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Court of Criminal Appeal 6 September 2024

Ayoub v R

[2024] NSWCCA 168

Assault & violenceDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE TOTALITY ANTECEDENT AND CURRENT OFFENCES NON

Citation: Ayoub v R [2024] NSWCCA 168
Court: Court of Criminal Appeal, New South Wales
Date: 6 September 2024
Judges: Harrison CJ at CL, N Adams J, Dhanji J (judgment by Dhanji J, others agreeing)

Background

The appellant had been convicted of three offences of assault occasioning actual bodily harm against his then partner, committed between July and October 2022 in Gosford. A further offence of stalking and intimidation was taken into account on a Form 1. The offending included repeated physical assaults, harassment involving 113 phone calls over two days, and conduct of serious sexual violence.

The District Court sentenced the appellant to an aggregate term of 4 years and 9 months imprisonment with a non-parole period of 2 years and 10 months, commencing 1 October 2023. Each indicative sentence reflected a 25 per cent discount for guilty pleas entered in the Local Court. Importantly, the appellant had been on parole for an earlier nine-year sentence, imposed for domestic violence offences against a different victim some eight years prior, when he committed the current offences. His parole was subsequently revoked.

The revocation of parole meant the appellant served one year and four days on the balance of his earlier sentence concurrently with being held on remand for the current offences. The sentencing judge backdated the aggregate sentence and structured the indicative sentences with a degree of notional concurrence, in recognition of this overlap. The appellant sought leave to appeal, contending the sentencing judge had not gone far enough in applying the totality principle.

  • Whether the sentencing judge erred in applying the principles of totality when imposing the aggregate sentence for the current offences.
  • Specifically, whether the sentencing judge was required to treat the entire custodial period from the commencement of the earlier sentence as a single "total effective sentence" attracting further leniency for the current offences.
  • Whether the non-parole period imposed for the current offences was disproportionate when considered alongside the earlier sentence.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal. Dhanji J, with whom Harrison CJ at CL and N Adams J agreed, found that the sentencing judge had in fact applied totality principles, both between the individual current offences and with respect to the earlier sentence. The judge had backdated the commencement date and structured the indicative sentences to achieve a degree of concurrency with the balance of parole.

The appellant's central argument was that the entire period from the commencement of the earlier sentence in 2014 should be viewed as a continuous period of imprisonment, requiring further leniency. Dhanji J rejected this reasoning as flawed. The appellant had spent approximately 23 months and six days on parole before committing the current offences. Treating the parole period as equivalent to ongoing imprisonment, for the purpose of extracting additional sentencing benefit, was not supported in principle.

Dhanji J observed that if the earlier sentence had been a fixed term with no parole, resulting in liberty at around the same time, the appellant could not have made the same totality argument. The court noted that the appellant's reasoning would perversely give those on parole an entitlement to greater leniency than those who had completed their sentences entirely. The two sets of offences were also separated by eight years and involved different victims, making them quite remote from each other.

The court accepted that the earlier custodial history remained relevant, particularly its potential hardening effect on the appellant. However, the sentencing judge was clearly aware of that history and took it into account both in setting the commencement date and in determining the ratio between the non-parole period and the head sentence. The fact that the current offences were committed while on parole, and involved similar conduct, operated as an aggravating factor. No error was established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the totality principle does not require a sentencing court to treat a period spent on parole as equivalent to continuous imprisonment when calculating a "total effective sentence" spanning multiple offences years apart.
  • A significant gap in time between two sets of offences, here eight years, and the involvement of different victims, are material facts that reduce the weight of totality considerations between an earlier and a current sentence.
  • Committing offences while on parole for similar domestic violence offending constitutes an aggravating factor, and a sentencing court is entitled to weigh that aggravation against any mitigating effect of prior custodial history.
  • Backdating a sentence to achieve concurrency with a revoked parole period, and structuring indicative sentences with notional concurrence, can represent a sufficient and proper application of totality principles without requiring further reduction.
  • Questions of totality are affected by questions of fact and degree, and where a sentencing judge has identified and applied the relevant principles, the Court of Criminal Appeal will not intervene merely because a different approach might have been taken.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (stalk and intimidate)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47(5)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 (applied)
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 (considered)
- R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 (considered)
- Harris v R [2023] NSWCCA 44 (considered)
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115