Ward v The The King

[2022] NSWCCA 290

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ward v R [2022] NSWCCA 290

Hearing dates:

16 November 2022

Date of orders:

21 December 2022

Decision date:

21 December 2022

Before:

Basten AJA at [1];
Harrison J at [2];
Fagan J at [3]

Decision:

(1) Grant leave to appeal against sentence.

(2) Allow the appeal.

(3) Quash the sentence imposed in the District Court on 7 May 2021 and in lieu thereof sentence the applicant to imprisonment for a term of 5 years and 6 months commencing on 20 August 2020 and expiring on 19 February 2026 with a non-parole period of 3 years and 3 months expiring on 19 November 2023. The earliest date upon which the applicant would be eligible for parole would be 19 November 2023.

Catchwords:

CRIME – sentence appeal – where the applicant pleaded guilty to one count of specially aggravated break and enter – whether error in considering the impact of the applicant’s mental health on his moral culpability – no error shown –manifest excess – consideration of comparable cases committed in a domestic setting – sentence plainly unjust – resentenced

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Harper v R [2017] NSWCCA 159

Hunter v R [2020] NSWCCA 285

Kelly v R [2007] NSWCCA 357

McDonald v R [2014] NSWCCA 127

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

R v Campbell [2014] NSWCCA 102

R v Cheh [2009] NSWCCA 134

R v Ford [2020] NSWCCA 99

R v Primmer [2020] NSWCCA 50

Category:

Principal judgment

Parties:

Braydin Ward (applicant)
Rex (respondent)

Representation:

Counsel:
S Fraser (applicant)
E Jones (respondent)

Solicitors:
McAneny Lawyers (applicant)
Director of Public Prosecutions (respondent)

File Number(s):

2020/183342

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

District Court Wollongong

Jurisdiction:

Criminal

Date of Decision:

7 May 2021

Before:

Acting Judge Delaney

File Number(s):

2020/183342

JUDGMENT

1. BASTEN AJA: I agree with Fagan J.

2. HARRISON J: I agree with Fagan J.

3. FAGAN J: Braydin Ward applies for leave to appeal against a sentence of imprisonment ordered by Delaney ADCJ in the District Court at Wollongong on 7 May 2021. The applicant pleaded guilty to one count of specially aggravated break, enter and commit serious indictable offence – contrary to s 112(3) of the Crimes Act 1900 (NSW). The offence was committed on 21 June 2020. The circumstance of special aggravation was that the applicant wounded the female occupant of the dwelling. The maximum penalty is 25 years and a standard non-parole period of 7 years is prescribed. After allowing a discount of 25% for the early plea of guilty his Honour imposed a sentence of 8 years with a non-parole period of 4 years and 9 months.

4. The sentencing judge took into account the following offences on a Form 1:

1. Intentionally damage property, on 21 June 2020 – contrary to s 195(1)(a) of the Crimes Act. Maximum penalty: 5 years.

2. Common assault, on 6 June 2020 – contrary to s 61 of the Crimes Act. Maximum penalty: 2 years.

3. Intimidation, on 27 May 2020 – contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Maximum penalty: 5 years and/or 50 penalty units.

5. The applicant seeks leave to appeal upon the following grounds:

1   The sentencing judge erred by failing to consider the impact the applicant’s mental health had on his moral culpability and the need for deterrence.

2   The sentence is manifestly excessive.

Relationship between the applicant and the victim

6. The following summary of events is taken in part from a Statement of Agreed Facts that was tendered in the sentence proceedings and in part from statements of facts in relation to earlier offences to which the applicant pleaded guilty. The applicant was just short of 24 years old at the date of the principal offence. Commencing in early 2018 he had been in a relationship with the female victim, who is one year younger. She had two children from a previous relationship. In about late June 2018 the applicant and the victim commenced to reside together at her home in Balgownie, about 5 km north of Wollongong.

7. After two or three weeks of cohabitation, on 15 July 2018 the applicant commenced an argument with the victim, became abusive and then damaged a heater and a television screen in the home. The victim reported this to police, the applicant was charged and he pleaded guilty to an offence of destroying or damaging property. He was fined and required to enter into a bond. On the application of police an Apprehended Violence Order (“AVO”) was made against him for the protection of the victim. The applicant ceased to reside with her and moved to his mother’s address at Dapto. For a subsequent breach of the bond the applicant was called up and placed under a Community Corrections Order for 12 months commencing on 21 December 2018.

