DH v The Queen

[2017] NSWCCA 64

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	DH v R [2017] NSWCCA 64
Hearing dates:	14 March 2017
Date of orders:	07 April 2017
Decision date:	07 April 2017
Before:	Hoeben CJ at CL at [1]; Garling J at [2]; Beech-Jones J at [3]
Decision:	(1)   Leave to appeal against sentence granted; (2)   Appeal dismissed.
Catchwords:	CRIME – SENTENCING – domestic violence – aggregate sentence of 5 years imprisonment with non‑parole period of 3 years imposed – break and enter with intention to commit serious offence – contribution of indicative sentence to aggregate sentence – whether sentencing judge erred in assessing objective seriousness of offence – whether sentence manifestly excessive – leave to appeal granted – appeal dismissed
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Procedure Act 1986
Cases Cited:	Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 John Walsh Ngati v R [2008] NSWCCA 3 Martin v R [2011] NSWCCA 188 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 PD v R [2012] NSWCCA 242 R v Fahda [2013] NSWCCA 86 R v John Dechellis [2002] NSWCCA 88 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Shaw, Jason Robert v R [2008] NSWCCA 58 SHR v R [2014] NSWCCA 94 Wong v The Queen [2001] HCA 64; 207 CLR 584
Category:	Principal judgment
Parties:	DH (Applicant) Regina (Crown)
Representation:	Counsel: R Rodger (Applicant) N Adams (Crown)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2015/239551
Decision under appeal	Court or tribunal: 2015/239551 Jurisdiction: Criminal Date of Decision: 21 April 2016 Before: Robison DCJ File Number(s): 2015/239551

Judgment

1. HOEBEN CJ at CL: I agree with Beech-Jones J.

2. GARLING J: I agree with the orders proposed by Beech-Jones J for the reasons which he gives.

3. BEECH-JONES J: This is an application for leave to appeal from an aggregate sentence imposed by his Honour Judge Robison DCJ for a number of domestic violence offences. The Applicant, DH, is referred to in this judgment by his initials because to identify him would facilitate the identification of a child who has been the victim of a crime.

4. On 9 December 2015, the Applicant entered pleas of guilty to three charges. The first charge alleged that on 11 August 2015 he assaulted his former partner, KE, contrary to s 61 of the Crimes Act 1900. The second charge alleged that on 16 August 2015 he assaulted his mother‑in‑law, BW, contrary to the same provision.

5. The third charge alleged that on 16 August 2015 he broke and entered KE’s premises with the intention to commit a serious indictable offence namely intimidate BW in circumstances of aggravation contrary to s 112(2) of the Crimes Act. The circumstance of aggravation was that he knew there were persons present in KE’s house when he entered (Crimes Act, s 105A). These persons included KE’s three children GE, ZE and FH who were aged 11, 9 and 4 respectively. The offence under s 112(2) carried a maximum penalty of twenty years imprisonment and a standard non‑parole period of five years.

6. The Applicant has also pleaded guilty to a charge under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 of contravening an apprehended violence order (“AVO”) on 11 August 2015. This was a summary charge but it was dealt with by the District Court pursuant to the procedure set out in Division 7 of Part 3 of Chapter 3 of the Criminal Procedure Act 1986.

7. On 21 April 2016 his Honour imposed an aggregate sentence of 5 years imprisonment commencing on 16 August 2015 and expiring on 15 August 2020 with a non‑parole period of 3 years. Pursuant to s 53A(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Act”) his Honour specified the sentences that would have been imposed for each offence had individual sentences been imposed rather than an aggregate sentence. In the case of the aggravated break and enter offence the indicative sentence was imprisonment for 4 years and 6 months. In the case of the assault upon KE the indicative sentence was 4 months imprisonment. In the case of the assault upon BW the indicative sentence was 6 months imprisonment. The indicative sentence for the contravention of the AVO was 5 months imprisonment.

The Offences

8. There was placed before his Honour an agreed statement of facts. A summary of those facts follows.

9. The Applicant and KE were in a relationship from 2006 to 2012. FH is their daughter. GE and ZE are KE’s children from a previous relationship. At the time of the commission of these offences, the Applicant was the subject of an AVO which prevented him from, amongst other things, assaulting, harassing, intimidating or stalking KE.

