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Court of Criminal Appeal 8 September 2023

Hayes v R

[2023] NSWCCA 226

Sexual offencesPublic order & justice offences
CRIME APPEAL AGAINST SENTENCE ASSESSMENT OF OBJECTIVE GRAVITY QUESTION OF MANIFEST EXCESS

Citation: Hayes v R [2023] NSWCCA 226
Court: Court of Criminal Appeal
Date: 8 September 2023
Judges: Harrison J, Wilson J, N Adams J

Background

The applicant pleaded guilty in the District Court to two offences arising from an incident on 5 September 2021 in Potts Point. He followed a woman into her apartment building, trailed her to the top floor, and after leaving, used the building intercom to tell her she was beautiful and press her to go for a drink with him. Police arrested him nearby shortly afterwards.

The applicant was sentenced by Judge Bennett SC to an aggregate term of four years imprisonment, with a non-parole period of three years. The indicative sentences were two years and three months for stalking or intimidation, and three years for entering a dwelling with intent to commit a serious indictable offence (stalking). The maximum penalties for those offences are five years and ten years respectively.

The applicant's criminal history was extensive and closely mirrored the present conduct. It included prior convictions for sexual intercourse without consent, indecent assault, and entering buildings to follow young women, spanning offences committed from his youth through to 2013. By notice filed in June 2023, the applicant sought leave to appeal the sentence.

  • Whether the sentencing judge erred by failing to separately assess the objective seriousness of the two offences, instead treating them as a single course of conduct
  • Whether the aggregate sentence of four years imprisonment was manifestly excessive

Decision

On ground 1, the Court found no error. The applicant argued that the sentencing judge's use of singular language, referring to "offending" rather than "offences," showed she had failed to differentiate between the two counts. Wilson J rejected this, noting that the words "offending" and "offending conduct" are capable of encompassing multiple offences simultaneously. N Adams J added that the sentencing judge had approached objective seriousness on the same basis as the parties themselves had argued it in the District Court, making the appellate complaint contrary to the applicant's own conduct below.

Leave to appeal was granted on ground 2, but the appeal was dismissed. Wilson J acknowledged the aggregate sentence was a stern one, but was not persuaded it crossed the threshold of manifest excess. The sentencing judge had properly weighed the applicant's extensive and strikingly similar prior offending, the absence of genuine remorse, his limited insight, and the need to protect the community.

The Court applied the principle from Veen v The Queen (No. 2) (1988) 164 CLR 465, which recognises that an offender's antecedent criminal history is legitimately relevant to show whether the instant offence reflects a continuing attitude of disobedience, and that retribution, deterrence, and community protection may each warrant a more severe penalty in such circumstances. N Adams J agreed the sentence was stern but was not satisfied it was unfair or unjust.

Orders Made

  • Leave to appeal granted on ground 2
  • Appeal dismissed

Key Takeaways

  • No error was established in a sentencing judge's use of collective language such as "offending" to describe two related charges, provided the assessment of objective seriousness is consistent with how the parties argued the matter below.
  • A complaint raised on appeal that was contrary to the applicant's conduct at first instance carried little weight with the Court of Criminal Appeal.
  • Under the principle in Veen v The Queen (No. 2), an offender's prior criminal history is relevant not merely to questions of leniency but to demonstrating a continuing attitude of disobedience and the need for deterrence and community protection.
  • Where prior convictions closely mirror the current offending in character and method, a stern aggregate sentence does not of itself constitute manifest excess.
  • In dismissing the appeal, the Court confirmed that the principles of retribution, specific deterrence, and protection of the community can together justify substantial custodial terms where an offender's history reveals a persistent pattern of predatory conduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 111(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14
- R v Hayes [2004] NSWCCA 156
- Flick v R [2023] NSWCCA 197
- Hughes v R [2018] NSWCCA 2
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Ragg v R [2022] NSWCCA 150
- Zreika v R [2012] NSWCCA 44