8. In February 2019 the victim gave birth to a daughter, of whom the applicant is the father. On 3 March 2019 the applicant attended the victim’s home in Balgownie, apparently to visit their baby. The victim later told police that the applicant became alternately abusive and then apologetic towards her during the day. He took her mobile phone, threatened to snap it in half and threatened to “put her head through the fish tank”. When the argument escalated the victim was fearful and took shelter in the home of a neighbour. The applicant knocked on windows and doors of that property seeking entry. That is when the police were summoned. Upon their attendance they found the applicant present with “an aggressive demeanour”. He denied the victim’s allegations but admitted to police that he had argued with her. While police were talking to him the victim ran from the neighbour’s house into her own. For the contravention of the AVO and for stalking and intimidating, the applicant was placed under an intensive correction order for 12 months commencing 3 October 2019 and continuing to 2 October 2020. One condition of the order was that he be referred for psychological assessment and comply with any treatment plan proposed for him.

9. The victim gave birth to another child of the applicant, a son, on 28 March 2020. By that time she was residing in Berkeley, 10 km south Wollongong. The AVO remained in force and the victim endeavoured to end her relationship with the applicant, which he would not accept.

10. On 27 May 2020 the victim was at the home of the applicant’s mother, in Dapto, when the applicant became angry with her late in the evening and threatened that if she was not careful he would “kick [her] to the kerb”. That incident is the subject of offence (3) on the Form 1. It does not appear that the victim reported this to police until after commission of the principal offence on 21 June 2020.

11. On 6 June 2020 the applicant attended the victim’s residence, intoxicated with alcohol. He was abusive towards her during this visit, which was extended. After some time he punched an interior wall of the house, near to the baby, who was screaming. The applicant refused to leave when the victim requested him to do so. She ran from him with her mobile phone, intending to call the police, but the applicant pulled her to the floor by her shoulders, seized her wrists and pressed his forehead against hers, shouting “Shut up”. That assault is the subject of offence (2) in the Form 1. The applicant left the victim’s home about an hour and a half after the incident.

12. In each of the events of 27 May and 6 June 2020, after having threatened, abused and/or assaulted the victim, the applicant assured her of his love. The pattern of his conduct towards her was of alternating hostile outbursts and professions of love. Over about 10 days in mid-June, prior to the commission of the principal offence on 21 June, the applicant sent the victim numerous messages. She told him by text message and in a phone conversation on 20 June 2020 that the relationship was over. Notwithstanding that, he continued to message her and ignored her requests that she be left alone. As a strategy to discourage the applicant, during the late evening of 20 June 2020 the victim created a false Facebook account in the name Drew Hutchinson and caused messages to be sent on that account to the applicant telling him to leave the victim alone. She thought that the apparent intervention of another male might discourage him.

Facts of the principal offence

13. Late on the evening of 20 June 2020 the victim locked the doors and closed the windows of her house in Berkley. At about 1:00 am on 21 June she was attending to her baby in a bedroom when she was disturbed by a noise and found the applicant climbing in through her loungeroom window. He appeared to be intoxicated and demanded to know who Drew Hutchinson was. The victim said that she was the person using that name. The applicant seized her by the throat, threw her onto a lounge and forced her face into the cushioning, thereby restricting her breathing. The applicant laughed when the victim said that he was hurting her and that she feared he would kill her. He put the victim in a headlock in the crook of his elbow and pulled her neck in a manner that caused pain.

14. The applicant paused in this assault to say to the victim that he loved her. When she went to the kitchen for a drink he followed and stood over her, then picked up a steak knife and drew it across her neck without touching the skin. He put a towel over her face and pressed the knife against her neck, without cutting. The baby screamed in the bedroom and the victim went to him and picked him up. The applicant followed. He took up the victim’s phone, went through its contents and threatened that she was “going to get hurt bad”. The applicant then threw the phone down.

