McFarland v The Queen

Case [2021] NSWCCA 79


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: McFarland v R [2021] NSWCCA 79
Hearing dates: 29 March 2021
Decision date: 23 April 2021
Before: Hoeben CJ at CL at [1];
Hamill J at [69];
Wilson J at [70]
Decision:

(1)   Leave to appeal against sentence is granted.

(2)   The appeal is dismissed.

Catchwords:

CRIMINAL LAW – sentence appeal – offences comprised aggravated take and detain a person with intent to obtain advantage, the circumstances of aggravation being the infliction of actual bodily harm and the advantage being psychological gratification – further offences of assault occasioning actual bodily harm and of driving with a high range content of alcohol in his blood were brought – with the exception of the driving offence, all offences were domestic violence related and committed against the same victim – aggregate sentence of 7 years imprisonment with a non-parole period of 4 years and 4 months – whether sentence was manifestly excessive – injuries described by sentencing judge as “horrific” and representing the most serious form of actual bodily harm – use by court of comparative cases – principles relevant to appellate review of aggregate sentencing – principles to be applied in domestic violence cases – manifest excess not made out – appeal against sentence dismissed.

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Road Transport Act 2013 (NSW)

Cases Cited:

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46

Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2

Cherry v R [2017] NSWCCA 150

Diaz v R [2018] NSWCCA 33

Droudis v R [2020] NSWCCA 322

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Jibran v R [2020] NSWCCA 86

JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297

Kerr v R [2016] NSWCCA 218

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Merkel v R [2019] NSWCCA 212

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

R v JD [2018] NSWCCA 233

TB v R [2020] NSWCCA 108

Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category:Principal judgment
Parties: Ashley McFarland – Applicant
Regina – Respondent Crown
Representation:

Counsel:
S Kluss – Applicant
E Wilkins SC – Respondent Crown

Solicitors:
Ross Hill and Associate Solicitors – Applicant
Solicitor for Public Prosecutions – Respondent Crown
File Number(s): 2018/337604
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
19 May 2020
Before:
Harris DCJ
File Number(s):
2018/337604

JUDGMENT

  1. HOEBEN CJ at CL:

Offence and sentence

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him by her Honour Judge Harris (the sentencing judge) on 19 May 2020 in the District Court of New South Wales at Penrith.

  1. The applicant…

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AGLC
McFarland v The Queen [2021] NSWCCA 79
Case
[2021] NSWCCA 79
Decision Date

CaseChat Overview and Summary

In the case of McFarland v The Queen, the respondent, who was the appellant in the court below, appealed against his sentence on the grounds that it was manifestly excessive. The appellant was convicted of various offences including aggravated take and detain a person with intent to obtain advantage, assault occasioning actual bodily harm, and driving with a high range content of alcohol in his blood. The aggravated take and detain offence was committed against the same victim as the assault occasioning actual bodily harm offence. The court was required to determine whether the aggregate sentence of 7 years imprisonment, with a non-parole period of 4 years and 4 months, was manifestly excessive.

The court considered the principles relevant to appellate review of aggregate sentencing and emphasised the importance of ensuring that the aggregate sentence reflects the totality of the offending and the culpability of the offender. The court also noted the principles to be applied in domestic violence cases, which include considering the impact of the offending on the victim and the need to deter and protect the community. The court reviewed the comparative cases and concluded that the sentence was not manifestly excessive, taking into account the severity of the injuries inflicted on the victim and the appellant's culpability.

The court found that the sentencing judge had appropriately considered the principles relevant to sentencing in domestic violence cases and had not erred in principle in arriving at the sentence. The court also noted that the appellant had a history of domestic violence offending and that the sentence reflected the seriousness of the offending. The appeal against sentence was dismissed.

No orders were made as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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