10. At about 11.00am on 11 August 2015, KE was driving on the Pacific Highway. FH was with her. KE noticed the Applicant on the side of the road trying to “flag her down” but she ignored him. A short time later the Applicant drove up behind her vehicle. She attempted to accelerate but became concerned about her and FH’s safety. She stopped. The agreed facts continue:

“The [Applicant] approached [KE]’s vehicle. She asked him ‘what do you want? What are you doing?’ The [Applicant] replied, ‘I don’t know. I just love you.’ She got out of her vehicle and said, ‘Do you love your daughter?’ The [Applicant] said, ‘I love you.’ [KE] asked, ‘Do you love your daughter?’ The [Applicant] replied, ‘I just love you.’ She said ‘You’re crazy. You have to stop following me.’

The [Applicant] became angry and began screaming at [KE] who ignored him and checked on their daughter. She saw that [FH] had her fingers in her ears.

[KE] got back in her vehicle and attempted to close the door. The [Applicant] prevented her from doing so by holding the top of the door. The [Applicant] then forcefully pushed the door towards [KE] before pulling it back towards himself. The door hit [KE] on the tricep of her right arm, causing immediate pain. She told him to let go and that she was leaving. The [Applicant] calmed down and began to tell her that he loved her again. However, he still refused to allow her to close the door. [KE] began to drive away with the [Applicant] holding the door. She sped up until he let go.”

11. KE then drove to a police station. The Applicant followed her and begged her not to report him to the police but she did so anyway.

12. The Applicant’s conduct in hitting KE with the door constituted the assault charge against her. His conduct in harassing her constituted the charge of breaching the AVO.

13. On the morning of 16 August 2015, KE received a number of messages from the Applicant accusing her of “being with other men”. She sent a message to the Applicant “telling him to leave her alone”. At around 11.30am she met a friend at a hotel. Her mother, BW, was minding her children. At around 2.30pm the Applicant attended at the hotel. He approached KE and said to her “You here looking for another bloke?”. KE and her friend then left the hotel. The Applicant followed them and yelled out “I’m going to get [FH] from your home”.

14. KE telephoned BW to warn her. BW brought the children inside and locked the doors. The agreed facts state:

“[BW] brought the three children inside and locked the doors. A short time later she heard a banging sound coming from the rear glass sliding door, which leads into the dining room. [BW] went to see what the noise was and saw the [Applicant] forcefully kicking the window glass in the rear door. He kicked it approximately six times, but it did not break. [BW] yelled at the [Applicant] to leave and said that [FH] wasn’t there. [ZE] was present and he was crying and screaming. [BW] told [GE] and [FH] to go and hide in a bedroom.

The [Applicant] then kicked the fixed glass door twice before it completely shattered.

The [Applicant] then moved around to the kitchen window and punched it with his fist, causing it to shatter. He climbed through the broken window and [BW] grabbed a saucepan and hit him on the head. The [Applicant] fell onto some dishes that were drying next to the sink. He got up, pushed [BW] on the front of her body. She fell backwards onto her back, causing pain.”

15. The agreed facts state that BW then telephoned the triple-0 operator. The recording of that call was tendered before the sentencing judge. In the recording BW and ZE can be heard screaming before the Applicant demands to see FH. At one point the Applicant tells ZE to “fuck off”. As already noted, ZE was nine years old. BW pleaded with the operator for help while ZE began to cry and tell the Applicant to leave. At one point the Applicant threatened them, yelling “if you don’t tell me where the fuck [FH] is ...”

16. The Applicant left via a window that he had broken. As he left he smashed a window in ZE’s bedroom. He was arrested at his home shortly afterwards. He has been incarcerated since.

The Sentencing Judgment

17. In the sentencing judgment, his Honour noted the maximum penalty and standard non‑parole period for the offence under s 112(2) of the Crimes Act set out above. His Honour also noted that it was a “significant aggravating feature” of the offences that they were committed while the Applicant was subject to two bonds under s 9 of the Sentencing Act imposed on 15 June 2015 for contravention of an AVO and common assault. His Honour also noted that the Applicant was entitled to the “full utilitarian value of his pleas of guilty” being a twenty five per cent discount (R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383).