15. The victim was on the bed with the baby on her chest. The applicant punched her across the kneecap then pinned her down on the bed by climbing on top of her while she still held the baby. The applicant placed his hand over the victim’s nose and mouth temporarily preventing her from breathing. During this part of the struggle the applicant shattered the screen of a television with his fist, constituting offence (1) on the Form 1. When the victim was able to pull the applicant’s hand away from her face she shouted at him to stop and again expressed her fear that his actions would kill her. The applicant took hold of the victim’s head and smashed it into a metal bedpost about 10 times, causing a laceration and bleeding. The applicant then punched the victim repeatedly to the chest. He also punched her in the head and to her jaw.

16. The applicant forced the victim’s head into a gap between the bed frame and a wall and banged her head against the wall. From that point the victim pretended to be unconscious. The applicant placed the baby in a pram. He left the bedroom and returned to it more than once, over a period that is not made clear on the evidence. The victim continued to feign unconsciousness, including while the applicant checked her closely. When the applicant left the house at about 3:00 am he took the baby in the pram and he took the victim’s mobile phone.

17. The victim then ran to the house of a neighbour and the police were called. The whole ordeal had lasted about two hours. Having regard to the number of assaults described in the Statement of Agreed Facts it is evident that the applicant’s violence towards the victim was not continuous over two hours, although the whole period must have been very threatening and frightening for her. When ambulance officers attended they found the victim’s hair matted with blood from a scalp laceration that later required four sutures. The victim had cervical tenderness and bruising to her right side – at the neck, clavicle, shoulder, arm and chest. She also had a painful jaw, torn fingernails of the left-hand and a bite mark on her right hand. These injuries were confirmed upon detailed examination at the Wollongong Hospital. The applicant was arrested not far away, pushing the baby in a pram. He smelled strongly of alcohol. He denied any domestic incident and claimed that he had not seen or spoken to the victim on the preceding day or during the night. The baby was examined at the Hospital and was unharmed.

18. Features that made this offending objectively serious include, particularly, the vulnerability of the victim, the fact that the applicant remained present in her home, terrorising her, over a protracted period, the severity of the assaults perpetrated, the consequent injuries to the complainant and the fact that their infant child was present and that the complainant would necessarily have been in fear of losing the baby or of him being harmed. The offence was committed in breach of the AVO that had been issued for the protection of the victim and in breach of the Intensive Correction Order made in respect of the offence of 3 March 2019, as referred to at [8] above.

The applicant’s subjective case

19. The applicant’s background was presented to the sentencing judge primarily by way of a history taken from him by Mr Bradley Jones, psychologist. That history was accepted by his Honour “in general terms”. The applicant is the only child of his parents’ union however he has four half siblings, one older and three younger. His early family life was happy up to the age of 10 years but over the next four years it was marred by the violence of one of his mother’s partners, who was a heavy drinker and a user of illicit drugs. He beat the applicant’s mother and inflicted upon all of the children significant and arbitrary cruelty. The applicant’s mother has been loving and supportive of him throughout his life. In evidence before the sentencing judge she described the applicant’s childhood as “a rough trot”. The applicant had no reliable father figure until the age of 19, when his mother commenced a relationship with her present partner.

20. The applicant was diagnosed with Attention Deficit Hyperactive Disorder (“ADHD”) at the age of seven and was prescribed medication. He did not feel any adverse effect from the medication but his mother thought it changed him and she took him off it after about two months. She informed Mr Jones that she “does not believe ADHD exists as a condition”. The applicant’s behaviour at school was disruptive, consistently with him being affected by ADHD. Notwithstanding his mother’s scepticism, ADHD is a condition well recognised by medical and educational professionals. It is known to impede learning processes in at least some individuals, particularly if not addressed with either medication or special educational attention. The applicant was not a high achiever in his studies. He was expelled from high school for fighting at the beginning of year 9, at which time he would have been at most 16 years old. He secured employment in a series of unskilled positions over the subsequent 6-7 years until the commission of this offence.

21. The applicant commenced heavy consumption of alcohol from the age of 16. For the next two years he was drinking heavily on weekends. From when he turned 18 his habit was to consume 4-5 schooners of beer after work each day and 12-15 schooners, as well as spirits, on Thursday, Friday and Saturday nights. The applicant also used cannabis heavily at around the age of 15 to 16 years and cocaine approximately every two weeks from the age of 17. He commenced to use methylamphetamine from the age of 19.

