NSW Court of Criminal Appeal finds error in the sentencing approach of a District Court Judge on the question of should a first time offender, in these circumstances, receive a sentence of imprisonment.
An extract from the judgment is below:
MARTIN, Alexandra Jane v R  NSWCCA 24
CRIMINAL LAW – appeal against severity of sentence – break and enter and commit serious indictable offence – assault occasioning actual bodily harm – guilty plea – first time offender – prior good character – unlikely to reoffend – youth – whether trial judge erred in assessment of facts – whether trial judge erred in assessment of level of criminality and objective seriousness – whether sentence of imprisonment manifestly excessive.
BEECH-JONES J: [Summary of facts and subjective features of the case…] I have already summarised the facts surrounding the offence which are reflected in the primary findings of fact made by the sentencing judge. I note the following six additional matters concerning the sentencing judgment.
First, the sentencing judge noted that the appellant was entitled to the full 25% discount by reason of her entering a plea of guilty at the earliest occasion (see R v Thomson; R v Houlton  NSWCCA 309; 49 NSWLR 383).
Second, his Honour found that the offence was aggravated by reason of the fact that it occurred in the victim’s home (see s 21A(2)(eb) of the Sentencing Act). There is no challenge to that conclusion.
Third, the sentencing judge was satisfied that the appellant was remorseful for her actions.
Fourth, the sentencing judge accepted that there was “very little likelihood of [the appellant] ever reoffending”.
Fifth, having regard to the references tendered on the appellant’s behalf the sentencing judge accepted that the offence was “very much out of character”.
Sixth, the sentencing judge accepted that the appellant’s actions were not premeditated.
Despite these matters, the sentencing judge imposed a full time custodial sentence. The sentencing judge referred to s 5 of the Sentencing Act and stated that he was “firmly of the opinion that no other sentence other than a sentence of custody is appropriate.” Next the sentencing judge determined the length of the sentence and considered that the “appropriate starting point” was twenty months, which was then reduced having regard to the appellant’s plea of guilty. Finally the sentencing judge considered that, given the circumstances of the offender, the nature of the injuries suffered, and the need for general deterrence it was not appropriate to suspend the sentence. However, his Honour also considered that a finding of special circumstances was appropriate having regard to the fact that it was the appellant’s first time in custody, and what the sentencing judge considered was the “need for some type of supervision”.
Grounds of appeal
Ground one of the appellant’s appeal contended that the sentencing judge erred in failing to have regard to what was said to be a mitigating factor, namely the domestic violence perpetrated upon the appellant on the evening of the offence by her then-boyfriend. This ground of appeal needs to be considered with ground two of the appeal which asserted that the sentencing judge had erred in concluding that the case warranted the significant application of considerations of general deterrence, because his Honour erred in his assessment of the facts.
I have already adverted to the findings of fact made by the sentencing judge which involved an acceptance of the appellant’s evidence as to the circumstances which led to her assaulting the victim. The sentencing judge stated:
“As will be obvious from my findings of fact I accept a good deal of what [the appellant] told me about the events that led her to be pounding on the victim’s door in the early hours of the morning of 10 December 2011. I am prepared to accept that [her former boyfriend] was aggressive towards her, although I note that police did not take any action against him save for separating the two of them. I accept that [the appellant] when she says that she felt very upset and angry when she saw [her former boyfriend’s] vehicle outside the victim’s home. I also accept she initially wanted to confront [her former boyfriend] rather than the victim.”
Despite these findings, when later considering the question of general deterrence the sentencing judge stated:
“I have no difficulty whatsoever accepting that there is that very significant issue of general deterrence. I have dealt with far too many matters in my time as a judicial officer both in this jurisdiction and another where people far too quickly resort to violence over some personal insult or slur.”
It was submitted this part of the sentencing judgment mischaracterised the circumstances of the offence. In particular, it was submitted that the reference to people being “too [quick] to resort to” violence over some “personal insult or slur” is an inaccurate description of what occurred.
I accept that submission. It was erroneous of his Honour to equate the circumstances of the offence committed by the appellant with some extreme response to a relatively minor personal insult or slur. The appellant was subjected to violence at the hands of her boyfriend and then confronted by his infidelity with her former friend. These circumstances represented a far more emotionally challenging situation than the sentencing judge was prepared to accept. Once it is accepted that this was an incident completely out of character then it follows that the characterisation of it as a “quick resort to violence” over a personal insult was wrong.
The balance of the submissions on this ground on behalf of the appellant referred to the event as having occurred in the context of a “history of emotional and physical abuse” of the appellant at the hands of her ex-boyfriend. The findings of the sentencing judge do not support such a characterisation of the history of the relationship and the evidence given by the appellant did not seek to place it in that context. Nevertheless, I am satisfied that grounds one and two are made out.
Ground three of the appeal asserts that his Honour erred in determining where, in the objective scale of criminality, this offence lay by reference to “‘routine’ matters that [came] before [the] Court”. This ground refers to the following passage in the sentencing judgment:
“I am of the opinion in all of the circumstances that this matter is in the range of being slightly below the halfway mark on the scale of seriousness of matters of this sort that routinely come before the criminal courts.”
It was submitted on behalf of the appellant that this approach was erroneous in that what is “routine” is said not to provide any relevant bench mark as to the appropriate penalty. This was said to be particularly so in a case such as this where the circumstances were “quite unusual” in that the appellant was 20 years old, had no criminal history, no tendency towards violence, and was said to be motivated, or at least affected, by having been physically abused by her partner.
