R v Burton - [2008] NSWCCA 128

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Burton [2008] NSWCCA 128

FILE NUMBER(S):
2008/54

HEARING DATE(S):
29 April 2008

JUDGMENT DATE:
20 June 2008

PARTIES:
Regina (Appellant)
Michael Anthony Burton (Respondent)

JUDGMENT OF:
Campbell JA Grove J Johnson J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/41/0094, 07/41/0095

LOWER COURT JUDICIAL OFFICER:
Murrell SC DCJ

LOWER COURT DATE OF DECISION:
13 December 2007

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

LEGISLATION CITED:
Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY:
Principal judgment

CASES CITED:
R v Wall [2002] NSWCCA 42
Markarian v The Queen [2005] 228 CLR 357
R v Hamid (2006) 164 A Crim R 179
Hiron v R [2007] NSWCCA 336
R v Moffitt (1999) 20 NSWLR 114
R v McNaughton (2006) 66 NSWLR 566
Callaghan v R (2006) 160 A Crim R 145
R v Baker [2000] NSWCCA 85
R v Mobbs [2005] NSWCCA 371
Warby v R (2007) 171 A Crim R 575
R v Merrin (2007) 174 A Crim R 100
R v Newell [2004] NSWCCA 183
R v Falls [2004] NSWCCA 335
R v Glen (19 December 1994, unreported, BC9403423)
R v Palu (2002) 134 A Crim R 174
R v Newman and Simpson [2004] NSWCCA 102
R v Olbrich (1999) 199 CLR 270
R v Edigarov (2001) 125 A Crim R 551
R v Knight [2007] NSWCCA 283

TEXTS CITED:
---

DECISION:

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)          Count 6 - imprisonment by way of a non-parole period of two years to commence on 18 December 2007 and to expire on 17 December 2009 with a balance of term of one year to commence on 18 December 2009 and to expire on 17 December 2010;
(g)       Count 7 - imprisonment for a fixed term of 14 months to date from 18 August 2008 and expire on 17 October 2009.
The earliest date upon which the Respondent will be eligible for release on parole is 17 April 2010.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