18. His Honour then summarised the facts of the offences. In doing so his Honour made reference to the recording of the triple-0 call noted above. This material had been tendered by the Crown and played to his Honour. His Honour stated that “[o]ne can only take the view after hearing [that recording] of how serious this intrusion and the actions undertaken by the [Applicant] were” and the “intrusion and what [the Applicant] did in my view was approaching a high order of criminal behaviour”. His Honour concluded that the Applicant’s conduct was “extremely serious, intimidatory and frightening” and constituted “behaviour of considerable objective seriousness”. His Honour found that the offence was to an extent premeditated in that the Applicant “had made up his mind to go into that house and nothing was going to stop him”.

19. Later in the judgment, his Honour referred to the seriousness with which Courts approach incidents of domestic violence in breach of apprehended violence orders. His Honour noted that it was an aggravating feature of the Applicant’s conduct that children were present. His Honour stated that the Applicant’s criminality was “of a high order” and the Applicant “had absolutely no regard to his obligations to comply with the orders which were in place”. His Honour concluded that the “overall criminality … falls in the range generally of the mid‑point of objective seriousness or perhaps slightly below or above...”.

20. His Honour noted that the Applicant was 41 years old at the time of sentencing. According to his Honour, other than the offences that resulted in the bonds being imposed in 2015, the Applicant’s criminal record was “relatively limited”. Placed before his Honour was a psychologist’s report which set out the Applicant’s background and medical history. According to his Honour the only matter of significance was a description of the Applicant’s addiction to alcohol. His Honour accepted that there was a connection between the Applicant’s alcoholism and the commission of the subject offences.

21. Although his Honour noted that the psychologist assessed the Applicant as having a “moderate risk of engaging in intimate partner violence in the future”, his Honour nevertheless concluded that there were “good prospects of rehabilitation”. His Honour accepted that that matter, when considered with the circumstance that the Applicant was about to undertake his first time in custody, justified a finding of special circumstances under s 44(2) of the Sentencing Act.

Ground 1: Error in the Classification of the Objective Seriousness of the Offence

22. Ground 1 of the application contends that his Honour erred in classifying the objective seriousness of the offence. The written submissions in support of this ground note his Honour’s statement, outlined above, that the “overall criminality is in this case of a high order”. The submissions contend that his Honour did not recognise that the aggravating features of the offence were not as objectively serious as examples of offences under s 112(2) of the Crimes Act involving deprivation of liberty or the use of a weapon and failed to adequately deal with the range of offending contemplated within analogous cases.

23. The written submissions in support of this ground correctly concede that a challenge to a characterisation of the objective seriousness of an offence “must be founded upon one of the errors specified in House v The King [1936] HCA 40; 55 CLR 499” (R v Fahda [2013] NSWCCA 86 at [4] per Simpson J with whom Fullerton and Davies JJ agreed; Mulato v R [2006] NSWCCA 282 at [37] and [46] per Spigelman CJ). Otherwise the unstated premise of this ground is that the demonstration of error on the part of the sentencing judge in characterising the objective seriousness of the offence under s 112(2) would establish error in relation to the aggregate sentence. While that does not necessarily follow, given the proportion that the indicative sentence for this offence bears to the aggregate sentence in this case, error in the characterising of the seriousness of the former would establish error in the determination of the latter (SHR v R [2014] NSWCCA 94 at [40] to [42] per Fullerton J; PD v R [2012] NSWCCA 242 at [44]).

