Cherry v R

Grounds of Appeal

1. By Notice of Appeal filed on 31 March 2017, the Applicant relies upon the following grounds of appeal: 1. Ground 1 - The learned sentencing Judge was in error in finding that the offence pursuant to s.112(2) Crimes Act 1900 was in the mid-range of objective seriousness. 2. Ground 2 - The sentence imposed accorded insufficient weight to the subjective features of the Applicant in respect of the issue of rehabilitation. 3. Ground 3 - The sentence was manifestly excessive in all the circumstances.

Facts of Offences

1. Statements of Agreed Facts were tendered at the sentencing hearing. What follows is drawn from those statements.
2. The Applicant was born in 1982 and was 31 years old at the time of the offences.
3. The Applicant and NR had been in a relationship since early 2013. As a result of an incident reported to police on 26 May 2013, police applied for and were granted an ADVO which was served on the Applicant on 19 June 2013. The ADVO required the Applicant, amongst other things, not to assault or intimidate NR. 16 October 2013 - Count 1 and Contravene ADVO Offence
4. On 16 October 2013, NR was staying at her mother's house in Newport where she had been for several days. The Applicant was allowed to stay there as well. Whilst in the garage, NR was approached by the Applicant who began questioning her about an earlier argument between them. During the argument, the Applicant took hold of a set of car keys, stretched out his arm and in a whipping motion brought the keys forward striking NR on the left biceps and left breast, causing her pain and stinging. The assault resulted in scratches to her bicep and a small bruise on her left breast. 16 October 2013 - First Assault on Form 1 and Contravene ADVO Offence
5. A short time later, NR and the Applicant went for a drive. They commenced to argue. NR was driving the vehicle. The Applicant reached towards her and took hold of her neck with his hand and forcefully pushed her head into the headrest of the driver's seat which caused her pain. NR could feel her airway being restricted. The Applicant held NR in that fashion for at least a couple of seconds. 17 October 2013 - Count 2 and Contravene ADVO Offence
6. On the afternoon of 17 October 2013, NR was at home with the Applicant and her mother. The Applicant was asleep when NR came in and told him that she was going to the shop to buy a SIM card for her phone. They began arguing and the Applicant said he would kill her and she said "You would not dare, my mummy's home".
7. The Applicant then leapt out of bed and approached NR who was leaning against the closed bedroom door. He hit her to the left side of the face with his open right hand. She responded by pushing against him with her hands. She opened the door and tried to leave, but the Applicant struck her to the left side of the face with an open hand. He then struck her a third time in the face as she left through the door. She felt pain to her face and could see blood dripping from her nose onto her feet and hands and she could taste blood in her mouth. Both NR and her mother told the Applicant to get out.
8. The Applicant left and the police arrived a short time later. Police took NR to the police station and photographed her injuries which showed redness to the left side of her face. 2 December 2013 - Count 4 and Second Assault on Form 1
9. On 1 December 2013, NR booked a room at the Glasgow Arms Hotel in Pyrmont. At about 1.00 am on 2 December 2013, she woke to hear her phone ringing. She answered the phone and it was the Applicant outside the hotel asking to be let into the room. She let him into the room. They had words at one stage which caused the Applicant to become angry, but they then went to sleep.
10. At 6.00 am, NR woke early and went out for a walk. About 7.00 am, she returned and was met by the Applicant on the stairs leading up to the accommodation. They began to argue. The Applicant demanded that NR come into the room, but she refused because of his angry demeanour. He continued his demands, but she still refused. The Applicant then moved towards her and grabbed her, pulled her down and pinned her to the ground and began slapping and pinching her and pulling her hair, forcing her into the hotel room (second assault on Form 1).
11. Once inside the room, the Applicant threw NR on the bed with her face down. He then placed one arm around her neck and the other over her mouth, effectively blocking her from breathing. He squeezed her throat using his arm and clamped down on her mouth using his hands. This cut off her ability to breathe and she was being asphyxiated. NR tried to fight the Applicant off, but was unable to do so. She felt she was on the verge of becoming unconscious.
12. Eventually after a struggle, she was able to free herself and get her breath. The Applicant then grabbed NR around her neck again and began squeezing her throat. She fought back and grabbed his hair which caused him to lose his grip. She was able to break free from him and grab hold of the door, leaving the room and entering the corridor.