22. The applicant’s criminal history, apart from domestic violence offences already mentioned, comprised convictions for driving with the prescribed concentration of alcohol (“PCA”) in January 2016 (at age 19), driving whilst disqualified in August 2018 (at age 22), a further PCA offence on 10 October 2018 for which he was imprisoned for one month in December 2018/January 2019, followed by a further offence of driving whilst disqualified in September 2019. That driving record has the hallmarks of a person abusing intoxicants in a persistent manner that was at once self-destructive and irresponsible towards other road users.

23. In the first half of 2020 the applicant was evidently in an emotional crisis concerning his broken relationship with the victim. He suspected her of being interested in other men and he made accusations. His substance abuse reached extreme levels in this context, perhaps in reaction to his emotional turmoil but, inevitably, exacerbating his behavioural dysregulation. He told Mr Jones that his consumption of alcohol rose to 20-30 cans of bourbon and coke daily in the three weeks before the offence. He also used cocaine and methylamphetamine in that period and he had very little sleep in the six days leading up to the incident. The applicant told Mr Jones that he inhaled approximately six or seven “lines” of cocaine and smoked approximately 3½ g of methylamphetamine on the night of 20 June, to help him stay awake. He has ceased all use of intoxicants in custody, during his remand from 21 June 2020.

24. Mr Jones assessed the applicant 10 months after the offence, when he had been free of substance abuse for that period. The applicant exhibited clinically severe levels of depression, in various symptoms, consistent with his history. In July 2015 at the age of 19 the applicant was scheduled to Shellharbour Hospital after he had self-harmed, in an acute emotional reaction to the breakdown of a previous relationship. In August 2016, at the age of 20, the applicant overdosed on paracetamol in a state of severe depression and he was scheduled to Wollongong Hospital. In April 2019 the applicant’s general practitioner referred him to a psychology practice for treatment of substance abuse, anxiety and issues of aggression and anger. At that time the applicant had committed the offence of 3 March 2019, mentioned at [8] above, and was awaiting disposition of that charge. Thereafter the applicant attended consultations with a psychologist sporadically but did not adequately engage and had ceased altogether by September 2019. On 10 January 2020 the applicant was diagnosed by a doctor at the Illawarra Medical Service suffering anxiety, depression and “problems with anger management”. A mental health plan was prepared and he was referred to a psychology practice for ongoing treatment.

25. Mr Jones described this history as one of “behavioural dysregulation from the background of poor emotional functioning triggered by relationship breakdown”. He made the following observations:

[Mood] instability is an important comorbid problem associated with ADHD, which may exacerbate existing propensities for poor behavioural inhibition and result in offending and acting out behaviour. Additionally individuals diagnosed with ADHD report more trait and state anger, more problems with their tempers […] leading to hurting others and damaging property, and more negative, less controlled and socially skilled ways of expressing anger. Also ADHD adults engage in explosive, short-lived outbursts, experience transient loss of control, are easily provoked or constantly irritable, are impatient […].

26. Mr Jones diagnosed the applicant as suffering Alcohol Use, Amphetamine-type Substance Use and Cocaine Use Disorders and Adjustment Disorder with Depressed Mood. He assessed that the applicant posed a low/moderate risk of committing further offences and he prescribed a treatment plan to address the applicant’s “clinical and risk management factors […] designed to reduce his risk of recidivism”. The applicant’s mother is employed in aged health care. She informed the judge that she had good connections with mental health professionals and would arrange for continuing psychological support upon his release. In a Sentence Assessment Report, a Community Corrections Officer assessed the applicant at a medium-high risk of reoffending, taking into account that in the interview with the Officer the applicant did not frankly acknowledge the extent of his offending.

26. The sentencing judge quoted most of the passage from Mr Jones’ report that is set out at [25] above on the basis of which he said the following:

All of those matters, of course, are important to the question of whether or not he will be able to be ultimately rehabilitated and therefore not be likely to reoffend. In summary, again he is a person who requires help and has required help for a long time and for whatever reason has not had it, but will need it if he is ever able to reintegrate into society again in a reasonable way and be less likely to be a person who would commit criminal acts of [the] type committed here.