2008/54
CAMPBELL JA
GROVE J
JOHNSON J
20 June 2008

REGINA v MICHAEL ANTHONY BURTON

Judgment

CAMPBELL JA: I agree with Johnson J.
GROVE J: I agree with Johnson J.
JOHNSON J: This is an appeal by the Director of Public Prosecutions under s.5D Criminal Appeal Act 1912 alleging manifest inadequacy of sentences imposed upon the Respondent, Michael Anthony Burton, in the Wollongong District Court on 13 December 2007 for a number of domestic violence offences and a related public justice offence.
Sentences Imposed in District Court
Following pleas of guilty, the Respondent was sentenced for the following offences:
(a)Count 1 - common assault on 16 December 2006 (s.61 Crimes Act 1900 - maximum penalty two years’ imprisonment) - fixed term of three months’ imprisonment from 18 January 2007 to 17 April 2007;
(b)Count 2 - assault occasioning actually bodily harm on 25 December 2006 (s.59(1) Crimes Act 1900 - maximum penalty five years’ imprisonment) - fixed term of six months’ imprisonment from 18 January 2007 to 17 July 2007;
(c)Count 3 - common assault on 13 January 2007 (s.61 Crimes Act 1900) - fixed term of nine months’ imprisonment from 18 January 2007 to 17 October 2007;
(d)Count 4 - assault occasioning actually bodily harm on 17 January 2007 (s.59(1) Crimes Act 1900) - fixed term of 18 months’ imprisonment from 18 April 2007 to 17 October 2008;
(e)Count 5 - detain with intent to obtain advantage between 17 and 18 January 2007 (s.86(1)(b) Crimes Act 1900 - maximum penalty 14 years’ imprisonment) - imprisonment for two years and six months from 18 April 2007 to 17 October 2009 with a non-parole period of 18 months expiring on 17 October 2008;
(f)Count 6 - influencing witness between 1 and 13 February 2007 (s.323(a) Crimes Act 1900 - maximum penalty seven years’ imprisonment) - good behaviour bond under s.9 Crimes (Sentencing Procedure) Act 1999 for three years with a condition to accept supervision of the Probation and Parole Service;
(g)Count 7 - common assault on 24 March 2007 (s.61 Crimes Act 1900) - good behaviour bond under s.9 Crimes (Sentencing Procedure) Act 1999 for three years with a similar condition as in Count 6.
There was a total effective non-parole period of one year and nine months commencing on 18 January 2007 and expiring on 17 October 2008 with a total effective balance of term of one year expiring on 17 October 2009.
As the single sentence of imprisonment which included a non-parole period did not exceed three years, her Honour made an order under s.50 Crimes (Sentencing Procedure) Act 1999 directing the release of the Respondent to parole on 17 October 2008.
The sentences for Counts 1 and 2 were backdated so that they were entirely concurrent with the balance of parole being served by the Respondent from 18 January 2007 to 3 September 2007 following the revocation of his parole in respect of an earlier offence of break, enter and steal. The sentences for Counts 3, 4 and 5 were partially concurrent with the balance of parole already served at the time of imposition of sentence.
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.
The victim rang her brother in Perth and told him to call the police if he ever received a text message from her with just the letter “a” in it. While the victim was on the phone to her brother, the Respondent returned and demanded that she open the front door, threatening “If you don’t open the door, I’m going to go around the back and smash the door in”. The Respondent then went around the back and started kicking the glass door. The victim let him in and remained at the house.
Count 4 - Assault Occasioning Actual Bodily Harm
On 17 January 2007, the Respondent was in an aggressive mood all day. When he and the victim went to bed that night, he began to yell at the victim, calling her a “smart cunt”. He then stormed out of the bed, walked around to her side and put his hands on her neck and began to strangle her. The victim couldn’t breathe. She thrashed about on the bed trying to break free of him. He punched her on the left side, leaving a bruise. The victim was screaming until the Respondent tightened his grip so that she could not scream any further.
Count 5 - Detain for Advantage
Following the assault on 17 January 2007 (Count 4), the Respondent demanded that the victim get up, saying “we are going for a drive”. He threatened “I am not doing this here where the neighbours can hear”. The Respondent said “I need money, I want you to sign all three of your cars into my name, do it”. He told the victim that they were going for a drive up the mountain. The victim complied as she was scared of the Respondent and feared that he would hurt her if she objected.
While driving towards Mt Kembla, the Respondent produced a knife which he held to the victim’s neck as he yelled “You will do what you’re fucking told”. The victim complied with the Respondent’s demand that she turn around and drive up Mt Ousley. He said to her “How stupid are you, driving yourself to your own funeral” and “I’m going to kill you”. As the victim drove up Mt Ousley, the Respondent spat on her several times. He made her pull over on a dirt track on a road off the freeway, and threatened to harm her seven-year old daughter as he held the paper and pen out for her to sign the vehicles over to him. The victim persuaded the Respondent to drive to an area with lighting. She drove to Mt Kembla where they stopped at a service station. The Respondent said “Fuck it, just go home, it doesn’t matter where I kill you, I have the body bag”.
On the return journey from Mt Kembla, the victim said she needed to stop to get some cigarettes and a drink at a store in West Wollongong. There were customers in the store so the Respondent made the victim wait in the vehicle until they left. The victim entered the store and spoke to the store attendant, asking for cigarettes. She then said to the store attendant “Can you lock that door. Can you see my neck, the man out in that truck has got a knife and is going to kill me. Lock the door and ring the police”. Just as the attendant was about to ring, the Respondent got out of the vehicle and walked towards the store. The victim said nothing further to the attendant. She finalised her purchase and then left.
As they drove past Officeworks at Fairy Meadow, the Respondent demanded that the victim stop there. He told her to get out and that if she did not, he threatened to drag her out. He then dragged the victim over to a wall and showed her how he was going to “rip the place off”. They then got back into the vehicle and the victim drove back to the house.
