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Court of Criminal Appeal 11 September 2024

R v Stephens

[2024] NSWCCA 170

Assault & violenceFirearms & weaponsDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE BY CROWN AGAINST INADEQUACY FACTO PARTNER RESPONDENT RESENTENCED

Citation: R v Stephens [2024] NSWCCA 170
Court: NSW Court of Criminal Appeal
Date: 11 September 2024
Judges: Harrison CJ at CL; Hamill J; Chen J

Background

The respondent pleaded guilty to 14 domestic violence offences committed against his former de facto partner over a period of nearly two years. The offences comprised seven counts of assault occasioning actual bodily harm, five counts of intentional choking without consent, and two counts of being armed with intent to commit an indictable offence.

In December 2023, the sentencing judge in the District Court imposed an aggregate term of 4 years and 6 months imprisonment, with a non-parole period of 2 years and 3 months. The sentencing judge made guarded findings about the respondent's rehabilitation prospects and found no evidence of remorse. He also found special circumstances, reducing the ratio of non-parole period to head sentence from the statutory 75% to 50%.

The Crown appealed to the Court of Criminal Appeal on the single ground that the sentence was manifestly inadequate.

  • Whether the aggregate sentence was manifestly inadequate, having regard to the seriousness of the offending and the respondent's subjective circumstances
  • Whether the sentencing judge gave sufficient weight to specific deterrence and community protection, particularly in the context of domestic violence offending
  • Whether the sentencing judge's approach to totality was flawed, given the indicative sentences imposed for individual counts
  • Whether the sentencing judge engaged in impermissible double counting by using the respondent's rehabilitation prospects both to reduce the aggregate sentence and to justify a finding of special circumstances

Decision

The Court unanimously allowed the appeal and quashed the original sentence, proceeding to resentence the respondent. Chen J (with whom Harrison CJ at CL agreed) delivered the principal reasons; Hamill J agreed with the orders but offered separate observations.

Chen J identified several factors that, individually and cumulatively, supported an inference that the sentencing discretion had miscarried. The indicative sentences for certain individual counts were lenient given the objective seriousness of the offending, and the sentencing judge did not compensate for that leniency through sufficient accumulation. As a result, the aggregate sentence failed to reflect the respondent's total criminality. The sentencing judge's findings also paid insufficient regard to specific deterrence and community protection, which extensive Court of Criminal Appeal authority identifies as particularly significant in domestic violence cases, especially where no remorse or meaningful insight has been found.

Chen J also found a degree of double counting in the sentencing judge's treatment of rehabilitation: that factor appeared to have been used both to reduce the aggregate sentence and as the basis for a special circumstances finding. The resulting non-parole period ratio of 50% was characterised as exceedingly generous given the sentencing judge's own guarded findings about rehabilitation and the absence of remorse.

Hamill J agreed with the orders but was not prepared to find that the sentencing judge had committed specific legal error. His Honour observed that the sentencing judge had delivered a comprehensive and legally correct judgment under considerable time pressure. In Hamill J's view, the appeal succeeded because the combination of some lenient indicative sentences and limited accumulation produced an aggregate sentence that failed to reflect the seriousness of the offending, the need for deterrence, and adequate vindication of the victim's dignity.

Orders Made

  • Appeal allowed
  • Sentence imposed on 1 December 2023 quashed and replaced with an aggregate term of imprisonment of 6 years, with a non-parole period of 4 years, commencing 29 November 2023
  • Respondent eligible for release on parole on 28 November 2027; sentence to expire 28 November 2029
  • Order made pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) that the offences be recorded on the respondent's criminal record as domestic violence offences

Key Takeaways

  • A manifestly inadequate sentence does not require identification of a specific legal error in the sentencing judge's reasoning; an inference of undisclosed error drawn from the result itself is sufficient, as confirmed in Dinsdale v The Queen (2000) 202 CLR 321.
  • Specific deterrence and community protection carry particular weight in sentencing for domestic violence offences, and where there are no favourable findings about remorse or genuine insight into the offending, those considerations should be given significant force.
  • Where indicative sentences for individual counts are lenient, a greater degree of accumulation is required to ensure the aggregate sentence reflects the offender's total criminality; failure to achieve that accumulation can itself support an inference of error in applying the totality principle.
  • Using rehabilitation both as a mitigating factor in fixing the aggregate sentence and as the sole or principal basis for a special circumstances finding may constitute impermissible double counting, particularly where the sentencing judge's own findings about rehabilitation are guarded or qualified.
  • Under s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), a court sentencing for domestic violence offences should record those offences on the offender's criminal record as domestic violence offences; the Court of Criminal Appeal noted this step had been overlooked at first instance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 37(1A), 59(1), 114(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 11, 12(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Procedure Act 1986 (NSW)

Cases
- Dinsdale v The Queen (2000) 202 CLR 321
- Markarian v The Queen (2005) 228 CLR 357
- Bugmy v The Queen (1990) 169 CLR 525
- Bugmy v The Queen (2013) 249 CLR 571
- BP v R [2010] NSWCCA 159
- Betts v The Queen (2016) 258 CLR 420
- DL v The Queen (2018) 265 CLR 215
- House v The King (1936) 55 CLR 499
- Director of Public Prosecutions (NSW) v Darcy-Shillingsworth [2017] NSWCCA 224
- Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
- AM v R [2024] NSWCCA 26
- Carr v R [2024] NSWCCA 103