NSWCCA 126
- Biddle v R [2017] NSWCCA 128
- Tepania v R [2018] NSWCCA 247