The victim then sent three text messages on her mobile phone to her brother using the previously arranged code, whilst she made the Respondent coffee as demanded by him. The Respondent handed the victim a pen and pad and demanded that she sign over the Pajero, at the same time threatening to stab her with a hair comb with a thin metal end. He then demanded that she go to bed with him.
At 11.00 am on 18 January 2007, the Respondent demanded that the victim get up as he had to attend a drug counselling appointment as part of his parole. The victim subsequently went and sat in the truck and called “000”. The police arrived a short time later and a detailed statement was taken from the victim on that day. The Respondent was arrested on 18 January 2007 and declined to be interviewed. Bail was refused and he remained in custody thereafter.
On 1 February 2007, the Respondent’s parole was revoked by the State Parole Authority with a balance of term to be served of seven months and 17 days to commence on 18 January 2007 and expire on 3 September 2007.
Count 6 - Influencing Witness
Whilst being detained at Long Bay Correctional Centre, the Respondent regularly telephoned the victim. Between 2 February 2007 and 12 February 2007, a number of telephone calls took place which gave rise to the charge of influencing a witness under s.323(a) Crimes Act 1900. Telephone calls made by the Respondent from prison to the victim and others were recorded.
In a telephone call on 2 February 2007, the Respondent raised the subject of withdrawing the charges and the victim indicated that she had tried a number of avenues but “didn’t get anywhere”. She said that she had received advice that if she tried to withdraw her statement, she could be charged with public mischief. The Respondent assured the victim “that [being charged with public mischief] won’t happen. They will say a lot of stuff like that to you. … You don’t get into that much trouble. Better than leaving me in here to rot, you know what I mean?”. The victim asked the Respondent “Are you just doing this so you can get out of there?”. Throughout the calls, the Respondent insisted that he was not motivated by a desire just to get out of prison. He said that he loved the victim and wanted to be with her. On a number of occasions, he spoke to the victim about marrying him.
In a telephone call on 4 February 2007, the Respondent again raised the subject of withdrawing the charges. He suggested that the victim go and see his solicitor who would “get them lifted easier”. The Respondent instructed the victim what to say to his solicitor:
“If you go to him and say that you want to make an affidavit and withdraw the charges, he’ll get it put into court sooner, so long as you say that you want the charges lifted and stuff. Cause I’ve been talking to a couple of people in here and they’ve told me the way you can go about it. That’s what you want to do but isn’t it?”.
In the phone call, the Respondent said to the victim:
“Yeah I’ll go to rehab and at the same time I’ll do the psychological as well. I’ll book into that one down at Berkeley, the William Booth. It’ll run for about three months. The police are going to tell you all these things, that you’ll be charged. You might be but you’re not going to go to gaol. You’ve got too clean a record, baby. It’s whether you want me home or not, cause I want to come home and I want to prove to ya, I’ll do everything in my power to prove to ya that I’m going to change. I’m never going to do nothing like that to you again …”.
When the victim did not respond to this persuasion, the Respondent asked:
“That’s what you want don’t you? You want me to come home do ya … There’s gotta be another way we can deal with all this. You want it all to go away don’t ya? I thought that’s what you were doin’. I’m not just wanting you to get rid of it and just get me out so I’m free. I want to come home”.
The victim then indicated her willingness to see the Respondent’s solicitor by confirming his name and the location of his office.
In a further call on 4 February 2007, the Respondent said to the victim:
“You know the worst that will happen to you if you get charged? You’ll just get a good behaviour bond … I need to be out there babe to get help”.
The Respondent then told the victim what she had to do the next time the matter went to court:
“All you’ve got to do is when it goes to court next, stand up and say ‘I don’t want to go through with it, I was acting irrational, I made a false statement’, whatever. The judge will go ‘It has to go’, they’ll have to throw it out of court”.
In a call on 5 February 2007, the Respondent enquired of the victim “Have you tried speaking to the Ombudsman?”. He told the victim that the Ombudsman “controls all the government departments and stuff. Someone told me you could speak to him, try ringing him. And see what advice he can give ya”. When the victim said she was going to wait and speak to the detective, the Respondent suggested another option, the Chamber Magistrate.
In a call on 10 February 2007, the victim said:
“… seems to me that all you want to do is get out of here and you don’t want to face up to doing it”.
The Respondent replied:
“Do you understand what happens if I do? … They’re going to prosecute and hammer me real hard for it. All I can say is I’m sorry”.
In a further call on 10 February 2007, the Respondent said:
“If I leave you, you’re just going to testify and everything … I just don’t know why you want to hold this over me … at least give me the chance to come out and help myself. I don’t understand how you can leave me in here. It’s a long time. I’m only young. By the time I get out my life’s over, finished”.
The victim said:
“You should have thought of that, Michael”.
The Respondent said:
“I didn’t. I was out of my mind. I didn’t realise all that. I didn’t actually kidnap ya. I wasn’t …”.
The victim said:
“No you were just going to kill me, that’s all”.
The Respondent said:
“Even those charges. They’re a bit different to these charges. I’ve got no leg to stand on baby. I really thought you were going to be there for me. It just sounds like you’ve got me where you want me and that’s it”.
In a call on 12 February 2007, the Respondent said that his solicitor had recommended that he plead guilty if they could keep things in the Local Court and the victim was to speak to the Director of Public Prosecutions about this.
On 7 May 2007 and 16 July 2007, the victim made statutory declarations which she delivered to the police, indicating that she wanted all charges against the Respondent to be “dropped/withdrawn”. At no time in those statutory declarations did she recant the allegations.

