McFarland v The Queen

[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.

2. The applicant was sentenced after pleading guilty in the Local Court to one charge of aggravated take and detain a person with intent to obtain advantage (the circumstances of aggravation being that actual bodily harm was occasioned to the victim and the advantage being psychological gratification) contrary to s 86(2)(b) of the Crimes Act 1900 (NSW) (Crimes Act); a second offence of assault occasioning actual bodily harm, contrary to s 59 of the Crimes Act and a third offence, contained on a s 166 certificate of driving with a high range prescribed content of alcohol in his blood contrary to s 110(5)(a) of the Road Transport Act 2013 (NSW). There was a Form 1 attached to the take and detain offence directed to one offence of common assault, contrary to s 61 of the Crimes Act.

3. It was common ground that with the exception of the driving offence, all of the offences were domestic violence related and were committed against the same victim, Ms AH, in a course of conduct on 2 November 2018.

4. The applicant was sentenced to an aggregate term of 7 years imprisonment, commencing on 18 May 2020 with a non-parole period of 4 years and 4 months, pursuant to a finding of special circumstances. The non-parole period will expire on 17 September 2024 and the aggregate head sentence expires on 17 May 2027.

5. The sentencing judge allowed a 25 per cent discount for the applicant’s early plea of guilty.

6. The maximum penalties applicable to each offence and the indicative sentences specified by the sentencing judge are set out in the table below.

Offence	Max. penalty/SNPP	Form 1	Indicative sentence
H7206886/11: Aggravated take and detain person for advantage (DV) s 86(2)(b) Crimes Act	20 years imprisonment No SNPP	H7206886/1: Common assault, s 61 Crimes Act Max. penalty 2 years imprisonment	6 years and 10 months
H7206886/5: Assault occasioning actual bodily harm (DV) s 59(1) Crimes Act	5 years imprisonment No SNPP	•	2 years and 6 months
Offence on s 166 Certificate – H7206886/6: Drive with high range prescribed concentration of alcohol present in blood s 110(5)(a) Road Transport Act 2013	18 months imprisonment and/or fine 30 penalty units No SNPP Automatic/mandatory licence disqualification: 3 years	•	6 months Disqualification period of 9 months

7. The applicant relies on a single ground of appeal:

Ground 1 – Her Honour’s sentence was manifestly excessive and a different sentence is warranted in law

Factual background

8. The factual background was set out in an Agreed Statement of Facts. The sentencing judge summarised the facts on pp2-5 of her Sentencing judgment. The following is a summary of those agreed facts.

9. At the time of the offence, the victim and the applicant had been in a de facto relationship for about nine months and were living together in Castlereagh. The applicant was 26 years of age and the victim 23.

10. On 2 November 2018, at approximately 6.30pm, the applicant drove the victim in his Ford Ranger to licensed premises in Richmond. They collected two of the victim’s friends from their home address along the way. All persons consumed a number of alcoholic drinks between 6.30pm and 10.30pm.

11. At about 11pm, the party commenced the journey home with the applicant as driver. He dropped the victim’s two friends at their home. He then continued to drive the victim towards their home in Castlereagh.

12. Along the way, the applicant and the victim started arguing. The argument escalated and the applicant drove past their home and continued driving towards Post Office Road in Castlereagh.

13. The applicant stopped the vehicle just before the electricity box on Post Office Road. The victim got out of the car from the passenger seat. The applicant grabbed her and forcefully pulled her back into the vehicle. (This was the offence of common assault on the Form 1.)

14. Once the applicant had forced her back into the vehicle, he punched the victim to the nose and face several times. These punches caused the victim’s nose to bleed. (This constituted the offence of assault occasioning actual bodily harm.)

15. The following narrative sets out those matters which made up the offence of aggravated take and detain person for advantage.

16. Having pulled the victim into the car, the applicant drove a short distance before stopping again in Post Office Road. The victim got out of the vehicle and was followed by the applicant. There was an altercation, which resulted in the applicant forcing the victim to the ground, on the side of the road and pinning her stomach to the ground with her head down. He then forced her onto her back, strangling her around the neck and placing his hand over her mouth and nose, to prevent her screaming.