24. Nevertheless I would reject this ground for three related reasons.

25. First, the submissions in support of this ground overstate the relevant finding of the sentencing judge. I have summarised the relevant findings of his Honour above. The Applicant’s submissions conflated the reference by the sentencing judge to the criminality being of a “high order” to a finding that the criminality was high in the sense of being well above the mid-range of objective seriousness. However the relevant finding was that “overall criminality … falls in the range generally of the midpoint of objective seriousness or perhaps slightly below or above...” which is qualitatively different. Similarly the written submissions in support of this ground refer to a passage from the judgment of Fullerton J in Shaw, Jason Robert v R [2008] NSWCCA 58 at [36] (“Shaw”) in which her Honour stated that if the offence under s 112(2), which in that case involved domestic violence, had involved a premeditated forced entry and the use of a weapon then the offence could have been categorised as “objectively high”. That observation does not advance the Applicant’s case as the sentencing judge did not find that the Applicant’s criminality was “objectively high” even though this case involved a premeditated forced entry (see [18]).

26. Second, the submissions in support of this ground misstate the effect of the decisions concerning the objective seriousness of offences under s 112(2). As noted, the written submissions refer to Shaw and also Martin v R [2011] NSWCCA 188 (“Martin”). Both Martin and Shaw were sentence appeals in respect of offences under s 112(2) involving domestic violence. The relevant aspect of Shaw has just been addressed. In Martin the sentencing judge noted that the “offence was committed in the victim's home where children resided and in the context of a fractured domestic relationship” (at [13]) but “did not attend at his former partner's home with the intention of breaking in and assaulting her but because he wanted to see his children” (at [14]). These matters were found to justify a finding that the offending was “at or just below mid‑range” (at [17]). However in the present case the Applicant’s conduct was premeditated (see [18] above).

27. Otherwise both Martin and Shaw were decided prior to Muldrock v The Queen [2011] HCA 39; 244 CLR 120 (“Muldrock”) and during a period when the characterisation of the objective seriousness of offences by reference to the “middle of the range of objective seriousness” (Sentencing Act, s 54A(2) was considered to be mandated by the decision in R v Way [2004] NSWCCA 131; 60 NSWLR 168 (cf Muldrock at [22] to [23]).

28. Third, in any event, his Honour’s characterisation of the seriousness of the offence under s 112(2) was more than justified in the circumstances. Neither Martin nor Shaw, or any other decision of this Court, specifies that the presence or absence of some factor is determinative of the objective seriousness of an offence under s 112(2). A consideration of the factors referred to in Martin and Shaw, such as premeditation and the use of a weapon, are clearly relevant. However, consideration also needs to be given to the seriousness of the relevant factor such as the degree of force and damage involved in break and entering. As noted in this case, the Applicant’s conduct was premeditated, it involved a significant level of aggression and violence, it took place in the presence of children (Sentencing Act, s 21A(2)(ea)), it was committed in the home of the victim (s 21A(2)(eb)) and it was committed while the Applicant was on conditional liberty namely the section 9 bonds (s 21A(2)(j)).

29. I would reject ground 1.

Ground 2: Manifest Excess

30. Ground 2 of the appeal contends that the “sentences are excessive and a lesser sentence is warranted.” Although the ground refers to the “sentences”, the submissions in support of this ground were directed only to the indicative sentence for the offence under s 112(2) of the Crimes Act.

31. The relevant principle governing a complaint that a sentence is manifestly excessive was stated in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [59] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (“Hili”):

“As was said in Dinsdale v The Queen [[2000] HCA 54 202 CLR 321 at [6]], ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’. And, as the plurality pointed out … in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58] (‘Wong’), appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say … in Wong [at [58]], ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. But, by its very nature, that is a conclusion that does not admit of lengthy exposition.”

32. The written submissions in support of this ground referred to statistics for offences under s 112(2) and made reference to a number of similar cases. The limitations on the use of statistics to demonstrate that a sentence is manifestly excessive were identified in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [59], namely that “bare statistics” state “very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were” (see Hili at [59]).

33. The limitations on the use of statistics discussed in Hili is borne out by the statistics relied on in this case. According to the Applicant’s analysis, the statistics reveal that “for an individual Applicant, with multiple offences, priors of a different type and a plea of guilty, a non‑parole period of 36 months is in the top 15% of Applicants” and the “head sentence of 54 months is within the top range of 23%”. Assuming this analysis is accurate, it does not assist the Applicant. It is doubtful that the Applicant is a person “with prior offences of a different type” given that he was subject to two section 9 bonds for domestic violence at the time the subject offences were committed. In any event the statistics may only suggest that there are relatively few offences under s 112(2) that involve criminality towards the upper end of the range of objective seriousness. This would explain the relatively few sentences that involve the imposition of the standard non‑parole period.