28. A written offer of work for the applicant was tendered to the sentencing judge. His mother gave evidence that she would have him reside with her and would support him.

29. His Honour concluded that specific deterrence was “high on the list of considerations in this case” because “the evidence from the [applicant’s] own statement indicates aspects of his life that could easily be reignited in the wrong set of circumstances”. The judge also recognised the need for general deterrence for a crime of this nature. His Honour found special circumstances warranting reduction of the ratio of the non-parole period to 60%. His Honour did not consider that the Form 1 offences had any impact on the appropriate level of sentence, although taken into account. The sentence was commenced from two months after his arrest. The first two months of remand were treated as solely referable to the applicant’s sentence upon revocation of the Intensive Correction Order for the offence of 3 March 2019.

Ground 1 – impact of mental health on moral culpability

30. In the sentence proceedings the applicant’s counsel expressly did not rely upon Mr Jones’ diagnoses of Substance Use and Adjustment Disorders as being causally linked to the commission of the offence. He nevertheless submitted that those diagnoses reduced the applicant’s moral culpability and warranted less emphasis on general and specific deterrence than otherwise might be appropriate. It was not at all clear from the submissions to the sentencing judge how or why the applicant’s moral culpability was reduced, bearing in mind that a clearly very significant cause of his emotional dysregulation, over several years, had been his heavy consumption of intoxicants for which he had not sought treatment or rehabilitation. The substance abuse that had become the pattern of his life escalated to an acute and massive level in the days and hours immediately preceding the commission of the offence.

31. The applicant now complains that the learned judge “did not refer to, let alone make a finding of, the impact of the applicant’s mental health on the determination of moral culpability” and “did not at any point address the submissions [that general and specific deterrence] should be moderated in light of the evidence of mental illness”. The applicant submits that because his Honour did not, in his remarks on sentence, refer in terms to the argument that had been made, the Court would “conclude that those considerations were not taken into account and that error has occurred”. I do not accept that submission. The remarks on sentence expressly refer to the ADHD that had been diagnosed in the applicant’s childhood, to Mr Jones’ diagnoses of depressive symptoms and Substance Use Disorders and to the very high levels of consumption of illicit drugs that were associated with the latter. It is clear that his Honour did not accept that those considerations reduced the applicant’s moral culpability to the point where the need for a deterrent sentence was lessened. It was not incumbent on the sentencing judge to spell out his rejection of the submission about reduced culpability any more explicitly than he did. Ground 1 should be rejected.

Ground 2 – manifestly excessive sentence

32. His Honour concluded that if the applicant was being sentenced after trial his head sentence should be 11 years. Application of the 25% discount would result in a head sentence of 8 years and 3 months, which the sentencing judge “rounded off” to 8 years. The non-parole period of 4 years and 9 months fixed by his Honour represents slightly under 60% of the full-term, giving effect to the finding of special circumstances.

33. Having regard to all features of the objective gravity of the offence and the applicant’s expressions of remorse and prospects of rehabilitation as found by his Honour, together with the applicant’s background and subjective circumstances generally, I consider that a head sentence after trial of 11 years would be plainly excessive and that the discounted 8 year head sentence is also plainly unjust. The sentence as a whole, including the length of the non-parole period, is manifestly excessive. As stated in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], a conclusion of manifest excess is only to be drawn if it is “plainly apparent” and, having been drawn, may “not admit of amplification”.

34. Domestic violence of this nature, against a vulnerable young mother who should be safe in her own home, particularly engages the sentencing purposes of general deterrence and denunciation: pars (b) and (f) of s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Adequate punishment and holding the offender accountable are also significant considerations: pars (a) and (e). Personal deterrence (par (b)) is a relevant purpose in this case because the applicant’s volatility and aggression towards the victim was shown to have escalated through their relationship, while he compounded his emotional dysregulation with drug abuse. All of those sentencing purposes would be amply addressed by a sentence very substantially shorter than that imposed by the sentencing judge, whilst also accommodating the important purpose of promoting the applicant’s rehabilitation (par (d)). The applicant is a young offender, not shown to be incorrigibly criminal but whose prospects of rehabilitation depend directly upon him addressing his drug problem. The sentence comprising a non-parole period of 4 years and 9 months, commencing from a few weeks before his 24^th birthday, is in my view crushing and likely to impede rehabilitation without being warranted to serve the purposes of sentencing in all the circumstances of the case.