The Respondent gave evidence at the District Court sentencing hearing on 12 December 2007. It is appropriate to set out here some of the evidence of the Respondent concerning telephone calls which bear upon Count 6. He was asked in cross-examination about a call he made to his brother’s partner (T9.26):
“Q. And you said ‘I’m going to play her [the victim] on this side of the fence and I need you playing that side of the fence and don’t let nothing get back to her because she’s seen me as an easy fucking target the day I got out’?
A. Yes I do remember saying that but I turned around and told [the victim] the next day about the phone call, I really regretted what I said, I didn’t mean to say it, I was shocked by what [his brother’s partner] was saying to me. It took me a whole night of sitting there really thinking about what was said on the phone and I knew that it wasn’t right what had been said and I just acted straight on instinct straight away which I regret saying, yes.
Q. Isn’t it you indicating the advantage that you were taking of your relationship with [the victim] to try and get yourself out of gaol?
A. No.”
Soon after in cross-examination, the Respondent was asked (T10.38):
“Q. Do you remember in a phone call that you made to [the victim] from the gaol on 4 February this year at 12.23, you said to [the victim] ‘Don’t you want me home?’ and [the victim] said to you ‘Not if you’re just going to use me as your punching bag, that’s not what I’m hear [sic] for.’ And you said ‘I’m not, I’m not baby, I don’t even know why that happened, I thought that’s what you wanted, it sounds weird’. And [the victim] said ‘What?’ And you said ‘I can’t explain it, I know it sounds wrong’. And [the victim] said, ‘I don’t know why you would think that way.’?
A. Yes.
Q. Do you recall that?
A. Yes I do.
Q. You thought that’s what she wanted?
A. It was just an expression that came out wrong at the time. When we were arguing sometimes when we argue its [sic] like she wants me to explode, it’s just the stupid way I looked at it and I know that is wrong and it’s not what she wanted and I know that’s not what she wanted.”
Count 7 - Assault
Around the time of the telephone calls, the victim began to visit the Respondent on a regular basis at Long Bay Correctional Centre. On 24 March 2007, the victim visited the Respondent, accompanied by her seven-year old daughter. During the visit, the Respondent threatened her, saying:
“If you’re not waiting for me when I get out of here, I will hunt you down and kill you. If I can’t find you, I will go after one of your family members”.
At the same time, he grabbed hold of the victim by the throat. At the time, the victim’s seven-year old daughter was sitting beside her.
The Respondent’s Subjective Circumstances
The Respondent was born in January 1980. He was 27 years of age at the time of sentence. He has an extensive criminal record including offences of violence and dishonesty and drug offences. What follows is not an exhaustive statement of his record.
On 22 September 1997, he was fined in the Port Kembla Children’s Court for assault occasioning actual bodily harm. On 11 May 1998, control orders were imposed at Port Kembla Children’s Court for offences of maliciously inflicting grievous bodily harm and assault. On 21 January 2000, the Respondent was placed on a 12-month recognisance for offences of assault police and resist arrest. On 29 March 2000, he was fined in Port Kembla Local Court for common assault. On 25 July 2000, he was placed on s.9 bonds in the Wollongong Local Court for offences including breach of an apprehended violence order (relating to his mother), malicious damage and supplying a prohibited drug. On 10 October 2000, the Respondent was placed on a further s.9 bond for malicious damage to property.
On 18 January 2005, a suspended sentence was imposed in Wollongong Local Court for common assault, with conditions including probation and parole supervision and to obey all reasonable directions for counselling, educational development or drug and alcohol. The common assault offence involved the Respondent punching a female security guard twice to the head in the course of an incident outside Dapto Leagues Club on 31 July 2004.
On 31 January 2006, the Respondent was sentenced in the Wollongong District Court to imprisonment for two years with a 12-month non-parole period (to date from 1 September 2005) for break, enter and steal. Offences of larceny, possess prohibited drug and being carried in a conveyance without consent of the owner were taken into account, on a Form 1, on sentence. In addition, on 31 January 2006, the Respondent was sentenced in the Wollongong District Court to imprisonment for six months for common assault which occurred in the following circumstances. The Respondent had alighted from a vehicle in Wollongong on 1 March 2005 and approached a male acquaintance in the street saying “I am going to kill you because you dobbed me into the cops”. The Respondent struck the man to the back of the head twice. The man struggled free and ran off as the Respondent was urged to return to the vehicle by one of its occupants and did so.
The present offences were committed whilst the Respondent was on parole for the break, enter and steal offence.
A report of Ms Anita Duffy, psychologist, dated 10 December 2007 was tendered in the sentencing proceedings. Ms Duffy had interviewed and assessed the Respondent at Parklea Correctional Centre on 30 November 2007 and 4 December 2007. Her report recounted a disturbed family upbringing and the Respondent’s behavioural problems whilst at school. The Respondent gave a history of drug usage including amphetamine, heroin, ecstasy and crystal methylamphetamine. His drug problems led to conflict with his mother who excluded him from her house in 2000. The Respondent informed Ms Duffy that he attributed his present offending behaviour to drug usage, specifically crystal methylamphetamine or “ice”.
The Respondent informed Ms Duffy that his employment history included work as a labourer, roof tiling, spray painting and work in a smash repair shop.
According to Ms Duffy, the Respondent was a depressive individual with entrenched feelings of worthlessness, vulnerability and emotional insecurity. He had tried to deal with his depression by taking drugs from an early age. Ms Duffy thought that the Respondent needed treatment which focused on his drug-dependent issues as well as his propensity towards violence and anger.
Ms Duffy concluded that without professional intervention of an intensive nature, there was a risk that the Respondent could offend in a similar manner again. She observed that he had some insight and had expressed motivation to change. Ms Duffy proposed that, upon the Respondent’s release, he would require close supervision by the Probation and Parole Service to monitor his substance use and refer him to further agencies as required. She observed that, if the Respondent remained in a relationship with the victim, it was imperative that they receive extensive couple counselling with a relevant agency before contemplating living together.
No report by an officer of the Probation and Parole Service was tendered at the sentencing hearing.
As mentioned earlier, the Respondent gave evidence on sentence. He said that he had thought about what he had done and the impact that it had on the victim and her children. He said that drugs were the problem and that they made him act in anger. He said he was willing to stay away from drugs and that he hadn’t touched drugs since he had been in custody. He had undertaken drug and alcohol courses whilst in gaol. He said he was willing to change and participate in counselling sessions upon his release from custody.
The Offender was cross-examined about his use of “ice” and its relevance to the offences (T11.1):
“Q. You told Ms Duffy that the psychologist that you tended to attribute the offences basically to your heavy use of ice at the time and your irritability when withdrawing from it?
A. Yes.
Q. You’ve given evidence today that you haven’t touched drugs since you’ve been in gaol?
A. Yes.
Q. How then do you explain the final offence of assault on the indictment where you threatened [the victim] in front of her seven year old daughter on 24 March 2007 and said ‘If you’re not waiting for me when I get out of here, I’ll hunt you down and kill you, if I can’t find you I will go after one of your family members as you grabbed hold of her throat’?
A. Yes, it takes a few months for the crystal meth to stop making your emotions go up and down and the thoughts in your brain slow down and flashbacks come back on you and I was trying to push [the victim] away at the time because I thought it would be better for her to be away from me and I was saying stupid things I didn’t mean to make her try and run and just stay away from me and have no contact with me which I really regret saying.
Q. So this was all in her interests was it?
A. Yes it was.
Q. To grab her by the throat and threaten her in this way?
