Elwood v The King - [2023] NSWCCA 200

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Elwood v R [2023] NSWCCA 200
Hearing dates: 14 August 2023
Date of orders: 14 August 2023
Decision date: 17 August 2023
Before: Adamson JA, Wright J Fagan J
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – alleged manifest excess – offending constituted by single 3½ hour domestic violence episode – multiple offences against estranged partner and sister – multiple property offences and offences against police – prior record of domestic violence – disadvantaged Indigenous applicant – aggregate sentence not manifestly excessive – leave to appeal granted – appeal dismissed

Legislation Cited:
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes Act 1900 (NSW)

Category: Principal judgment
Parties: Connor Elwood (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Fraser (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Aboriginal Legal Service (NSW/ACT) (Applicant)
Office of Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/00368701
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

15 September 2022

Before:

Judge J Smith SC

File Number(s):

2021/00368701

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 15 September 2022 the applicant was sentenced in the District Court for domestic and personal violence offences, property offences and offences against police, committed by him in a 3½ hour episode at a residential property in Bourke on 29 December 2021. The applicant was sentenced after pleading guilty to all charges in the Local Court. He sought leave to appeal on the sole ground that the aggregate sentence imposed was manifestly excessive.

The principal victim was the applicant’s estranged partner, who was staying temporarily at the house with their children and with the applicant’s sister and her children. Offences committed against her were reckless wounding, by slashing her arm and leg with the jagged edge of a broken bottle, assault occasioning actual bodily harm and contravention of an apprehended domestic violence order. Offences of intimidation and reckless damage to property were committed against the applicant’s sister. The damage to property included smashing a window and exterior cladding of the home and extensive damage to a motor vehicle parked on the property, belonging to another person.

Upon the arrival of two police officers in response to an emergency call from the women, the applicant threw projectiles at the police, threatened them with a steel pole and damaged their vehicle.

The applicant was aged 23 years and his partner was aged 24. They had been in a volatile relationship over approximately the preceding six years. The applicant had two prior convictions for domestic violence against the partner. The aggregate sentence imposed was 5 years’ imprisonment with a non-parole period of 2 years and six months.

The Court held (Adamson JA, Wright and Fagan JJ), granting leave to appeal but dismissing the appeal: The sentence was not manifestly excessive.

JUDGMENT

THE COURT: The applicant seeks leave to appeal against…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Elwood v The King

Details

AGLC: Elwood v The King [2023] NSWCCA 200
Case: [2023] NSWCCA 200
Decision Date: 17 August 2023

CaseChat Overview and Summary

The case of Elwood v The King involves an appeal against the sentence imposed on the defendant, Elwood, following a series of offences. Elwood had engaged in a prolonged domestic violence episode lasting 3½ hours, during which he committed multiple offences against his estranged partner and sister, as well as several property offences and offences against police. The appellant, who has a prior history of domestic violence and identifies as Indigenous, sought to appeal the aggregate sentence on the basis that it was manifestly excessive. The court was tasked with determining whether the sentence imposed was indeed beyond the range of reasonable outcomes given the nature and circumstances of the offending.

The central legal issue before the court was whether the aggregate sentence imposed on Elwood was manifestly excessive. This required consideration of the totality of the offending, including the duration and severity of the domestic violence, the harm caused to the victims, the appellant's prior criminal history, and his personal circumstances, particularly his Indigenous background. The court had to weigh these factors against the principles of sentencing and the appropriate range of penalties for such offences.

The court found that, while the offending was severe and multifaceted, the sentence imposed was not beyond the range of reasonable outcomes. The court acknowledged the appellant's prior history of domestic violence and his Indigenous background but concluded that these factors did not necessitate a significantly reduced sentence. The court considered the harm caused to the victims, the need for deterrence, and the principle of proportionality in arriving at its decision. Consequently, the appeal was dismissed, and leave to appeal was granted to allow for the appellant's concerns to be addressed in the higher court.

Orders