35. In my view, a head sentence of no more than 5 years and 6 months is warranted, with a non-parole period of 3 years and 3 months reflecting the proportion adopted by the sentencing judge to give effect to his finding of special circumstances. I consider that special circumstances here include the need for a longer period on parole within which supervision by Community Corrections would facilitate rehabilitation.

36. The conclusion of manifest excess is supported by consideration of sentences passed in other cases. Because of the wide variety of circumstances in which an offence against s 112(3) may be committed, even within the subset of cases involving domestic violence, care is required to ensure that cases nominated for comparison are truly comparable in objective seriousness and in the subjective circumstances of the offender or, at least, that finite differences can be identified and allowed for.

37. R v Cheh [2009] NSWCCA 134 was an unsuccessful Crown appeal against inadequacy of sentence. The offender and the complainant had been in a relationship from which there was one child, aged 20 months at the time of the offence. The complainant had formed a new relationship and was residing with her current male partner. The offender broke into their home in the late evening, heavily affected by alcohol. He attacked the male partner, ordered him out of the house, followed him and pushed him to the ground. The offender then re-entered the house, threatened the complainant that he would kill her, dragged her from her bedroom to the kitchen, took up a steak knife and stabbed her twice in the chest, puncturing both lungs. He attempted to plunge the knife into the complainant’s throat but she deflected the blade with her hand, as a result of which she suffered a deep cut.

38. The offender was 33 years old. He had suffered long-term depression and had been abusing alcohol for several years. It was accepted that he was genuinely remorseful. The offence was committed while the offender was on a bond that had been imposed only one month earlier, for damage to the complainant’s property. He had pleaded guilty to the charge under s 112(3) in the Local Court but had disputed the facts, upon which the sentencing judge preferred the complainant’s version. He was allowed a 25% discount. The offender was sentenced in the District Court to a term of 5 years with a non-parole period of 3 years and 9 months. At first instance and on appeal the law as it was understood prior to the decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 was applied. That does not appear to have had a significance in the case that would invalidate comparison with the present appeal.

39. In declining to interfere, the Court made the following observations:

[32]   […] The circumstances of the offence were serious. The complainant suffered severe injury and must have been terrified. [The complainant’s partner] had also been put in fear. But for the applicant’s mental illness a longer sentence than was imposed would have been appropriate.

[33]   The evidence before the sentencing judge confirmed that the respondent committed his crime at a time when he was debilitated by psychiatric illness. He was abusing himself by excessive drinking and his life was generally falling apart. He was on the verge of suicide. […].

There are significant parallels between those facts and the circumstances of the present case, although here the applicant’s Adjustment Disorder with Depressed Mood had become manifest in his self-harming some years before the offence, while his continuing anxiety and depression had been recorded by the Illawarra Medical Service approximately five months before the offence.

40. Making due allowance for the fact that R v Cheh was a Crown appeal and was subject to the well understood inhibition on this Court intervening, the decision is a strong indication that the sentence in the present case is excessive. Significant inconsistency in the application of the law would result from permitting the sentence of the present applicant to stand. The duration of the applicant’s presence in the victim’s home was much longer in the case now before the Court than in R v Cheh but the violence in this case did not involve the use of a weapon to inflict life-threatening wounds, as occurred in R v Cheh. Subjective considerations are in most respects comparable between the two cases but, as a young offender, the applicant’s situation warrants greater moderation of sentence to facilitate rehabilitation than was the case in R v Cheh.