17. The victim managed to break free from the applicant, at which point he grabbed her under her arms and by her hair. He dragged her to the driver’s seat of the vehicle. He pushed the victim so that her stomach was on the front seat and her head towards the gear stick and hand brake. The victim’s legs were left hanging out the side of the vehicle.

18. The applicant then sat on the victim, preventing her from getting out. He started driving the vehicle with the victim’s legs dragging along the gravel. He drove along Post Office Road before turning into Hinxman Road and on to Jolly Street. The distance of this journey was approximately 2.9 kilometres.

19. When the vehicle was travelling in Jolly Street, the victim fell out causing her to roll along the gravel onto the side of the road. The victim momentarily lost consciousness from the impact of landing on the ground. When she regained consciousness, she ran to a nearby house for assistance.

20. The applicant’s actions were witnessed. The witness described seeing a male holding onto a female from behind and trying to drag her into a car with the female struggling and screaming “Please, help me”. She saw the applicant drag the victim into the car, with the driver’s side door still open as he drove away. The witness described seeing the vehicle swerving along Post Office Road and heading towards Castlereagh Road.

21. A second witness described being at home in Post Office Road and hearing a female scream “Help, please help me”. The second witness saw the Ford Ranger pull over on the road and then accelerate towards Penrith. The driver’s side door was open and the vehicle drove away erratically before turning left onto Hinxman Road.

22. The victim attended Nepean Hospital Emergency Department where the following injuries were noted:

1. a large bruise in the midline of her forehead;

2. tenderness to her right cheekbone;

3. bruising to the right eye;

4. a small laceration to the bridge of the nose;

5. a laceration on the palm of the left hand;

6. superficial scratches over upper legs and both buttocks;

7. abrasions with skin loss on both heels;

8. two very large abrasions on the outer right leg, with an abrasion over the outer foot, loss of first and fifth toe nails and abrasions on the second toe; and

9. medium sized abrasions over the inner foot and toe, as well as skin loss over the sole of the foot.

23. The injuries sustained by the victim required daily dressing of the wounds. As a result of the injuries to the victim’s lower leg, she was referred to the Burns Unit of Concord Hospital where on 16 November 2018, she underwent skin grafting to the right lower leg and outer ankle, amounting to three per cent of the total body surface area.

24. In her victim impact statement (VIS), the victim said that for three months she was confined to a wheelchair, she was unable to shower and even with assistance, going to the toilet was difficult. There were daily visits to the hospital to redo the bandages over her wounds. The skin graft was slow to take so that the victim had to wear a pressure garment on a daily basis. The victim has been left with permanent scarring on both legs. Apart from the physical scars that remain, the victim has difficulty standing for long periods and even putting on her socks. She suffers from post traumatic stress disorder and is on high doses of anti-depressant medication. At the time of sentence, she was being treated by a counsellor.

25. The applicant was arrested and taken to Penrith Police Station. His breath analysis produced a reading of 0.176 grams of alcohol per 210 litres of breath. (This constituted the offence of drive with high range PCA – on a s 166 certificate.)

Proceedings on sentence

26. The sentence proceedings were heard on 15 May 2020. The documents tendered included seven photographs of the victim’s injuries. It should be noted at this stage that the photographs vividly show the serious nature of the injuries suffered by the victim to her legs.

27. The applicant’s criminal history showed an offence of contravening an Apprehended Domestic Violence Order which applied to events which occurred in December of 2018. The record also included offences of destroy or damage property and common assault. These offences were committed against the applicant’s former domestic partner. The sentencing judge noted that the applicant’s previous offending disentitled him to leniency in relation to this offending.

Applicant’s subjective case

28. The applicant gave evidence in the sentence proceedings. There was also a report from a psychologist, Ms Dombrowski, based on an interview which occurred in May of 2020. Ms Dombrowski reported that until the night of the incidents, the applicant had been working as a fulltime self-employed joiner and was living with the victim and her five year old daughter. He told Ms Dombrowski that because of his level of intoxication, he did not recall strangling or punching the victim, but accepted that he had done so. He said that he did not realise as he drove away that the victim’s legs were outside the vehicle.

29. It was the opinion of Ms Dombrowski that in giving that account, the applicant was attempting to minimise his offending behaviour. Mr Dombrowski was satisfied, however, that he was genuinely remorseful.