A. Yes I had put my hand on her throat but did not squeeze as hard as the report makes out.”
The Respondent acknowledged that he was having drug counselling whilst on parole but that did not stop him committing these offences (T12.27).
The victim also gave evidence for the defence in the District Court and a letter she had written was tendered in the Respondent’s case. She said that he had asked her to marry him and she had agreed, but that he had to stay off drugs. She said that the Respondent’s behaviour had changed over the period he had been in custody. In her letter, the victim said that she and her three children loved the Respondent and missed him. She did not blame him for what had happened. She said that he was not himself and could not control his anger because of drugs. She said that he was a loving, gentle and caring man when he was not taking drugs and a great father figure to her children. The victim said that she and the children “wish for nothing more than for Michael to come home for Christmas”. She said that she had not been coping well emotionally or financially since the Respondent went into custody.
Some Findings of the Sentencing Judge
With respect to Counts 1 to 5 and 7, the learned sentencing judge observed that the Respondent was entitled to a discount for his plea of guilty of “something in the range of perhaps 15% or a little higher” (ROS[2]). In relation to Count 6, her Honour said that “the discount would ordinarily be a 25% discount as the plea was entered at the earliest reasonable opportunity” (ROS[2]).
Her Honour observed that each of the offences was objectively serious and that the detain for advantage offence was aggravated by the actual and threatened use of violence and the fact that the offence had continued over a period of time and at various locations (ROS[18]). All of the offences were committed soon after the Respondent had been released to conditional liberty (ROS[18]).
The sentencing judge stated that the victim’s view about an appropriate sentence “is of minimal relevance because a crime is, essentially, a crime committed, against the community” and that “the victim’s views on the matter are not something that, in any significant way, alter the penalty which I would otherwise be minded to impose” (ROS[19]).
Her Honour observed that there was some reason for optimism as the Respondent seemed to have some insight into his problems and said he was motivated to change (ROS[26]).
Her Honour observed that the Respondent’s criminal history did not assist him at all (ROS[28]).
The sentencing judge accepted that the Respondent was quite genuine when he said he wanted to rehabilitate himself. She accepted that he had not been using drugs in custody, however, was “far from certain that the rehabilitation will materialise” given the Respondent’s “cocktail of problems and his long history of substance abuse” (ROS[29]). Special circumstances were found because the Respondent would “require a good deal of assistance and supervision for him to have any prospect of that [rehabilitation] occurring” (ROS[29]).
Given a particular challenge which the Crown makes to sentence on the s.323(a) charge (Count 6), it is appropriate to set out parts of the remarks on sentence concerning this offence. Her Honour summarised the s.323(a) offence in the following way (ROS [15]-[16]):
“15. While on remand in custody, he regularly telephoned the victim. A number of calls occurred between 2 and 12 February 2007. Generally, the relevant calls involved the offender promising to do better upon his release and asking the victim to take steps to have the charges withdrawn. He referred to various means by which she might achieve that. He apologise [sic] to her, asked for a further chance, and made other comments of that nature.
16. In the middle of 2007, the victim signed a statutory declaration stating that she did want the charges withdrawn.”
Her Honour approached sentence on Count 6 in the following way (ROS[35]):
“In relation to the influence witness matter, for several reasons I consider that to be towards the lower end of the scale in terms of offences of that type. First, the offence covers a very broad range of activities. The offence in this case is one which did not involve any threats. The offender was not in a position to do anything of substance in that he was in custody, so any threat was a hollow one. It involved an attempt to persuade which was not necessarily an attempt to persuade that was dishonest in the sense that the offender was making false promises. He told [the victim] that he would try to rehabilitate himself, he wanted to be back with the family, etc, and he would like to get out as soon as possible. That was the nature of the persuasion. One also has to take into account the relationship between the offender and the victim. It is not possible to ignore the fact that they were in a domestic relationship, so statements of the type made were something that one would expect between a person who was incarcerated and his partner. I do not regard the matter as a matter of any great significance so far as the range of offences of this type is concerned. In relation to the matter, instead of imposing a sentence of imprisonment, pursuant to s9 I make an order directing the offender to enter into a good behaviour bond for a period of three years. The bond is subject to the condition that he accept the supervision of the Probation and Parole Service for the whole of the term and report to the Service within two working days of being released from custody.”
In relation to Count 7, the offence of assault committed in the visiting area on 24 March 2007, her Honour observed (ROS[36]):
“… In light of the other sentences of imprisonment that have been imposed I consider that, although the matter is very serious matter indeed, considering that the offender attacked the victim when the child was right beside her, the most efficacious way of dealing with it is to impose another s9 bond, which will mean that any further conduct of this nature will constitute a breach of the bond and, presumably, the imposition of a significant sentence. Pursuant to s9, I make an order that he enter into a good behaviour bond for a term of three years on the same conditions as the other bond.”
Principles Governing a Crown Appeal on Sentence
The constraints on Crown appeals, and the discretion which is inherent in their disposition, were summarised by Wood CJ at CL (Meagher JA and Bell J agreeing) in R v Wall [2002] NSWCCA 42 at [70]:
“(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong v The Queen (2001) 207 CLR 584 at 605 [58] and 624 [109].
(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.
(c) A Crown appeal against sentence is concerned with establishing matters of principle ‘for the governance and guidance of courts having the duty of sentencing convicted persons’: per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299, Dinsdale v The Queen (2000) 202 CLR 321 at 340 [61] and [62] and Wong v The Queen (at 624 [109]).
(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247 and Wong v The Queen (at 624 [110]).
(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston [1983] 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen (at 340 [62]).”
In Markarian v The Queen [2005] 228 CLR 357 at 370-371 [25], Gleeson CJ, Gummow, Hayne and Callinan JJ said with respect to the appellate function of this Court on sentence:
“As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v R [(1936) 55 CLR 499 at 504–5] itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as ‘manifest excess’, or in a prosecution appeal, as ‘manifest inadequacy’.”
Submissions on the Appeal
Crown Submissions
The Crown submitted that specific error existed in this case as well as manifest inadequacy in both the sentences imposed and the approach adopted to accumulation and concurrency.
The Crown submitted that specific error arose in that her Honour had misconceived the ambit of the s.323(a) offence (Count 6) by referring to the fact that the Respondent had not made any threats. It was pointed out that the offence of threatening or intimidating a witness under s.322(a) Crimes Act 1900 carries a maximum penalty of 10 years’ imprisonment. It was submitted that the absence of threats (which would have constituted a different and more serious offence) could not bear upon the objective seriousness of a s.323(a) offence.
The Crown submitted that the total effective sentence imposed by her Honour was manifestly inadequate and failed to reflect the totality of the Respondent’s criminality in relation to each of the offences, in particular given the aggravating factors present.
It was submitted that the sentences for Counts 1 to 5 were manifestly inadequate due to the structure of the sentences. Specifically, it was submitted that her Honour erred in making individual sentences either partially or wholly concurrent with each other, and commencing the sentences so that they were totally or partially subsumed in the sentence already served by way of balance of parole.

