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Court of Criminal Appeal 21 March 2025

Sampson v R

[2025] NSWCCA 25

Assault & violenceDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE OVER GROUND OF APPEAL UPHELD APPEALS

Citation: Sampson v R [2025] NSWCCA 25
Court: NSW Court of Criminal Appeal
Date: 21 March 2025
Judges: Davies J (principal judgment); Dhanji J and Huggett J agreeing

Background

The appellant pleaded guilty at a super call-over to one count of intentionally causing grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The offence arose from a domestic violence incident on 21 August 2022, in which the appellant struck the victim, his long-term partner and the mother of his children, in the right eye with a garden stake. At the time, an apprehended domestic violence order (ADVO) with a non-contact provision was in force. The victim has been left with very limited vision in that eye, with no substantial improvement expected.

The appellant was sentenced in the Newcastle District Court in December 2023. Taking into account a Form 1 offence of contravening the ADVO, the sentencing judge imposed a term of five years' imprisonment commencing 9 September 2022, with a non-parole period of three years. The sentencing judge found special circumstances and applied a 10% discount for the guilty plea under the mandatory scheme in Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW), but rounded that discount down to even months.

The appellant sought leave to appeal on three grounds: that the rounding down of the discount was an error; that the sentencing judge failed to properly consider lack of planning as a mitigating factor; and that the sentencing judge failed to properly evaluate the effect of the appellant's mental health conditions (PTSD and alcohol and substance use disorder) on general deterrence.

  • Whether the sentencing judge erred by rounding down the mandatory guilty plea discount under s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW), thereby reducing the discount the appellant was entitled to receive.
  • Whether the sentencing judge erred in assessing objective seriousness by declining to treat the unplanned nature of the offence as a mitigating factor.
  • Whether the sentencing judge erred by failing to address the effect of the appellant's mental health conditions on the weight to be given to general deterrence.

Decision

Ground 1: Rounding down the discount (upheld)

Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is a mandatory scheme. The Court held that the sentencing judge was obliged to apply the full discount stipulated under s 25D, even where the precise calculation produced a result involving part of a month. By rounding the discount to even months, the sentencing judge effectively reduced the discount. Davies J calculated that the correct discount of 10% on a notional starting point of five years and six months should have produced a reduction of 6.6 months, yielding a head sentence of four years, eleven months and twelve days. The failure to apply the full discount constituted error.

The Court rejected the appellant's submission that a simple arithmetical correction would suffice. Citing Lehn v R (2016) 93 NSWLR 205 and Kentwell v The Queen (2014) 252 CLR 601, Davies J held that where a discrete error has affected the exercise of the sentencing discretion, the Court must resentence rather than simply adjust the figures. The error here was not a mere arithmetic or date mistake that could be corrected mechanically.

Ground 2: Objective seriousness and lack of planning (rejected)

The Court rejected the submission that the sentencing judge erred in declining to treat the offence as mitigated by a lack of planning. The onus was on the appellant to establish lack of planning as a mitigating factor. In circumstances typified by irrational jealousy, insecurity, and an attempt to exert control, and given the appellant's history of domestic violence, the absence of premeditation was of little significance. The sentencing judge's approach was not attended by error.

Ground 3: Mental health and general deterrence (upheld)

The Court upheld this ground. A specific submission was made at first instance that the appellant's PTSD and substance use disorder meant he was not a suitable vehicle for general deterrence. The sentencing judge made no reference to general deterrence and gave no indication of having engaged with that submission. Davies J noted that general deterrence is a fundamental sentencing principle, particularly for domestic violence offences, and that a judge is expected to address the weight assigned to it. It was not possible to infer from the remarks on sentence that the issue had been considered. The failure to engage with the submission was an error.

Davies J also confirmed the broader principle that a sentencing judge's obligations are not confined to responding only to matters raised by counsel. Some matters are sufficiently significant that a judge must address them regardless, and failure to do so may indicate they were overlooked.

Re-sentencing

On re-sentencing, the Court adopted a slightly reduced starting point, having regard to evidence of the appellant's progress in custody and a less pessimistic assessment of rehabilitation prospects.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 13 December 2023 quashed.
  • In lieu, taking into account the Form 1 matter, the appellant was sentenced to a non-parole period of 2 years and 8 months commencing 9 September 2022 and expiring 8 May 2025, with a balance of term of 1 year and 10 months expiring 8 February 2027.
  • First eligible for parole on 8 May 2025.

Key Takeaways

  • Under Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the guilty plea discount in s 25D is mandatory. Rounding the discount down to produce even months, where doing so reduces the amount of the discount, constitutes sentencing error.
  • A precise discount calculation producing days and partial months cannot be corrected by a simple arithmetical adjustment on appeal. Where the error has affected the overall sentencing exercise, the Court of Criminal Appeal must resentence in accordance with Kentwell.
  • Lack of planning does not automatically operate as a mitigating factor. Where an offence is driven by jealousy, insecurity, and a pattern of domestic violence, the unplanned character of the act may carry minimal mitigating weight.
  • General deterrence is a fundamental sentencing principle that carries particular significance in domestic violence matters. A sentencing judge is expected to address it explicitly, especially where a specific submission about its application has been made.
  • A judge's sentencing obligations are not defined solely by the submissions put to them. Failure to address a significant sentencing consideration may demonstrate error even where counsel did not press the point at first instance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A, 25A, 25D, 25E, 25F, 44

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- GAS v R; SJK v R (2004) 217 CLR 198; [2004] HCA 22
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
- Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
- Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81
- Baydoun v R [2024] NSWCCA 65
- BAP v R [2024]