30. By way of further background, the applicant gave evidence that his parents separated when he was 12 months old and that he had grown up in Orange, living with his mother, and would regularly visit his father who was living nearby. He did not witness domestic violence between his parents but was exposed to their bickering. When he was aged nine, his father re-partnered and from the age of 12 to 18, the applicant lived with his father, stepmother and younger half-sister in Penrith. He did not form a close relationship to his stepmother. Ms Dombrowski noted that he remained in regular contact with his parents, who were supportive of him.

31. The applicant completed school to year 10 and then completed a four year apprenticeship as a joiner. He had been in regular employment since the age of 14.

32. Ms Dombrowski reported that the applicant had a small circle of personal friends and at the time of the psychological assessment, he had been in a new relationship with a woman for about five months. She was supportive of him, despite being aware of the circumstances surrounding the offending.

33. Ms Dombrowski reported that the applicant started drinking when he was aged 19. The applicant said that he mostly drank socially on weekends and did not typically engage in violent or irresponsible behaviour when intoxicated despite having previous convictions under those circumstances. He used alcohol heavily for a two week period before the present offending while on an overseas holiday with the victim. He said that after his arrest for the present offences, he had used alcohol heavily for 12 months in order to manage low mood. He has, however, now attended an outpatient alcohol detoxification program at St Vincent’s Hospital (December 2019) and since then, has been taking medication to manage alcohol cravings and had reduced his alcohol use. Ms Dombrowski noted that he had not reported any recent illicit substance use.

34. Ms Dombrowski opined that the applicant required treatment for the control of his alcohol use which was his “primary criminogenic need”. She noted that the applicant had never completed a psychotherapeutic substance abuse program and had limited insight into his substance use. She further recommended that the applicant needed to address the violent behaviour he demonstrated in his intimate/sexual relationships but particularly in a group treatment program for domestic violence offenders. Mr Dombrowski wrote that management of psychosocial factors such as stable housing, a return to employment and supportive peers would be important for the applicant’s rehabilitation.

35. In his evidence, the applicant confirmed that he had read the agreed facts and accepted them. He also confirmed that he had read the psychological report and that there was nothing in the history recorded by Ms Dombrowski which was incorrect or that he did not agree with. The applicant gave evidence that when he heard the victim read her VIS in court, this made him feel “terrible, hurt, sorry” because:

“Well just to see what someone’s gone through for so long. Pain and suffering. No-one deserves that.”

36. The applicant addressed the victim directly and told her that he was “truly sorry” for everything that she had gone through. The applicant agreed that he understood that the victim would be left with permanent scarring as a result of the injuries to her legs and that she would be experiencing ongoing psychological issues.

37. The applicant gave evidence that he understood that the offences were very serious and that the court did not really have a choice other than to impose a custodial sentence. When asked what benefit he might receive from the sentence and what he wanted to achieve upon his release from custody, he answered “Just to pull my head in line and think before I do things and make sure no-one’s hurt again. Make myself – better myself as a person”.

38. The applicant gave evidence that he did not drink anymore and did not have contact with the victim. The applicant agreed that he had some matters in the past where he was charged with domestic violence offences against the mother of his child. When asked what he had learned about domestic violence offending, he answered that “it just hurts everyone in the process, people suffer long term, and you won't be able to trust again and it will be hard to move forward”.

39. In cross-examination, the applicant accepted that the distance of 2.9 kilometres, which he drove with the victim’s legs out of the car, was a pretty long distance and that it would have taken him some time to complete that distance. He did not know at what speed he was driving. He accepted that the victim was screaming while he was driving the car. He did not know why he refused to stop. He accepted that this would have happened over a period of minutes. When asked what he would say about the photographs of the victim’s injuries he answered, “Terrible. Terrible”.

Findings of the sentence judge

40. When recounting the agreed facts on sentence in relation to the victim’s injuries, the sentencing judge observed:

“I pause to note that it is necessary to see the photos of the victim’s injuries that have been tendered on sentence to appreciate the seriousness of the injuries that were occasioned to her legs.” (Sentence judgment 4.9)

41. Her Honour noted that the assault occasioning actual bodily harm offence was “of itself an objectively serious offence of domestic violence”. Her Honour assessed this offence “at the midrange of objective seriousness”.