Prior to the High Court’s decision in Muldrock v The Queen  HCA 39; 244 CLR 120, it was customary when imposing sentences for offences carrying a standard non-parole period to make some assessment as to where the particular offence stood in comparison with “the middle of the range of objective seriousness” as referred to in s 54A(2) of the Sentencing Act. Following the decision in Muldrock it is unclear whether such a classification is required, permitted, or prohibited (see R v Koloamatangi  NSWCCA 288 at  per Basten JA).
The offence committed by the appellant does not carry a standard non-parole period. In such cases an assessment of the objective criminality of the offence is appropriate. In R v Sivell  NSWCCA 286 at  Fullerton J (with whom McClellan CJ at CL and Schmidt J agreed) stated:
“….it is sufficient for a sentencing judge to make an assessment of objective criminality by reference to the maximum penalty, and to those other features of the particular offending that bear upon the gravity of the offence having regard to the circumstances of its commission, on a broad gradient of seriousness.”
Further, McClellan CJ at CL added (at ):
“Where a standard non parole period is not provided for an offence, the objective seriousness of the offence does not, of itself, direct attention to any particular type of punishment or term of imprisonment which must both be determined after all of the relevant matters, both objective and subjective, which inform the seriousness of the offence have been considered.”
In this case his Honour’s reference to “matters of this sort that routinely come before the criminal courts” suggests that the mischaracterisation of the circumstances upheld by grounds one and two affected this assessment. It is unlikely that his Honour had so many cases that were truly similar to the circumstances of this offence that they had become “routine”. Instead it is more likely that the reference to the circumstances of the offence as “routine” is attributable to his Honour’s misdescription of the offence as a quick resort to violence “over some personal insult or slur”. The true circumstances of this offence could not be characterised as “slightly below the halfway mark on the scale of objective seriousness”. I would uphold ground three of the appeal.
Ground four of the appeal argues that the sentence was manifestly excessive. I have already upheld the grounds of appeal which take issue with his Honour’s characterisation of the objective seriousness of the offence. In my view, it was not open to his Honour to characterise this offence as anything other than involving a low level of criminality for the types of offences contemplated by s 112(1)(a) of the Crimes Act. Insofar as the appellant had broken and entered into the victim’s premises it was an act which was neither premeditated nor motivated by opportunism, personal gain, or violent intent. Instead, it was the outcome of an out of character emotional response to having been mistreated by her ex-boyfriend earlier in the evening, coupled with learning that his vehicle was outside the victim’s home at 4.30am in the morning. The circumstances in which she came to assault the victim similarly involved an emotional response to a distressing experience. In stating that, it is clear that the victim did not provoke the appellant and is in no way to be taken as having contributed to the attack upon her. The circumstance of being assaulted in her own home would have been upsetting and clearly caused her significant pain and distress.
The combination of the circumstances of the offence, the findings of remorse and that the appellant’s conduct was out of character, coupled with the finding that there was very little likelihood that she would ever reoffend, meant that in this case it was not open to his Honour to be “satisfied” that “having considered all possible alternatives, that no penalty other than prison [was] appropriate” (s 5(1) of the Sentencing Act).
This is an unusual outcome in that offences involving a violation of a person’s home and the infliction of violence almost invariably attract a custodial sentence. Nevertheless the command in s 5(1) of the Sentencing Act is an extremely important protection designed to ensure that persons such as the appellant, ie young adults of good character, are not incarcerated with all the adverse consequences that can flow to them, their families and the wider community unless the objective circumstances of the offence truly require it. It follows that I would also uphold ground four of the appeal.
The consequence of finding error on the part of the sentencing judge was that the Court was required to undertake a resentencing of the appellant. To that end, evidence was read on the appeal from the appellant as to her circumstances since the time she was sentenced, along with an affidavit from her mother and her mother’s partner.
The appellant stated that after her release on bail she returned to her work as a barista. She later obtained casual work at a retail store and has since been offered a permanent casual position. Since her release on bail her alcohol consumption has been minimal and she has been receiving counselling. She stated that the result of being incarcerated was that she was unable to complete her TAFE course. She has discovered that, even if she were to resume it, it would be extremely difficult for her to find work in the community sector by reason of her criminal conviction. In the immediate future she plans to enrol in a beauty course at TAFE. The appellant stated that she found her time in gaol “very difficult and overwhelming” and that she felt “traumatised”.
The appellant’s mother described visiting her daughter in gaol on weekends. Her daughter has been living with her in Darlinghurst since her release on bail. She states that her daughter’s behaviour since her release has been exemplary. She notes that her daughter only rarely consumes alcohol and rarely socialises. She is concerned that her daughter seems depressed and listless and has difficulties sleeping most nights. The appellant’s mother’s evidence is supported by an affidavit from her partner.
This affidavit material serves to reinforce that which was apparent at the time of sentencing would be likely to occur if she were incarcerated. For the purpose of the re-sentencing exercise it reveals that the appellant has already suffered significant punishment and that she has been of good behaviour since being released on bail.
I was of the view, that if the sentencing exercise had been undertaken afresh as from 30 May 2012, the appropriate penalty would be to direct the appellant to enter a bond to be of good behaviour of 12 months, pursuant to s 9(1) of the Sentencing Act. However, given the period of time the appellant spent in custody and the fact that she has been of good behaviour from the time of her release on bail to the hearing of the appeal, I joined in the orders providing that the period of the bond be six months from 7 February 2013.