It was submitted that the s.9 bonds imposed for the offences of influence witness and common assault on 24 March 2007 (Counts 6 and 7) were, of themselves, manifestly inadequate.
With respect to the detain for advantage offence (Count 5), the Crown submitted that her Honour did not advert expressly to the actual use of a weapon (a knife) as an aggravating factor under s.21A(2)(c) Crimes (Sentencing Procedure) Act 1999. Further, several threats were made to the victim throughout the journey and the victim was in fear for her life.
With respect to Counts 1 to 4, the Crown submitted that the commission of repeated domestic violence offences elevated their seriousness and that regard should have been had to the decisions of this Court in R v Hamid (2006) 164 A Crim R 179 at 191-196 and Hiron v R [2007] NSWCCA 336 at [32], where emphasis was given to the importance of general and personal deterrence and denunciation in cases of domestic violence which inherently involve breaches of trust and vulnerability of victims.
The Crown submitted that the repeated episodes of violence committed by the Respondent, shortly after being released to parole, constituted a serious aggravating feature which required the imposition of a deterrent sentence. An offender who takes advantage of his liberty on parole to commit further crime should not only suffer the revocation of his parole and the consequent need to serve out the balance of his original sentence, but should also suffer a significant punishment for the later offence to mark the gravity of his conduct in abusing his parole: R v Moffitt (1999) 20 NSWLR 114 at 128. Whilst her Honour acknowledged that the Respondent’s offences were committed on parole, the Crown submitted that the aggregate sentence imposed did not reflect this aggravating feature.
It was noted that the Respondent’s criminal history included several offences of violence and that, whilst her Honour acknowledged that his criminal history did not assist him, the Crown submitted that his prior convictions showed a continuing attitude of disobedience of the law so that more weight ought to have been given to considerations of personal deterrence and protection of the community than otherwise would have been the case: R v McNaughton (2006) 66 NSWLR 566 at 574-575.
The Crown submitted that the sentences imposed on Counts 1, 2 and 3 should not have been backdated to the date when the Respondent commenced to serve the balance of parole. The effect of backdating the sentences was that the sentences for Counts 1 and 2 were totally subsumed in the balance of parole period. In respect of Count 3, nearly eight months of the nine-month fixed term were absorbed within the balance of parole already served. In respect of Counts 4 and 5, approximately four-and-a-half months of the sentence imposed was made concurrent with the balance of parole.
As a result, the total time to be spent in custody for the sentences which were solely referable to the present offences was just over 12 months. The Crown acknowledged that the question of backdating of sentences to run concurrently with balance of parole is a discretionary matter for the sentencing judge: Callaghan v R (2006) 160 A Crim R 145. The Crown submitted, however, that her Honour’s discretion miscarried in this case.
The Crown submitted that the extent of concurrency directed by her Honour resulted in the effective sentences failing to address the objective seriousness of the crimes. It was submitted that, apart from Counts 4 and 5, each of the offences were committed on separate days and involved distinct criminality. As a result, there should have been significantly more accumulation of each of the sentences.
With respect to the influencing witness offence (Count 6), the Crown submitted that her Honour erred in the assessment of the objective seriousness of the offence by imposition of a non-custodial sentence in the form of a s.9 bond.
It was submitted that the offence of influencing a witness under s.323(a) Crimes Act 1900 strikes at the heart of the criminal justice system. The Respondent was seeking to dissuade the victim from continuing with the prosecution of serious offences and, for that purpose, sought to persuade her to provide a false statement to the effect that her allegations were not true. The Respondent was persistent in his attempts to have the victim withdraw her complaint and provided her with advice about the best way to go about this. He assured her that she would not be charged if she made a statement that she lied or, if she was charged, that she would receive a low penalty. The Respondent succeeded in his persuasion as the victim signed a statutory declaration stating that she wanted the charges to be withdrawn.
The Crown pointed to the cross-examination of the Respondent in the sentencing proceedings, to which reference has been made (at [37]-[38] above), as material demonstrating the objective gravity of the s.323(a) offence.
The Crown submitted that this evidence placed the Respondent’s s.323(a) offence in its proper context, and that this was not an offence that could be characterised as being towards the bottom end of the range. Her Honour’s finding to that effect was erroneous.
The Crown submitted that the s.9 bond for the assault on 24 March 2007 (Count 7) was manifestly inadequate. The commission of this offence was especially serious against the background of five previous domestic violence offences against the same victim. It was committed in prison and in the presence of the victim’s seven-year old daughter. It demonstrated the Respondent’s continuing disobedience to the law and his apparent lack of remorse for his previous offending at a time when the Respondent had not been using drugs for more than two months.
The Crown submitted that the offences involved serious violence in a domestic relationship and warranted condign punishment having regard to the need for both general and specific deterrence. It was submitted that this Court should allow the Crown appeal and resentence the Respondent.
Submissions of Respondent
Ms Francis, for the Respondent, submitted that the sentences imposed in the District Court were open in the exercise of discretion and that the Crown appeal ought be dismissed. It was submitted that the circumstances of this case were distinguishable from R v Hamid and Hiron v R. The Respondent submitted that it was open to her Honour, in the exercise of discretion, to make the sentences concurrent with the balance of parole. Further, it was submitted that the sentences passed upon the Respondent were staggered to reflect an additional level of punishment for each offence.
Ms Francis submitted that the imposition of sentences concurrent with the balance of parole would avoid double counting adverse to the Respondent, which would otherwise flow from the aggravating circumstance that the present offences were committed by the Offender while on parole.
It was submitted that her Honour adverted to the use of the knife in the detain for advantage offence (Count 5) and that this factor was clearly taken into account. The circumstances of this offence were not such that the sentence was manifestly inadequate.
With respect to the s.9 bond for Counts 6 and 7, Ms Francis submitted that her Honour fashioned a sentencing regime which had the effect of extending the Respondent’s conditional liberty by a significant period so as to give flexibility and the ability to impose a lengthy sentence, if the Respondent breached those bonds and was called up for sentence. It was submitted that the sentences were significant, and served as a means of emphasising the Respondent’s need for compliance when at conditional liberty given his long-term drug usage.
Ms Francis submitted that the Crown appeal was directed essentially to the weight which the learned sentencing judge attributed to various factors, and not the existence of legal error, and that the appeal ought be dismissed: R v Baker [2000] NSWCCA 85 at [11]ff.
Resolution of Competing Submissions
I am satisfied that the Crown has made good the submission that the sentences imposed upon the Respondent failed to reflect the objective seriousness of his offences and that the sentences imposed were so inadequate as to be plainly unjust. Further, specific error is demonstrated in her Honour’s approach to sentence on the s.323(a) offence. These matters go far beyond the question of weight to be given to various factors on sentence.
Specific Error in Sentence for s.323(a) Offence
I am satisfied that her Honour fell into specific error in having regard to the absence of threats in assessing the objective seriousness of the s.323(a) offence. The Respondent’s s.323(a) offence involved the commission of acts intended to persuade, induce or cause the victim, who was to be called as a witness in judicial proceedings against him, to give false evidence or withhold true evidence or to not attend as a witness. The maximum penalty for that offence is imprisonment for seven years. Section 322(a) provides for an offence of threatening to do or cause any injury or detriment to a person intending to influence the person, who is to be called as a witness, to give false evidence or withhold true evidence or to not attend as a witness. The maximum penalty for that offence is imprisonment for 10 years. Where sentence is passed for a public justice offence, care must be taken not to approach sentence as if a more serious offence had been charged: R v Mobbs [2005] NSWCCA 371 at [30]-[33]; Warby v R (2007) 171 A Crim R 575 at 580.
In my opinion, it was wrong, in assessing the objective criminality of the s.323(a) offence, to have regard to the absence of a feature which, if it were present, would constitute a different and more serious offence.
Features Demonstrating Manifest Inadequacy of Sentences
Several aspects of the sentences imposed in the District Court have led me to conclude that the sentences imposed were so inadequate as to be plainly unjust.