42. Her Honour assessed the aggravated take and detain offence at “above the midrange of objective seriousness” in relation to the aggravating feature of inflicting actual bodily harm. Her Honour found that:

“The injuries occasioned to the victim were, without hyperbole, horrific. They represent the most serious form of actual bodily harm.” (Sentence judgment 6.8-6.10)

43. Those findings have not been challenged in these proceedings.

44. In assessing the objective seriousness of this offending, her Honour noted that the factors which bear upon an assessment of the seriousness of a basic offence of kidnapping under s 86(1) of the Crimes Act include the period of detention, the circumstances of the detention, the person being detained and the purpose of the detention. Her Honour then set out nine factors which were relevant to this offending:

1. the offence took place in the context of an intimate relationship and constituted domestic violence so that significant weight must be accorded to general deterrence and denunciation;

2. the applicant acted in a controlling and violent way;

3. the offending did not form part of any pattern of violence towards the victim, although the applicant had been violent towards a former partner in the past;

4. the period of detention started with the victim being pinned to the ground, strangled and having her nose and mouth covered;

5. the period of the detention was relatively short, although when viewed in the context of a 2.9 kilometre car trip while the victim’s legs were being dragged along the road by the car at speed, the duration of time was not a significant feature;

1. the use of the vehicle to effect the unlawful detention increased the objective seriousness. Her Honour observed that the victim was “sat on by the offender in a moving vehicle so that there was literally nowhere for the victim to go”;

2. it was not possible on the material available to determine how it was that the victim finally exited the car, whether she fell or was pushed out;

3. “From the time that the offender pinned the victim to the ground, until the completion of the offence, she was in absolute terror. It was not an exaggeration on the victim’s part to state as she did, in her victim’s impact statement, that she believed she was going to die”; and

4. The applicant’s decision to detain the victim appeared to have been impulsive and affected by his heavy consumption of alcohol.

45. The Form 1 offence of common assault was closely related to the aggravated kidnapping offence so that her Honour did not give additional weight to the sentence to be imposed for the principal offence by reference to it. The offence of drive with high range prescribed concentration of alcohol (on the s 166 certificate) was assessed by her Honour as below the midrange of objective seriousness.

46. The sentencing judge was satisfied that the applicant was genuinely remorseful. Her Honour assessed the applicant’s prospect of rehabilitation to be “reasonable” and noted that “ultimately the [applicant’s] successful rehabilitation will come down to his own commitment to stop drinking and to listen to the experts”.

Applicant’s submissions

Ground 1 – Her Honour’s sentence was manifestly excessive and a different sentence is warranted at law

47. The applicant submitted that the indicative sentence for the offence of aggravated kidnapping, being a sentence of 6 years and 10 months imprisonment, indicated that the starting point, pre discount, was in the vicinity of 9 years. The applicant submitted that when that sentence is considered in isolation, it is very high, and was likely guided by the comparative cases with which the sentencing judge was provided.

48. The applicant noted that her Honour was provided with two cases for comparison, both involving domestic violence, to assist her Honour in assessing the appropriate sentences. The cases placed before her Honour were Diaz v R [2018] NSWCCA 33 and Jibran v R [2020] NSWCCA 86 (Jibran v R).

49. Her Honour noted in her reasons that:

“I have taken those cases into account while noting some inherent differences and that mathematical comparison with the two cases is not consistent with the process of instinctive synthesis I am to undertake”. (Sentence judgment 13)

50. The applicant submitted that the case of Jibran v R bore some similarity to the facts in this case in that the offender forced the victim into a car until she escaped from the moving vehicle. However, the applicant accepted that the offending in that case was more serious and violent than the facts of this case. Nevertheless, the applicant submitted that the offending was assessed as approaching the midrange of objective seriousness and the sentence imposed was similar to that in this case. In particular, the facts involved the victim being flung against a toilet where she hit her head and being struck between 20 and 30 times. There was also an offence of sexual intercourse without consent. The applicant noted that the sentence imposed in Jibran v R was only marginally higher than that in this case, despite more serious offending and a far more serious criminal history. The applicant submitted that Jibran v R demonstrated that the sentence in this case was excessive.