41. R v Campbell [2014] NSWCCA 102 was a successful Crown appeal. The offender broke into the rural home of his estranged wife while she was absent. He had retained a key to the gun safe in the house. He concealed himself in the house with a loaded .22 calibre rifle and when the victim returned home accompanied by a female friend he threatened the victim with the muzzle of the weapon against her forehead. The victim resisted and the weapon discharged during a struggle. The bullet struck the floor near to the victim. The offender wrestled with her on the floor, then lifted her onto a couch and landed on top of her, continuing to try to gain possession of the firearm. The victim suffered injury to a rib and bruising, for which a separate charge of assault occasioning actual bodily harm was laid. The offender was 35 years old and had a “relatively minor” criminal record. His history was “otherwise unremarkable”, without drug or alcohol abuse and with testimonials to good character. The offender’s three sons were in the care of the victim and it was accepted that he was motivated by concern for them, for which there was said to be some basis.

42. In this Court, by majority, the offender was re-sentenced to a term of 5 years with a non-parole period of 3 years, after allowing a 25% discount for an early plea. A sentence of 9 months for the assault occasioning actual bodily harm was partly accumulated, giving rise to an effective overall sentence of 5 years and 3 months. Features contributing to the objective seriousness of the offence included “considerable planning”, the “domestic violence context”, the use of a loaded firearm and the presence of another person in addition to the victim.

43. Hunter v R [2020] NSWCCA 285 was a severity appeal. The offender and the female victim were in a domestic relationship, although they lived at separate addresses. The offender attended at the female victim’s home and, hearing two voices from within, used an axe that he located on the property to smash glass panels of the front door. Through the opening the offender observed in the house a male friend of his, with whom he suspected the female victim was being unfaithful to him. The offender smashed his way into the house and attacked the other male with the axe, fracturing his forearm and one finger and inflicting a laceration that required sutures. The occasioning of actual bodily harm to the male victim was the serious indictable offence for the purposes of the count under s 112(3). The offender also dragged the female victim by her hair out of the bathroom, giving rise to a charge of common assault, which was taken into account on a Form 1. The offender was inside the premises for about 10-15 minutes.

44. The offender was 48 years old, was a user of illicit drugs and was diagnosed with a substance use disorder. He had a criminal record including acts of violence and drink-driving but nothing as serious as this offence. He was found unremorseful, in denial of his misuse of illicit substances and lacking in insight. After allowing a discount of 25% the offender was sentenced to 6 years imprisonment with a non-parole period of 4 years. This Court declined to interfere but found that the sentence imposed was “at the more severe end of the ‘range’ that the statistics appear to establish”.

45. The applicant’s counsel cited Kelly v R [2007] NSWCCA 357 in which the objective facts were similar to those of the present appeal and of R v Cheh. A sentence of 4 years with a non-parole period of 3 years was imposed at first instance, after discounting by 25%; a severity appeal was dismissed. The fact that this Court did not have to consider re-sentence makes that case of limited utility for comparison purposes but the sentence imposed at first instance in Kelly v R is, at least, consistent with my conclusion that the sentence under appeal of 8 years with a non-parole period of 4 years and 9 months is manifestly excessive. A number of other decisions of this Court were cited (McDonald v R [2014] NSWCCA 127; Harper v R [2017] NSWCCA 159; R v Primmer [2020] NSWCCA 50; R v Ford [2020] NSWCCA 99) but they are not usefully comparable because they involved multiple offenders and/or did not concern domestic disputes of the kind exemplified by this appeal.

Orders

46. In my view, ground 2 should be upheld, the appeal should be allowed and the applicant should be resentenced. As already stated, I accept that there are special circumstances warranting a departure from the statutory default ratio of the non-parole period to the head sentence. I would apply the same ratio as his Honour, 60%. I would adopt the commencement date for the sentence that his Honour used, to give effect to a degree of accumulation of this sentence upon the balance of parole that the applicant was required to serve under the earlier Intensive Correction Order. There was no contention against that course on the hearing of the appeal.

47. I propose the following orders:

1. Grant leave to appeal against sentence.

2. Allow the appeal.

3. Quash the sentence imposed in the District Court on 7 May 2021 and in lieu thereof sentence the applicant to imprisonment for a term of 5 years and 6 months commencing on 20 August 2020 and expiring on 19 February 2026 with a non-parole period of 3 years and 3 months expiring on 19 November 2023. The earliest date upon which the applicant would be eligible for parole would be 19 November 2023.

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Decision last updated: 21 December 2022