Firstly, I am satisfied that error has been demonstrated in the accumulation of the sentences passed. The backdating of sentences for Counts 1, 2 and 3, so that they operated concurrently with the balance of parole, was erroneous in the circumstances of this case. Her Honour observed that the only factor of which the Court was aware that resulted in parole revocation was the commission of the subject offences (ROS[5]). The Respondent was subject to a parole condition that he undertake counselling and rehabilitation for drug use. He was using illicit drugs and this was itself a breach of parole: R v Merrin (2007) 174 A Crim R 100 at 111-112 [48]. Although it appears that he was attending for drug counselling, this represented superficial compliance with his parole conditions at a time when he persisted in illegal drug use. Indeed, immediately after committing the detain for advantage offence on 18 January 2007 (Count 5), the Respondent departed for a drug counselling appointment as part of his parole (see [22] above). The juxtaposition of this serious crime and his purported compliance with parole points somewhat starkly to the ineffectiveness of non-custodial measures in his case at that time.
Although there was a discretion to make the sentences wholly or partly cumulative on the balance of parole (Callaghan v R at 149-150), I am satisfied that error has been demonstrated in this case. The Respondent’s breach of parole extended beyond his commission of these crimes of violence. He was using illicit drugs whilst maintaining a façade of compliance with his parole conditions. The approach adopted at first instance led to manifestly inadequate sentences for three separate and serious offences of violence. The sentences imposed meant that no effective sentence was passed for the offences in Counts 1 and 2 and virtually no sentence for Count 3. The sentences imposed on Counts 4 and 5 were also backdated wholly (Count 4) or substantially (Count 5) so as to run concurrently with the Respondent’s balance of parole.
Secondly, I am satisfied that a manifestly inadequate sentence was imposed for the detain for advantage offence (Count 5). I accept the Crown submission concerning the objective seriousness of this offence. The use of a knife was a serious statutory aggravating feature to which specific reference was not made. More importantly, the sentence actually passed for this offence did not reflect the objective gravity of the offence.
The gravamen of a s.86 offence, for the purpose of sentencing, is the unlawful detaining of a person: R v Newell [2004] NSWCCA 183 at [32]; R v Falls [2004] NSWCCA 335 at [42]. As in R v Hamid at 203 [131], I observe that this s.86 offence was committed in the context of the Respondent’s controlling and violent relationship with the victim. An assessment of the objective seriousness of the offence involved an examination of the immediate acts of the Respondent in the context of his violent control of the victim. The s.86 offence extended over some hours and involved actual threats of violence with weapons (a knife and a hair comb with a metal end) towards the victim. This was an objectively serious s.86 offence, a conclusion not reflected by the sentence imposed at first instance.
Thirdly, I accept the Crown submission that the use of s.9 bonds for the influencing witness offence (Count 6) and the assault offence on 24 March 2007 (Count 7) was manifestly inadequate. The s.323(a) offence was an objectively serious one. I am satisfied that the learned sentencing judge’s assessment of the objective seriousness of the s.323(a) offence (at [60]-[61] above) was clearly wrong. It was erroneous to characterise the offence as one occurring “in a domestic relationship, so statements of the type made were something that one would expect between a person who was incarcerated and his partner”. Her Honour did not advert to the Respondent’s pressure which envisaged that the victim may herself be charged with a criminal offence as part of the process of extricating the Respondent from his custodial predicament. In any event, the “domestic relationship” between the victim and the Respondent existed only for two months before the Respondent was taken into custody, and was marked by repeated acts of violence towards the victim.
In R v Hamid at 192-193 [67]-[77], reference was made to judicial and other statements which emphasise the exercise of power and control over the victim in domestic violence offences. The offences which comprised Counts 1 to 5 demonstrated a grave course of conduct, involving the exercise of power, dominance and control by the Respondent over the victim in December 2006 and January 2007. The fact that offences (or at least some of them) were committed whilst the Respondent was affected by drugs does not assist him on sentence. The commission of offences whilst using illicit drugs, in breach of parole, represents an aggravating factor on sentence: R v Merrin at 111-112 [48].
After the Respondent was taken into custody, he committed the s.323(a) offence over a period of time in February 2007. Once again, this offence reflects the exercise of power or control by the Respondent over the victim. Although the Respondent rejected the suggestion in cross-examination that he was “emotionally blackmailing” the victim to try and get her to drop the charges (T10.7), I am satisfied that this characterisation was accurate.
The Respondent’s efforts in this regard disclosed a level of planning, following consultation with other inmates, and a persistence over a period of time. It extended to the suggestion that the victim should say that she had made a false statement with the potential consequence that she herself would be charged with a criminal offence. It is difficult to see how the Respondent’s past drug usage played any part to mitigate penalty for this offence.
The victim made statutory declarations seeking to withdraw the charges against the Respondent although not recanting her allegations. The prosecutions continued and the Respondent ultimately pleaded guilty. Even then, the victim provided a measure of support to the Respondent at the sentencing hearing.
The essence of a s.323(a) offence is that it strikes at the integrity of the system of justice and some form of custodial sentence is normally appropriate: Warby v R at 580 [25]. The sentence imposed here for the s.323(a) offence diluted significantly, and erroneously, the objective criminality revealed in this case. The objective seriousness of the offence required imposition of a full-time custodial sentence. The use of a s.9 bond was erroneous. I have not overlooked the Respondent’s submission that breach of a s.9 bond would permit the Respondent to be called up for sentence at a later time. The circumstances in this case, however, required the imposition of a full-time custodial sentence.
The victim’s attitude towards sentencing of the Respondent ought to have played no part on sentence. Decisions of this Court in R v Glen (19 December 1994, unreported, BC9403423); R v Palu (2002) 134 A Crim R 174 at 183-184 [37] and R v Newman and Simpson [2004] NSWCCA 102 at [79]-[87] support this conclusion. It appears that the learned sentencing judge attached little significance to the victim’s views (see [56] above).
As Howie J said in R v Palu (with the concurrence of Levine and Hidden JJ at 184 [37]), “a serious crime is a wrong committed against the community at large and the community is itself entitled to retribution”, and “matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim”.
In the present context, it is important to repeat the observations of Simpson J in R v Glen:
“In my opinion, exceptional caution should be exercised in the receipt, and the use, of evidence of that kind [forgiveness by the victim] in cases that fit within the general description of domestic violence offences, of which this case is one. It is a fact known to the courts and to the community that victims of domestic violence frequently, and clearly contrary to their own interests and welfare, forgive their attackers. It is said, and has been said so often and for so long as to be almost notorious, that it was this pattern of post offence forgiveness, accompanied by apparent remorse or contrition on the part of the offender, that prevented the prosecution of such offenders. In turn, it appeared that the victim of domestic violence was in a class different to the rest of the community insofar as the protection of the law was concerned. Domestic violence was not seen as a crime which attracted the sanction of the law in the same way or to the same extent as other crimes, whether or not of violence. The perpetrator of domestic violence was relatively safe to commit crimes with impunity, at least provided he or she (and, in the cases that have to date come before the courts, it has almost invariably been he) could attain the victim's forgiveness.
There are two main arguments of principle against the proposition that this Court should give any weight to the expressed wish of the victim in this case that the applicant not be incarcerated. The first concerns the importance, especially great in cases of domestic violence, given the history that I have alluded to, of general deterrence. This Court must send a signal to domestic violence offenders that, regardless of self interest denying forgiveness on the part of victims, those victims will nevertheless receive the full protection of the law, insofar as the courts are able to afford it to them. It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.
For too long the community in general and the agencies of law enforcement in particular, have turned their backs upon the helpless victims of domestic violence. Acceptance of the victim's word that he/she forgives the offender, casts too great a burden of responsibility upon one individual already in a vulnerable position. Neither the community, the law enforcement agencies, nor the courts can be permitted to abdicate their responsibility in this fashion. Protection of the particular victim in the particular case is a step towards protection of other victims in other cases.”