51. The applicant noted that for the offence of assault occasioning actual bodily harm (Count 2), an indicative sentence of 2 years and 6 months imprisonment was imposed, which represented a starting point of 3 years and 4 months. The applicant submitted that this was also high when compared to the maximum penalty for the offence and the very wide range of injuries that the offence encompassed. The applicant submitted that both indicative sentences were disproportionate to the offending and the strong subjective case of the applicant. The applicant submitted that in those circumstances, a lesser sentence was warranted at law.

Consideration

Sentencing principles

52. In order to succeed on a ground of appeal alleging that a sentence is manifestly excessive, the applicant must establish that the sentence was “unreasonable” or “plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Markarian v The Queen); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

53. Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to balance many different and conflicting features: Markarian v The Queen at [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34]. There will be a range of possible sentences that could be imposed without error: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128].

54. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R A Hulme J (with whom Bathurst CJ and Leeming JA, Hamill and N Adams JJ agreed) summarised the principles relevant to a ground of manifest excess. His Honour stated at [443]:

“443   When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

It is not to the point that this Court might have exercised the sentencing discretion differently.

There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

55. Even if an indicative sentence for an offence is found to be manifestly excessive, that does not necessarily mean that the aggregate is itself manifestly excessive. In JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 R A Hulme J (with whom Hoeben CJ at CL and Adamson J agreed) set out the principles applicable to the imposition of an aggregate sentence and to appellate review of aggregate sentences (at [39]-[40]). This included (at [40]):

“40   The following further propositions emerge from the cases in relation to appellate review of aggregate sentencing exercises:

...

11.    The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence: R v Brown, supra, at [17]; Nykolyn v R, supra, at [58]; PD v R [2012] NSWCCA 242 at [44]; R v Rae [2013] NSWCCA 9 at [32]-[33], [42]-[43]; Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [218], [227]; Subramaniam v R, supra, at [28]; SHR v R, supra, at [40]; R v Clarke, supra, at [56]; Martin v R [2014] NSWCCA 124 at [47]; JL v R [2014] NSWCCA 130 at [17]; Stoeski v R, supra, at [43]; CL v R [2014] NSWCCA 196 at [53H55].

12.   Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive: PD v R at [44],[82]; BJS v R [2013] NSWCCA 123 at [252]-[254].

13.   A principle focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved: R v Brown, supra, at [37]; R v Rae, supra, at [42]-[46], [62], [69]. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures: Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [231]; Martin v R, supra, at [33]-[41].

...”

56. The above statements of principle relating to the approach to be taken to a ground of appeal alleging manifest excess in the case of an aggregate sentence were quoted with approval by this Court in Kerr v R [2016] NSWCCA 218 at [114] (per Bathurst CJ, with whom Hoeben CJ at CL and Price J agreed) and more recently in TB v R [2020] NSWCCA 108 by Hoeben CJ at CL at [148]-[149] (Bathurst CJ and Harrison J agreeing).

Principles applicable to comparative sentences

57. The principles concerning the relevance of comparative sentences to the question of manifest excess were summarised by this Court in Merkel v R [2019] NSWCCA 212 (per Wright J, Macfarlan JA and Johnson J agreeing) at [80]:

“80   When, as in the present case, it is submitted that the manifest excessiveness of the sentence imposed is demonstrated by comparing the sentence with the sentences imposed in other cases, it is important to bear in mind the following principles:

(1)   consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]-[49], MLP at [41];

(2)   Secondly, in seeking consistency, other cases may establish a range of sentences which have been imposed, but the sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion. They stand as a yardstick against which to examine a proposed sentence. What is important are the unifying principles which such sentences reveal and reflect: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41], MLP at [42]; and

(3)   A careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] Bellew J (McClellan CJ at CL and Johnson J agreeing). This arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another: MLP at [44].”

58. In Droudis v R [2020] NSWCCA 322 the Court (Bathurst CJ; Hoeben CJ at CL; Hamill J) said at [130]:

“130   ... the point of having regard to comparable cases is to provide guidance as to the identification and application of relevant sentencing principles, and may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence, although the range so disclosed is not necessarily the correct range: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]-[49]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [25]-[28], [40]-[41]; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [26]-[27]; Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [61]-[83].”

