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Court of Criminal Appeal 17 August 2023

Elwood v R

[2023] NSWCCA 200

Assault & violenceDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE ALLEGED MANIFEST EXCESS PRIOR RECORD OF DOMESTIC VIOLENCE DISADVANTAGED INDIGENOUS APPLICANT

Citation: Elwood v R [2023] NSWCCA 200
Court: Court of Criminal Appeal, New South Wales
Date: 17 August 2023
Judges: Adamson JA, Wright J, Fagan J

Background

The applicant, a 23-year-old Indigenous man, pleaded guilty in the Local Court to a series of offences committed over approximately 3.5 hours in the early morning of 29 December 2021 at a residential property in Bourke. The offences arose from a single violent episode directed primarily at his estranged partner, but also affecting his sister, her children, responding police officers, and the owner of a vehicle parked on the property.

The applicant arrived at his sister's home heavily intoxicated and carrying the jagged neck of a broken beer bottle. He slashed and stabbed his estranged partner with the broken glass, causing deep lacerations to her wrist, forearm, and lower leg. He also bit her, threatened to kill both her and his sister, smashed windows and external cladding of the home, and caused extensive damage to a parked vehicle. When two police officers arrived in response to an emergency call, the applicant threw projectiles at them, threatened them with a steel pole, and smashed the rear window of their marked vehicle.

The applicant had two prior domestic violence convictions against the same partner, dating from 2017 and 2020, and a final apprehended domestic violence order (ADVO) was in force at the time of the offending. In the District Court, Judge J Smith SC imposed an aggregate sentence of 5 years' imprisonment with a non-parole period of 2 years and 6 months, backdated to the date of arrest. The applicant sought leave to appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the aggregate sentence of 5 years' imprisonment with a 2 year and 6 month non-parole period was manifestly excessive in all the circumstances.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding the sentence was not manifestly excessive. The Court identified six aggravating features of the offending that justified a significant aggregate sentence.

First, the reckless wounding of the partner was serious, with photographs recording deep, irregular wounds to multiple sites. Second, the episode occurred in the presence of the applicant's own young children, one aged only 7 months, causing them to witness the violence. Third, the cycle of domestic violence against the same partner over several years meant the offending perpetuated intergenerational trauma. Fourth, the applicant's sister was also a victim of his threats and intimidation, and her children were present and frightened.

Fifth, the Court noted that the damage to the home and vehicle would have imposed a significant economic burden on victims of modest means. Sixth, the applicant's conduct toward responding police, who had attended to protect vulnerable women and children, was serious and dangerous. Rather than being brought to order by the police presence, the applicant escalated his violence toward them.

The Court accepted that the sentencing judge had given full recognition to the applicant's subjective case, including his youth, disadvantaged Indigenous background, lack of prior full-time custodial experience, and stated desire for rehabilitation. The Court observed that these factors were reflected in the shortening of the non-parole period, which amounted to only 50% of the head sentence, creating a meaningful period of supervised parole if the applicant maintained good behaviour.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a significant degree of notional accumulation in an aggregate sentence is well justified where a single episode of offending produces multiple victims harmed in different ways and to different degrees.
  • The presence of children during serious domestic violence, the perpetuation of an established cycle of violence against the same victim, and escalating aggression toward police were all treated as factors warranting a substantial sentence.
  • A non-parole period set at 50% of the head sentence, where the standard proportion would ordinarily be two-thirds, reflected adequate weight being given to subjective mitigating factors including youth, Indigenous disadvantage, and rehabilitation prospects.
  • Prior domestic violence convictions against the same partner are a relevant aggravating circumstance when sentencing for further domestic violence offending, and an ADVO in force at the time of the offending adds to the seriousness of the conduct.
  • No error was established in the District Court's approach to accumulation or to the weighing of subjective and objective factors, and the aggregate sentence fell within the range available to the sentencing judge.

Legislation and Cases Referenced

Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)
- Crimes Act 1900 (NSW), ss 35(4), 59(1), 195(1)

Cases: No specific cases were cited in the portions of the judgment provided.