The statement of Simpson J in R v Glen is doubly important in this case. It emphasises the need for caution where a victim of a domestic violence offence expresses forgiveness and urges imposition of a lenient sentence for the offender. Further (and importantly), Simpson J’s statement supports the need for a significant element of general deterrence where a s.323(a) offence is committed by a domestic violence offender who seeks to dissuade criminally the victim from giving evidence in the proceedings.
Fourthly, the learned sentencing judge’s remarks on sentence made no reference to specific deterrence, general deterrence nor the need for denunciation of the Respondent’s conduct: R v Hamid and Hiron v R. The prosecutor in the District Court had provided a copy of Hiron v R to her Honour and had made reference to relevant sentencing principles during submissions.
In reality, very few subjective factors operated in the Respondent’s favour on sentence. His offences were objectively serious. A correct exercise of sentencing discretion required the Court to have express regard to the need for general and specific deterrence together with denunciation of the Respondent’s repeated domestic violence offences: Hiron v R at [32]. The omission of any reference to these factors supports a conclusion that they were not applied in this case. These were most important factors to be taken into account in the imposition of sentence on the Respondent. The use of a s.9 bond was, in my view, manifestly inadequate.
Fifthly, the commission of the last assault offence on 24 March 2007 (Count 7) was a significant and unusual feature. By the time of this offence, the Respondent had been in custody for more than two months. He said that he had not been using drugs in prison. His account that his past use of drugs could continue to affect his behaviour in prison some months later, presumably so as to contribute to this offence (see [51] above), was not supported by any medical evidence. The Crown submitted in the District Court that there was no expert evidence as to any causal relationship between the Respondent’s drug use and the offences in Counts 6 and 7 (T7, 13 December 2007). The Respondent bore the onus of establishing, on the balance of probabilities, the existence of facts or circumstances which may serve to mitigate penalty: R v Olbrich (1999) 199 CLR 270 at 280-281 [24]-[28].
Her Honour did not make a finding that the Respondent’s drug usage continued to affect him at the time of the assault offence on 24 March 2007. If such a finding was implicit in her Honour’s approach to sentence, then it is difficult to see how such a finding could be made. The Respondent’s evidence alone was not persuasive on this aspect. There was no expert evidence adduced by the Respondent at the sentencing hearing on this issue, nor any medical or other evidence concerning his behaviour and health generally whilst in prison in 2007.
In my view, the assault offence in Count 7 may be characterised as a further incident of control or dominance by the Respondent over the victim, this time in a prison setting. Verbal threats were accompanied by physical violence committed in the presence of the victim’s seven-year old daughter. Against the background of the Respondent’s offending with respect to the victim both outside and inside prison, the imposition of a s.9 bond for the assault offence in Count 7 was manifestly inadequate.
Discretionary Factors
The Crown has demonstrated patent error with respect to Count 6 and latent error in that the sentences generally failed to reflect the objective seriousness of the Respondent’s offences so as to be manifestly inadequate.
In the event that the Court found error, Ms Francis submitted that the appeal ought be dismissed upon discretionary grounds. In this respect, an affidavit of the Respondent affirmed on 21 April 2008 was read. In that affidavit, the Respondent stated that, after being sentenced, he was transferred to the Wellington Correctional Centre but, because of the Crown appeal, he was transferred back to Parklea Correctional Centre. As a result, the Respondent states that he is not able to access programmes or attend counselling with psychologists. He stated that, since January 2008, the Department of Corrective Services has refused to allow the victim’s children to visit. The Respondent stated that, if the victim is still supportive of him when he is released, he will attend counselling as recommended by his parole officer. The Respondent repeated his intention to remain drug free and expressed the view that, when he used drugs, he became irrational and violent.
The Crown appeal was brought without delay.
The Court should not dismiss the Crown appeal on discretionary grounds. The Respondent’s affidavit of 21 April 2008 points to practical restrictions upon available rehabilitative steps within custody and restrictions upon visits by the victim’s children to him in custody. These factors may be taken into account in imposition of sentence but, in my view, do not warrant the discretionary dismissal of the Crown appeal where it has been demonstrated that the sentences were so inadequate as to be plainly unjust.
Resentencing the Respondent
In resentencing the Respondent, I bear in mind that the sentences to be imposed as a consequence of a successful Crown appeal will generally be less than those which should have been imposed at first instance and will generally be towards the lower end of the available range of sentence: R v Wall at [70].
In my view, the objective criminality of the Respondent’s offences was of a high order. The Respondent’s conduct may be characterised, using the words of Wood CJ at CL in R v Edigarov (2001) 125 A Crim R 551 at 558 [41], as brutal, cowardly and inexcusable. The Respondent’s offences involved the exercise of control over the victim on a recurring basis and constituted a violation of trust by someone with whom the victim shared an intimate relationship.
I accept that the Respondent’s drug use played a part in the commission of the offences before he went into custody on 18 January 2007. However, the Respondent was not meant to be using drugs at all - not just because it was criminal to do so, but because he was subject to parole on conditions requiring good behaviour and undertaking counselling and rehabilitative treatment for drug abuse.
Despite his arrest and imprisonment on 18 January 2007 following the series of offences in December 2006 and January 2007, the Respondent persisted with criminal conduct towards the victim by way of the s.323(a) offence in February 2007 and a further offence of violence on 24 March 2007. I am not satisfied that the Respondent’s drug use played a part in the commission of Counts 6 and 7.
The repeated acts of abuse towards the victim over this period, in different ways, represent an additional and aggravating feature of this case. There is a strong need for both general and personal deterrence to be reflected on sentence, together with the requirement for powerful denunciation of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of the Respondent’s crimes is important: s.3A(g) Crimes (Sentencing Procedure) Act 1999. Although the Respondent did not commit domestic violence offences against several victims, his offending took different forms at different times against this victim, including a serious public justice offence. Several of his offences were committed in the presence of the victim’s children. This is a case which attracts, for different reasons, application of the principles expressed in R v Hamid at 195-196 [86] and Hiron v R at [32].
The Respondent’s prior convictions, in particular with respect to offences of violence, are pertinent to an assessment as to where, within the boundaries set by the objective circumstances of his offences, a sentence should lie by reference to his attitude of disobedience of the law and the giving of increased weight to retribution, personal deterrence and the protection of society: R v McNaughton at 574 [25]-[26].
The Crown did not challenge her Honour’s discount for the Respondent’s pleas of guilty for Counts 1 to 5 and 7 of “something in the range of perhaps 15% or a little higher”. In R v Knight [2007] NSWCCA 283 at [37]-[38], this Court was critical of the formulation of a discount as “something in the vicinity of 10%-15%” given the use of a “vague undefined range”. This observation in R v Knight applies here as well. For present purposes, I will utilise a precise 15% discount with respect to those counts. I will apply a 25% discount for the plea of guilty on Count 6.
Having regard to the Respondent’s criminal history, a most guarded assessment is appropriate with respect to his prospects of rehabilitation. Her Honour expressed caution in this regard, although accepting that the Respondent was genuine in his desire to rehabilitate himself. The fact that the Respondent breached his parole soon after release by using drugs and committing a series of offences of violence, whilst simultaneously undertaking counselling for drug rehabilitation, does not augur well for the future despite the Respondent’s subjective claims of being a changed man. The Respondent’s statements at the sentencing hearing as to his insight, and his appreciation of his criminal activity, must be weighed against the fact that he committed offences while on parole: R v Merrin at 112 [50].
It should be kept in mind that the Respondent’s relationship and period of cohabitation with the victim were of short duration and were marked by acts of violence committed against the victim.
Despite the subjective views of the victim expressed at the sentencing hearing, it is difficult to see an objective basis for the view that the Respondent was a good role model for her children and a reliable prospect for the future. To the extent that the Respondent’s post-release plan might envisage the prospect of a renewed relationship with the victim, it is apparent that great care, and the presence of significant safeguards, would be necessary if that prospect ever came to pass.
I have taken into account the Respondent’s affidavit affirmed on 21 April 2008. However, apart from his pleas of guilty (which must be viewed against the background of his earlier criminal efforts to terminate the prosecutions), the Respondent does not have a strong subjective case.
I have had regard to the principles of accumulation, concurrence and totality. In doing so, of course, I have kept in mind the restraint of the double jeopardy principle applicable to a successful Crown appeal. I have determined that the total effective sentence to be imposed upon the Respondent ought be one of imprisonment for four years and six months with a non-parole period of three years to date from 18 April 2007.
In reaching this conclusion, I have found special circumstances for the purpose of s.44 Crimes (Sentencing Procedure) Act 1999 by reference to the appropriateness of an extended period of supervision of the Respondent upon his release to parole.
There will be a substantially concurrent sentence for Count 1 and the Respondent’s balance of parole. Otherwise, there will be a level of accumulation to reflect the separate offences committed by the Respondent over a four-month period whilst subject to conditional liberty in the community and later whilst in prison.
As the assault offence on 24 March 2007 (Count 7) was an assault committed by the Respondent while he was a convicted inmate of a correctional centre (serving balance of parole), s.56 Crimes (Sentencing Procedure) Act 1999 applies. In imposing a sentence of imprisonment for this offence, I direct, for the purposes of s.56(3) of that Act, that the sentence be served partly concurrently and partly consecutively with other sentences of imprisonment.
I propose the following orders:
(1)Crown appeal allowed with respect to sentences imposed in the Wollongong District Court on 13 December 2007;
(2)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)Count 6 - imprisonment by way of a non-parole period of two years to commence on 18 December 2007 and to expire on 17 December 2009 with a balance of term of one year to commence on 18 December 2009 and to expire on 17 December 2010;
(g)Count 7 - imprisonment for a fixed term of 14 months to date from 18 August 2008 and expire on 17 October 2009.
The earliest date upon which the Respondent will be eligible for release on parole is 17 April 2010.

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LAST UPDATED:
20 June 2008