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Court of Criminal Appeal 16 October 2024

Rowland v R

[2024] NSWCCA 187

Assault & violenceTheft & propertyDomestic & family violencePublic order & justice offences
CRIME APPEALS APPEALS AGAINST SENTENCE MANIFEST EXCESS LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Rowland v R [2024] NSWCCA 187
Court: Court of Criminal Appeal, New South Wales
Date: 16 October 2024
Judges: Davies J, Garling J, Chen J (Chen J delivering the principal judgment, Davies and Garling JJ agreeing)

Background

The applicant pleaded guilty in the Local Court to six offences arising from two separate incidents on the same day, both involving victims known to him. The offending included assault occasioning actual bodily harm in company, entering a dwelling armed with an offensive weapon with intent to intimidate, using an offensive weapon with intent to commit an indictable offence, two counts of stalking and intimidation, and demanding property in company with menaces. Several offences on the second occasion were committed jointly with a co-offender on the basis of a joint criminal enterprise.

On 25 March 2024, Abadee DCJ sentenced the applicant in the District Court to an aggregate term of 5 years and 6 months imprisonment, with a non-parole period of 3 years commencing 26 March 2023. The applicant sought leave to appeal on the single ground that the aggregate sentence was manifestly excessive, having particular regard to his subjective circumstances.

In support of the manifest excess ground, the applicant advanced four specific matters said to support an inference of definite but undisclosed error by the sentencing judge: failure to refer to the maximum penalty for one offence, conflation of childhood disadvantage with mental health conditions, misarticulation of totality principles, and reliance on comparative cases said to demonstrate the sentence was excessive.

  • Whether the sentencing judge's failure to refer to the maximum penalty for the aggravated enter-dwelling offence (sequence 3) gave rise to an inference of undisclosed error
  • Whether the sentencing judge impermissibly conflated the applicant's childhood disadvantage with his mental health conditions, thereby undervaluing his reduced moral culpability
  • Whether the principle of totality required greater concurrency in the aggregate sentence, given the offending occurred on a single day, was relatively short in duration, and involved known victims
  • Whether comparative sentencing decisions supported an inference that the aggregate sentence was manifestly excessive

Decision

Maximum penalty omission. Chen J found the sentencing judge's failure to mention the maximum penalty for sequence 3 was an inconsequential slip in an otherwise thorough, comprehensive judgment delivered essentially ex tempore. No basis existed to infer the applicant was sentenced without regard to that maximum, and the omission did not support an inference of undisclosed error.

Childhood disadvantage and mental health. The sentencing judge made favourable findings on both issues: the Bugmy principles (concerning the enduring effect of childhood deprivation on moral culpability) were engaged, and the applicant's mental health condition was found to be a contributing factor to the offending, even if a small one. To the extent the sentencing judge addressed these matters together, this simply reflected that the mental health conditions had their genesis in the deprived upbringing, which was entirely consistent with the psychologist's report tendered by the applicant. The court found nothing in the approach or outcome that permitted an inference of undisclosed error in the assessment of moral culpability.

Totality. The court rejected the submission that greater concurrency was required because the offending occurred on the same day, was short to moderate in duration, and involved known victims. It was well open to the sentencing judge to conclude that a degree of accumulation was warranted, because no single sentence could comprehend the criminality of the others.

Comparative cases. Davies J noted, with Garling J agreeing, that it is unsatisfactory for comparable cases to be raised for the first time on appeal when they were never cited to the sentencing judge. The Court of Criminal Appeal is a court of error, not a forum for revising the case as presented below, and District Court judges cannot be expected to search for comparable decisions not put forward by counsel. Chen J further found that, even examining the comparative decisions on their merits, the indicative sentences in those cases did not demonstrate that the indicative or aggregate sentences in the present case were manifestly excessive.

Orders Made

  • Leave granted to the applicant to appeal against the sentence imposed on 25 March 2024
  • Appeal against the sentence dismissed

Key Takeaways

  • An inadvertent failure by a sentencing judge to refer to the maximum penalty for a particular offence does not automatically support an inference of undisclosed sentencing error, provided the remainder of the judgment is thorough and comprehensive.
  • Where a sentencing judge addresses childhood disadvantage and mental health conditions together, this does not necessarily constitute conflation: it may legitimately reflect that the mental health conditions had their origin in the deprived upbringing, consistent with the expert evidence.
  • In dismissing the totality submission, the Court confirmed that a degree of accumulation remains open where discrete episodes of offending involve distinct victims and distinct criminality that no single sentence can adequately capture.
  • Comparative sentencing decisions not placed before the sentencing judge carry limited weight on appeal; the Court of Criminal Appeal is a court of error, and it is not the appropriate forum for reformulating a case that was not fully argued at first instance.
  • The Bugmy principles concerning the mitigating weight of childhood deprivation operate as a distinct consideration from mental health mitigation, but a sentencing judge may acknowledge the connection between the two without committing error.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a), 59(2), 99(2), 111(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- AC v R (2023) 111 NSWLR 514; [2023] NSWCCA 133
- Bugmy v The Queen (2013) 249 CLR 571
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- El Masri v R [2022] NSWCCA 27
- Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
- Elsaj v R [2017] NSWCCA 124
- Greenyer v R [2016] NSWCCA 272
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
- Kresovic v R [2018] NSWCCA 37
- Lowe v The Queen (1984) 154 CLR 606
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Moodie v R [2020] NSWCCA 160; (2020) 284 A Crim R 87
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Paterson v R [2021] NSWCCA 273
- R v Holder [1983] 3 NSWLR 245