COUNSEL: Ms LK Wells (Appellant) Ms A Francis (Respondent)
SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) (Appellant) Legal Aid Commission of New South Wales (Respondent)
CATCHWORDS: SENTENCING Crown appeal domestic violence offences of detain for advantage, assault occasioning actual bodily harm and common assault public justice offence of influence witness (victim) under s.323(a) Crimes Act 1900 offender on parole offences committed against victim in both community and in prison attitude of victim to penalty importance of specific and general deterrence sentences manifestly inadequate
Crown appeal allowed with respect to sentences imposed in the Wollongong District Court on 13 December 2007.
Sentences imposed in the District Court quashed and, in lieu thereof, the Respondent is sentenced as follows: (a) Count 1 - imprisonment for a fixed term of six months to date from 18 April 2007 and expire on 17 October 2007; (b) Count 2 - imprisonment for a fixed term of nine months to date from 18 October 2007 and expire on 17 July 2008; (c) Count 3 - imprisonment for a fixed term of nine months to date from 18 January 2008 and expire on 17 October 2008; (d) Count 4 - imprisonment for a fixed term of 18 months to date from 18 January 2008 and expire on 17 July 2009; (e) Count 5 - imprisonment by way of a non-parole period of two years and six months to commence on 18 October 2007 and to expire on 17 April 2010 with a balance of term of one year and six months to commence on 18 April 2010 and to expire on 17 October 2011; (f)…
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.
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Details
AGLC
R v Burton [2008] NSWCCA 128
Case
[2008] NSWCCA 128
Decision Date
CaseChat Overview and Summary
The case of R v Burton was heard in a court where the respondent was appealing a sentence given for multiple domestic violence offences. The respondent, who was on parole at the time of the offences, was convicted of detaining the victim for personal advantage, assault occasioning actual bodily harm, common assault, and influencing a witness under the Crimes Act 1900. The victim, who was significantly older than the respondent and had three children, was subjected to a series of violent attacks both in the community and while in prison. The Director of Public Prosecutions filed a notice of appeal under section 5D, arguing that the sentences imposed were manifestly inadequate.
The legal issues before the court were whether the sentences imposed were appropriate in the circumstances, considering the gravity of the offences, the need for specific and general deterrence, and the attitude of the victim towards the penalty. The court had to consider the respondent's history of drug use and rehabilitation, his parole conditions, and the impact of his actions on the victim and her children. The court also needed to weigh the importance of the community's confidence in the justice system against the respondent's personal circumstances.
In delivering the judgment, the court found that the sentences imposed were manifestly inadequate. It considered the severity of the offences, the vulnerability of the victim, and the need for specific and general deterrence. The court emphasised that the respondent's actions not only violated the victim in the community but also in prison, where he should have been safe from such harm. The court concluded that the sentences did not adequately reflect the seriousness of the offences or serve the purposes of punishment and deterrence. The appeal was therefore allowed, and the matter was remitted to the sentencing court for re-sentencing.
The court did not specify the final orders but indicated that the respondent should receive a sentence that properly reflects the seriousness of the offences and serves the purposes of punishment and deterrence. The court also noted that the victim's attitude towards the penalty and her desire for protection from the respondent should be considered in determining the appropriate sentence.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Notice of Appeal under s.5D was filed by the Director on 18 December 2007 and served upon the Respondent on 20 December 2007.Facts of Offences On 31 August 2006, the Respondent (then aged 26 years) was released on parole (to conclude on 31 August 2007) as part of a sentence of imprisonment for break, enter and steal. The Respondent’s conditions of parole required him to attend counselling and undertake a rehabilitation programme for drug use. In November 2006, the Respondent commenced a relationship with the victim of these offences. She was about eight years older than the Respondent and had three children from a former relationship, being daughters aged 15 and seven and a son aged 11 years. From the outset, the Respondent moved into the victim’s home at East Corrimal and lived there with her and her children. The following account of the Respondent’s offences is drawn from a statement of agreed facts together with other evidence given in the sentencing proceedings.Count 1 - Assault On 16 December 2006, the Respondent returned home “ranting and raving”. He threw the victim’s mobile phone to the floor, smashing it, and dragged her into the bedroom by the hair and then grabbed her by the throat, pushing her up against a cupboard and then applied both hands to her throat before pushing her onto the bed. The victim called out to her 11-year old son to call the police and he did so. The Respondent threatened to punch the victim in the head and head butt her. He then told her that he had “done rock and ecstasy today”. When the police arrived, the victim told them that she and the Respondent had been arguing. Because the Respondent was beside her, the victim was fearful of what he might do if she complained to the police. Police gave her a card to sign, which she ticked in the space that said that she did want someone to call her. Count 2 - Assault Occasioning Actual Bodily Harm On Christmas Day 2006, the victim drove her children and the Respondent to Collaroy Plateau to visit her grandmother for Christmas lunch. During the day, she noticed that the Respondent “started getting cranky and agitated”. As they drove home, the Respondent began “going on about my [the victim’s] father being a paedophile”. The Respondent was sitting in the front passenger seat and had his foot on the dashboard of the Mitsubishi Pajero. He suddenly kicked his foot out the open window of the car striking the windshield and visor of the car. The windshield flew off and the mirror broke. The victim became very frightened. The Respondent began “ranting” about her family and said that they were all waiting for her grandmother to die. He then turned to the victim and gave her a backhander across the face with his right hand, causing her lip and nose to bleed. He went to hit her several more times, but stopped himself and grabbed the steering wheel instead.Count 3 - Assault On or about 13 January 2007, the victim was in the bath. Her children were at home. The Respondent “stormed in and out of the bathroom … yelling and ranting”. At one stage, he said “What would you do if I kicked you in the head?”. The victim then felt a heavy blow to the back of the head. The Respondent walked out of the bathroom and the victim got out of the bath. She saw that the Respondent had left the house. She locked all the doors and windows.