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Court of Criminal Appeal 27 March 2023

Lee v R

[2023] NSWCCA 70

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE INTIMIDATION OFFENCE APPEAL DISMISSED

Citation: Lee v R [2023] NSWCCA 70
Court: NSW Court of Criminal Appeal
Date: 27 March 2023
Judge(s): Price J, Wilson J, Dhanji J

Background

The appellant pleaded guilty in the Local Court to two offences: intimidation under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and specially aggravated detain for advantage under the Crimes Act 1900 (NSW). A further offence of recklessly wound in company was taken into account on a Form 1 in relation to the detain offence.

The intimidation offence arose from an incident in Wagga Wagga in July 2020, during which the appellant used a gas bottle blowtorch to menace a robbery victim at close range. The detain offence occurred in October 2020 at Junee, when the appellant and others broke into a man's home in the early hours of the morning, detained him and caused him actual bodily harm in the course of what amounted to an attempted robbery.

The appellant was sentenced in the District Court to an aggregate term of 6 years and 3 months imprisonment, with a non-parole period of 4 years and 3 months. He sought leave to appeal, contending that the sentencing judge's findings on objective seriousness were not open on the facts, and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge's assessment of the objective seriousness of the intimidation offence was open on the facts.
  • Whether the sentencing judge's assessment of the objective seriousness of the specially aggravated detain offence was open on the facts.
  • Whether the aggregate sentence of 6 years and 3 months was manifestly excessive, having regard to the objective seriousness findings, the appellant's subjective case, and the principles in Bugmy v The Queen.

Decision

Ground 1: Objective seriousness

The Court confirmed that a finding of objective seriousness is quintessentially a matter for the sentencing judge and is reviewable only on a limited basis, requiring the appellant to establish error in the House v The King sense. In the absence of a formal challenge and full argument on whether a different approach was warranted, the Court declined to depart from this established line of authority.

On the intimidation offence, the sentencing judge had found the conduct fell "at the lower end of the mid-range." The Court accepted that, given the broad range of conduct capable of constituting intimidation, this assessment was open. On the detain offence, the Court found the sentencing judge's assessment was open having regard to the nature of the offending, even if it was not the only conclusion available. The Court also noted there is questionable utility in comparing a single-case finding of objective seriousness with the finding under appeal.

Wilson J added that the more orthodox approach under House v The King made the appellant's argument difficult to sustain. His Honour observed that the appellant had not taken up an opportunity the sentencing judge had offered to argue against his Honour's preliminary view, which pointed to the correctness of that conclusion.

Ground 2: Manifest excess

The Court applied the standard that an aggregate sentence must be unreasonable or plainly unjust before appellate intervention is warranted. The sentencing judge had properly considered the facts and circumstances of both offences, given due weight to the subjective case and matters of mitigation, and arrived at an aggregate that the Court of Criminal Appeal considered neither unfair nor unjust. Noting that the detain offence was by a significant margin the more serious of the two principal offences, and comparing it broadly to armed robbery guideline sentencing, the Court was not persuaded that the aggregate sentence was excessive.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A challenge to a sentencing judge's finding of objective seriousness requires demonstrated House v The King error. The Court of Criminal Appeal confirmed this remains the applicable standard in the absence of formal argument for a different approach.
  • In dismissing Ground 1, the Court of Criminal Appeal declined to follow a suggested alternative approach to reviewing objective gravity assessments that had been postulated in Fuller v R [2022] NSWCCA 203, given it had not been formally argued.
  • Where a sentencing judge has considered all relevant features of the offending in context and reached a conclusion within the available range, no error is established simply because a different conclusion might also have been open.
  • Comparing a finding of objective seriousness on appeal with the finding in a single prior decision has questionable utility, as confirmed by reference to R v Bonett and Lami v R.
  • An aggregate sentence survives challenge on the ground of manifest excess unless it is unreasonable or plainly unjust, consistent with the standard applied in Obeid v R (2017) 96 NSWLR 155.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(1), 86(2), 86(3), 86(3)(b)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- House v The King (1936) 55 CLR 499
- Bugmy v The Queen (2013) 249 CLR 571
- Mulato v R [2006] NSWCCA 282
- Greentree v R [2018] NSWCCA 227
- Magro v R [2020] NSWCCA 25
- Ahmad v R [2021] NSWCCA 30
- Fuller v R [2022] NSWCCA 203
- Obeid v R (2017) 96 NSWLR 155
- JM v R (2014) 245 A Crim R 528
- R v Bonett [2009] NSWCCA 135
- Lami v R [2021] NSWCCA 295
- R v Henry (1999) 46 NSWLR 346