32. The Applicant was on surer ground in pointing to a range of decisions concerning offences under s 112(2) (Hili at [53]). Nevertheless the schedule of decisions to which the Court was taken did not demonstrate a basis for concluding there was a “misapplication of principle, even though where and how is not apparent from the statement of reasons”. In oral argument Counsel for the Applicant referred to the judgments of this Court in R v John Dechellis [2002] NSWCCA 88 (“Dechellis”) and John Walsh Ngati v R [2008] NSWCCA 3 (“Ngati”). Both were decided prior to Muldrock.

33. In Dechellis, the applicant pleaded guilty to breaking and entering a dwelling place and while present committing a serious indictable offence, namely malicious damage in circumstances of aggravation in that he knew that there were persons present within the dwelling. He was sentenced to 3 years imprisonment with a non‑parole period of 2 years. The applicant forced his way into his former partner’s home and terrorised her, her new partner and her family (at [3] per Buddin J with whom Greg James J agreed). The sentencing judge found that the offence was a “spontaneous reaction to [a] communication” (at [5]). The applicant had a “large number of convictions” at the time he appeared for sentence (at [8]). The Court found the sentence was “within the applicable range” (at [7]).

34. In Ngati the applicant was convicted, following a trial, of break and enter with intention to commit assault occasioning actual bodily harm in circumstances of aggravation, namely, that he was in company. The applicant and other members of his family entered the dwelling to exact revenge on the victim who had an ongoing quarrel with the family of a friend of the applicant’s son. The applicant smashed a window and then enlarged the break by kicking out the glass. He then entered the house. Other members of the applicant’s family followed and they all set upon the victim who sustained bodily injury. The victim’s teenage children lived with her (at [4]). The applicant was sentenced to imprisonment for 3 years and 9 months with a non‑parole period of 2 years. He had no “criminal record of any significance” (at [35]).

35. The sentencing judge in Ngati found that the offence was “spontaneous” (at [37]) but was aggravated by the offender’s knowledge that children were present in the house (at [37]). The sentencing judge concluded that “the offence fell below the middle of the range of objective seriousness” (at [38]). This Court concluded (at [42]) that there was “no substance in any of the submissions made on appeal” against sentence (which appears to have included a complaint that the sentence was manifestly excessive). In Ngati the applicant did not have the benefit of a plea, whereas the Applicant in this case did. However, unlike the applicant in Ngati, the Applicant in this case did have a criminal record of significance. Additionally, his offences were committed in contravention of a bond, were premeditated and were directed at his own family.

36. Neither Dechellis nor Ngati provides any assistance to the Applicant in this case. The Applicant’s offending was more serious than each of those offenders although the offender in Ngati did not have the benefit of a plea of guilty. In each of Dechellis and Ngati this Court found that the sentence imposed was within the “range” but did not suggest that a higher sentence such as the one imposed on the Applicant was outside any applicable range. In this case I accept that the sentence imposed was stern but it was not “so wrong that there must have been some misapplication of principle” (Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [27]).

37. One other submission made in support of this ground should be addressed. As part of the contention that the sentence was excessive it was submitted that the sentencing judge gave “undue weight” to the triple-0 recording noted above. The submissions assert that it was given a “heightened level of importance” by the sentencing judge compared to the agreed facts. The written submissions refer to various findings made by the sentencing judge concerning what was revealed by the tape of that recording (see [18]).

38. I do not accept this submission. His Honour did not use that recording to contradict or depart from the agreed facts. Instead his Honour used the recording of the triple-0 call to ascertain the context and atmosphere inside KE’s home as the Applicant rampaged through it. His Honour was entitled to use the recording in that way.

39. I would reject ground 2.

Disposition

42. The orders I propose are:

(1)   Leave to appeal against sentence granted;

(2)   Appeal dismissed.

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Decision last updated: 07 April 2017