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Court of Criminal Appeal 28 October 2024

R v Rose

[2024] NSWCCA 193

Assault & violenceTheft & propertyDomestic & family violence
SENTENCING MANIFEST INADEQUACY

Citation: R v Rose [2024] NSWCCA 193
Court: Court of Criminal Appeal, New South Wales
Date: 28 October 2024
Judges: Harrison CJ at CL; Campbell J (principal judgment); Sweeney J

Background

The respondent pleaded guilty to breaking and entering his sometime partner's home and committing a serious indictable offence therein, specifically detaining her without consent and with intent to obtain a psychological advantage, while armed with a knife. The offence was contrary to s 112(2) of the Crimes Act 1900 (NSW) and carried a maximum penalty of 20 years' imprisonment with a standard non-parole period of five years.

The District Court sentenced the respondent to a term of imprisonment of one year, three months and one day, to be served by way of an Intensive Correction Order (ICO) with an additional condition of 150 hours of community service work. Before being released on bail, the respondent had spent approximately nine months in custody on remand and was then subject to onerous home detention bail conditions that the sentencing judge treated as quasi-custody.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), arguing that the sentencing judge had erred in assessing the objective seriousness of the offence and that the resulting sentence was manifestly inadequate.

  • Whether the sentencing judge failed to find the offence was aggravated by reason of actual or threatened use of violence under s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge failed to have regard to the actual and threatened use of violence, including the use of a knife, when assessing objective seriousness
  • Whether, if error was established, the Court's residual discretion not to intervene had been negated such that resentencing was required

Decision

On the first two grounds, Campbell J (with whom Harrison CJ at CL and Sweeney J agreed) found that both issues were essentially particulars of the broader complaint about the sentencing judge's assessment of objective seriousness. Critically, the Crown conceded that it had been open to the sentencing judge to assess the offending as falling within the mid-range of objective seriousness. Given the limiting purpose of Crown appeals, no real point was served by examining this ground further. In any event, the sentencing judge's reasons, read fairly and as a whole, showed that her Honour was well aware of the violence involved in the offending.

On the question of manifest inadequacy, the Court held that the sentence actually imposed was not plainly unjust or wholly unreasonable. The sentencing judge had followed the correct approach to sentencing before turning to the question of an ICO, applying the steps identified in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3. An ICO is a custodial sentence, and its imposition could not be characterised as manifestly inadequate in the circumstances.

The Court acknowledged that the sentence was lenient but was not satisfied it crossed the threshold of manifest inadequacy. Harrison CJ at CL emphasised that the leniency conventionally associated with an ICO was significantly moderated in this case by the respondent's nine months in pre-sentence custody and subsequent onerous home detention bail conditions. The respondent's Autism Spectrum Disorder, which had not previously resulted in any period of detention, appears to have contributed to the difficulty of the custodial experience and was a relevant consideration in the overall sentencing exercise.

Campbell J also noted, though it formed no part of the Crown's grounds of appeal, that the domestic violence provisions in the Crimes (Sentencing Procedure) Act 1999 (NSW) (ss 4A, 4B and 71) do not create a legal bar to an ICO for a domestic violence offence; the availability of an ICO for such offending is relevant to whether its imposition represents a marker of manifest inadequacy.

Orders Made

  • The Crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW) was dismissed.

Key Takeaways

  • An ICO is a custodial sentence, and its imposition is not automatically a marker of manifest inadequacy, even for serious offences carrying a substantial maximum penalty.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that pre-sentence custody and onerous bail conditions amounting to quasi-custody can materially moderate the degree of leniency otherwise associated with an ICO.
  • Where the Crown concedes that the sentencing judge's assessment of objective seriousness fell within the available range, a Crown appeal challenging that assessment will face a significantly narrowed path.
  • A sentencing judge's reasons need not be read in isolation: the Court of Criminal Appeal will read them fairly and as a whole when determining whether relevant factors were properly considered.
  • Under ss 4A, 4B and 71 of the Crimes (Sentencing Procedure) Act 1999 (NSW), no legislative bar exists to an ICO for a domestic violence offence, provided the relevant statutory conditions are satisfied; the appropriateness of such an order remains a discretionary question determined on all the circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 105A, 112
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 4A, 4B, 7, 21A, 71
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 5, 11
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; 97 ALJR 107
- Mandranis v R [2021] NSWCCA 97
- Zheng v R [2023] NSWCCA 64
- R v Eldelbi (2021) 105 NSWLR 133; [2021] NSWCCA 122
- R v Quinlin [2021] NSWCCA 284; 293 A Crim R 253
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435
- Cargnello v Director of Public Prosecutions (Cth) (2012) 266 FLR 464; [2012] NSWCCA 162