13. The Applicant followed her. A bystander intervened and the Applicant returned to the room and locked the door. The Applicant eventually came out of the room with some of NR's possessions. She noticed that she had urinated on her clothes in the course of the assault.
14. The Applicant left the hotel with NR's iPhone, clothes, some money and some personal belongings. The bystander called police, but by the time they arrived, NR had also left. 3 December 2013 - Third Assault on Form 1
15. On 2 December 2013, the Applicant and NR booked into another hotel at Pyrmont.
16. On the morning of 3 December 2013, NR was downstairs when the Applicant called and asked her to come up to the hotel room. She was reluctant to do so, but went up and stood in the hallway outside the room.
17. The Applicant walked out of the room and grabbed her, putting his hand on her mouth again. She fought back and managed to break free, resulting in her falling down a small set of stairs whilst screaming for help. Some bystanders came to her aid and the Applicant left the hotel. 10 December 2013 - Fourth Assault on Form 1
18. On 9 December 2013, the Applicant and NR had rented a room at another hotel at Pyrmont. At about midnight, the Applicant was smoking "Ice" from a glass pipe. He was sitting on the bed and NR was sitting in a chair. When the glass pipe was still hot, the Applicant tapped it on NR's left forearm, hurting her and leaving a mark that was later seen and photographed by police.
19. On the afternoon of 11 December 2013, police attended other premises in Pyrmont after receiving information that the Applicant was at the location. A short time later, police found the Applicant hiding in a vacant block next door to the premises. He was located with the assistance of a police dog. The Applicant was arrested and cautioned. NR was then contacted by police and she attended the Sydney City Police Station later that day and made a statement. The Applicant declined to be interviewed or make a statement in relation to these matters. 28 October 2013 - Count 3 - Offence Under s.112(2) Crimes Act 1900
20. The facts surrounding the s.112(2) offence involve a different victim. The victim in this offence, DD, was a friend of NR. As a result of DD's relationship with NR, the Applicant was known to her and he had visited her home on several occasions.
21. On 10 September 2013, DD was at home when she saw NR in her yard. She opened the door to NR and let her inside. She saw that NR was dressed poorly and her appearance seemed unkempt and dirty. NR stated she had troubles and was living in a storage unit. DD felt sorry for her and let her in to wash herself and to clean herself up. After NR had showered, DD attempted to persuade her to leave. DD went upstairs to get some clothing for NR. When she came downstairs, she found NR in the downstairs office of the home. NR took the clothing from DD and left. Later that day, DD discovered that $700.00 was missing from a desk drawer of the downstairs office. In the following days, DD told several mutual friends, including NR's ex-husband, that NR had stolen money from her and the allegation of stealing got back to NR.
22. On 28 October 2013, DD was at home on her own. She had recently had surgery on her foot. She was unable to walk without crutches and was severely disabled after the operation.
23. About 1.20 pm that day, DD heard an older model car in the street. She saw a man walking towards her home and she realised it was the Applicant. Without DD's permission, the Applicant made several attempts to get into the home by pulling on sliding doors in the lower level of the building. DD made her presence known to the Applicant from the second storey of the building. When he realised she was at home, the Applicant began to bang on the door in order to get in. Whilst this was happening, the Applicant and DD had a brief conversation about the allegation that NR had stolen money from her.
24. The Applicant continued his attempt to open the doors and began to bang on the sliding doors. DD heard a glass sliding door open and she heard the Applicant say "Well isn't that convenient" as he came into the house. Upon hearing this comment and movement downstairs, DD called "000" from her mobile phone. She remained in her bedroom in a frightened state due to her disabled foot and her inability to escape.
25. The Applicant went up the stairs and rushed at her. She was unable to run or defend herself because of her injured foot. DD and the Applicant struggled. She screamed as loudly as she could. The Applicant grabbed the phone from her hand and ran out of the house whilst she continued to scream. The "000" call that she had made had connected to the operator, but the operator could only hear the sound of a female voice yelling.
26. A short while later, DD heard the same car accelerate down the street and she then called "000" from her home phone and spoke with the operator. Later her stolen phone was detected at Pyrmont.
27. The Applicant was charged with this offence following his arrest in December 2013.