Principles to be applied in domestic violence cases

59. In Cherry v R [2017] NSWCCA 150 at [78] and [79] Johnson J (with whom Macfarlan JA and Harrison J agreed) said the following:

“78   In R v Kilic (2016) 91 ALJR 131; [2016] HCA 48, the High Court observed at 137 [21] that current sentencing practices for “offences involving domestic violence [may] depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations”. It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community.

79   In the context of domestic violence offences, the High Court has observed that it is a longstanding obligation of the State to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence: Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 620 [54].”

60. In R v JD [2018] NSWCCA 233 Hoeben CJ at CL (Meagher JA and Fagan J concurring) cited the case of Cherry v R and said at [103] that:

“103   ... this Court has repeatedly stated that crimes of domestic violence towards female partners are to attract sentences of sufficient severity to deter others who might offend in a similar way. ...”

61. It should also be noted that the notional accumulation between the indicative sentence indicated for the aggravated kidnapping offence and for the assault occasioning actual bodily harm offence is two months. This demonstrates a very high level of concurrency and is counter indicative of the aggregate sentence being manifestly excessive.

62. That factor also strongly militates against the applicant’s submission that both the indicative sentences were “disproportionate to the offending and the subjective case of the applicant” and that they were seminal in the formulation of the aggregate sentence.

63. The applicant’s approach of taking the indicative sentences in isolation and using as a start point the pre-discounted indicative sentences is inconsistent with the principles set out in JM v R and TB v R. Rather, the principal focus must be on whether the aggregate sentence reflects the totality of the criminality involved.

64. In this case, the applicant’s sentence included a significant amount of concurrency between the two longest indicative sentences. The sentencing judge characterised this course of conduct as involving continued acts of domestic violence in a single evening. While a level of concurrency was appropriate in those circumstances, the applicant had inflicted actual bodily harm on the victim on two distinct occasions. This was against a background where her Honour found that the assault occasioning actual bodily harm offence “was of itself, an objectively serious offence of domestic violence” at the midrange of objective seriousness. In addition, the aggregate sentence included the offence of driving with a high range concentration of alcohol.

Conclusion

65. It follows from all the circumstances, that the imposition of an aggregate non-parole period of 4 years and 4 months, with an aggregate head sentence of 7 years, was within the bounds of the proper exercise of her Honour’s sentencing discretion.

66. This is made clear when regard is had to the following factors:

1. the aggravated take and detain offence was assessed at above the midrange of objective seriousness and no challenge is made to this finding. The maximum penalty of 20 years imprisonment for this offence is an important legislative guidepost;

2. the assault occasioning actual bodily harm offence was assessed at the midrange of objective seriousness. Again, no challenge is made to this finding. It is an offence carrying a maximum penalty of 5 years imprisonment;

3. the applicant’s subjective case was not a powerful one, even taking into account the sentencing judge’s finding that he was genuinely remorseful;

4. there was no evidence to support a finding that the applicant’s moral culpability was anything but high or that he was not an appropriate vehicle for general or specific deterrence;

5. the applicant’s self-induced intoxication is not to be taken into account as a mitigating factor when determining the appropriate sentence (s 21A(5AA) Crimes (Sentencing Procedure) Act 1999 (NSW));

6. the sentencing judge found that the applicant’s prior conviction for domestic violence offending against his previous female domestic partner disentitled him to leniency;

7. although the offending was unplanned, it was not fleeting. The totality of the offending involved relatively sustained violence reflected in the two index offences and the Form 1 offence. The aggravated detain offence lasted a distance of 2.9 kilometres while the victim’s legs were outside the car, which the applicant agreed in his evidence would have lasted a period of minutes;

8. the harm suffered by the victim was described by the sentencing judge as “horrific”; and

9. in accordance with principle, it was necessary for the sentence to reflect specific deterrence, general deterrence, recognition of the human dignity of the victim and the community’s legitimate interest in the denunciation of alcohol fuelled domestic violence.

67. It follows that the applicant has not established that the sentence imposed on him was manifestly excessive. This ground of appeal should be dismissed.

68. The orders which I propose are:

1. Leave to appeal against sentence is granted.

2. The appeal is dismissed.

69. HAMILL J: I agree with Hoeben CJ at CL.

70. WILSON J: I agree with Hoeben CJ at CL.

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Decision last updated: 23 April 2021