AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 11 October 2023

Campbell v R

[2023] NSWCCA 258

Assault & violenceDomestic & family violencePublic order & justice offences

Citation: Campbell v R [2023] NSWCCA 258
Court: NSW Court of Criminal Appeal
Date: 11 October 2023
Judge(s): Mitchelmore JA, Dhanji J, Sweeney J (Sweeney J delivering the principal judgment)

Background

The appellant was sentenced in the District Court at Orange in February 2022 following early guilty pleas to three offences: aggravated detention with intent to obtain an advantage (occasioning actual bodily harm during the detention), destroying property (a mobile phone), and knowingly contravening an Apprehended Domestic Violence Order (ADVO). The offences arose out of a prolonged and violent incident against the appellant's partner in the early hours of 25 July 2020, during which the victim was assaulted repeatedly over approximately five hours, prevented from leaving, threatened with death, and eventually escaped through a bathroom window.

Following the assault, the appellant sent the victim a series of messages in breach of an ADVO, including an offer of $20,000 to "keep her mouth shut." The sentencing judge imposed an aggregate sentence of five years and four months imprisonment, with a non-parole period of three years and four months.

The appellant sought leave to appeal against that sentence on two grounds, challenging specific findings made by the sentencing judge. No other aspects of the sentence were contested.

  • Whether the sentencing judge erred in finding that the victim had sustained PTSD and other long-term consequences as a result of the offending, based on the Victim Impact Statement.
  • Whether the sentencing judge erred in characterising the ADVO contravention offence as being "towards the upper end of the range of objective seriousness."

Decision

Ground 1: PTSD and long-term consequences

The Court of Criminal Appeal rejected the first ground. The sentencing judge had drawn on the victim's Victim Impact Statement, which described ongoing psychological consequences including PTSD. The appellant argued the judge erred in accepting that material. The Court found no error in the judge's approach to the Victim Impact Statement or in the findings drawn from it. The ground was not established.

Ground 2: Objective seriousness of the ADVO contravention

The Court also rejected the second ground. The sentencing judge's characterisation of the ADVO contravention as being towards the upper end of the range of objective seriousness was challenged as excessive. The Court found the sentencing judge did not err in that assessment, having regard to the content and persistence of the messages sent in breach of the ADVO, including the attempt to pressure the victim into silence with a financial offer.

Resentencing exercise

Although both grounds failed, the Court conducted an independent resentencing exercise. The Crown had submitted that the sentencing judge's description of the principal offence as "high in the low range or low in the mid range" of objective seriousness may have understated its gravity. As the appellant did not respond to that submission, the Court did not disturb the original assessment. After taking into account all relevant matters, including the appellant's conduct in custody and programs undertaken while imprisoned, the Court concluded that its own indicative and aggregate sentences were no less than those imposed at first instance. Accordingly, leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge may properly rely on a Victim Impact Statement to support findings about long-term psychological consequences, including PTSD, where no challenge is made to the admissibility or content of that statement.
  • Persistent post-offence contact in breach of an ADVO, particularly where it includes attempts to intimidate or financially induce a victim to withdraw from proceedings, can properly support a finding of higher objective seriousness for the contravention offence.
  • In dismissing the appeal, the Court undertook an independent resentencing exercise and, finding its own sentence would be no lower than that originally imposed, declined to state its indicative figures, consistent with the approach in RO v R [2019] NSWCCA 183.
  • Where a Crown submission suggests a sentencing judge may have understated objective seriousness, but the appellant does not address that submission on appeal, the Court of Criminal Appeal may decline to form a different view from the original sentencing court.
  • Offending committed while already subject to an Intensive Corrections Order for prior domestic violence offences, combined with a history of similar conduct, will remain a significant sentencing consideration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(2)(b), 195(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Chan v R [2023] NSWCCA 206
- Culbert v R [2021] NSWCCA 38
- DPP v Smith [1961] 1 AC 280
- Hawat v R [2020] NSWCCA 121
- Kentwell v The Queen (2014) 252 CLR 601
- Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
- Mulato v R [2006] NSWCCA 282
- O'Brien v R [2023] NSWCCA 41
- R v Donovan [1934] 2 KB 498
- R v Newell [2004] NSWCCA 183
- R v Overall (1993) 71 A Crim R 170
- R v Thomas [2007] NSWCCA 269
- R v Tuala [2015] NSWCCA 8
- R v Youkhana [2004] NSWCCA 412
- RO v R [2013] NSWCCA 162
- RO v R [2019] NSWCCA 183
- Stewart v R [2012] NSWCCA 183
- The Queen v De Simoni (1981) 147 CLR 383
- Turnbull v R [2019] NSWCCA 97