The Applicant's Subjective Circumstances

1. As mentioned, the Applicant was 31 years old at the time of the offences. He was almost 34 years of age at the time of sentence.
2. The Applicant had a criminal history including common assault (dealt with in the Children's Court in 1998), having custody of a knife in a public place (offences in 2007 and 2011) and contravening an ADVO (in September 2013). The Applicant has a number of convictions for possession of a prohibited drug (offences in 1998, 1999, 2002 and 2011). A range of sentencing orders had been utilised with respect to the Applicant including conditional liberty involving probation supervision and a requirement to obtain drug and alcohol counselling.
3. The contravene ADVO offences committed in September 2013 related to breaches of the order intended to protect NR.
4. After the Applicant had been arrested and charged with the present offences, he committed offences in March 2015 of stealing from a person, common assault and three offences of contravening an ADVO in relation to which he was sentenced to terms of imprisonment. For one of the offences of contravene ADVO, a sentence of 12 months' imprisonment was imposed with a non-parole period of six months. The victim in each of these common assault and contravene ADVO offences was NR.
5. A presentence report was provided to the sentencing Judge together with a report of Mr Chafic Awit, psychologist, dated 3 December 2015 and references from the Applicant's sister, mother, brother-in-law and other persons who had known the Applicant.
6. The Applicant gave evidence at the sentencing hearing.

Some Findings of the Sentencing Judge

1. Her Honour made the following findings with respect to the objective seriousness of the offences committed against NR (ROS5-6): "In assessing the objective seriousness of the offences, the first offence of the striking with the keys, in terms of assault occasioning actual bodily harm offences, is at the lower end of injuries which can occur, although it seems to involve casual cruelty. The next offence of assault occasioning actual bodily harm which involved slapping to the face three times, causing bleeding to her nose, is a more serious assault occasioning actual bodily harm offence, causing the bleeding, not at the most serious end of those offences, but not a minor offence of its kind. The third offence of cutting off [NR's] ability to breathe by putting his arm around her throat which went on for some time is a quite serious offence of that kind. All of the offences were committed while Mr Cherry was on bail for an offence of assaulting [NR] and breaching an apprehended violence order for her protection. All were breaches of apprehended violence orders made by the Court for her protection. Those factors aggravate the offences. Mr Cherry gave evidence that the relationship was volatile due to his and [NR's] drug use. He cannot excuse abusing his power in the relationship by acts of violence because [NR] was using drugs, and her drug use does not mitigate his offences. The offences in combination are a serious course of conduct involving repeated violence against the same victim."
2. After summarising the facts of the offence committed against DD, her Honour expressed the following conclusions (ROS8-9): "The phone taken is of small monetary value but the importance of taking the phone is that [DD] was trying to call the police because of her fear of Mr Cherry's behaviour, he having come into her home uninvited, and so taking away the phone when she was trying to call for help from the police was serious. Mr Cherry gave evidence that he went to [DD's] home to sort out the problem caused by her telling people [NR] had stolen money from her. He said [NR's] ex-husband had been told that and would not let [NR] see her children because of that allegation. It was clear to him from [DD's] behaviour that she was not inviting him into the home. By breaking into the house and frightening her, including by physical contact when she was hampered from moving and escaping by her injured foot, Mr Cherry committed a serious offence. It was not an appropriate way to resolve his grievance. Although he was known to [DD] - on his account they had been friends, he was not [a] stranger to her. It would have been no less frightening for her to have him break into her house and treat her as he did. I assess that offence as in mid range of seriousness for offences of its kind. Mr Cherry said his behaviour was unacceptable but his evidence did not sound like wholehearted remorse. There was an element of blaming [DD] for having told people [NR] had stolen money from her."
3. Her Honour observed that, in sentencing the Applicant for the domestic violence offences committed against NR, the role of the Court includes "vindicating the dignity of the victim and expressing the community's disapproval of such offences … [which] has been expressed loudly and clearly in the community in recent years" (ROS9).
4. Her Honour noted that the Applicant attributed his offending to his use of the drug "Ice" at the time of the offences and to a history of ADHD and depression (ROS9).
5. The sentencing Judge referred to the Applicant's family history whereby the Applicant's father had moved to the United States of America when the Applicant was 11 years of age with the Applicant thereafter being educated in various private boarding schools.
6. Her Honour had regard to the documentary evidence from members of the Applicant's family and the evidence of the Applicant himself, noting that it was "clear that at the age of 33 Mr Cherry needs to attend to his rehabilitation" and that "he has started on that path by his actions … and has the support of family and friends to help him" (ROS11).
7. The sentencing Judge foreshadowed a finding of special circumstances and made mention of the Applicant's prior criminal history (ROS11): "His need for rehabilitation under the supervision of Community Corrections staff is a special circumstance to warrant reducing the non-parole of his sentence slightly from the statutory ratio. The period otherwise that he will have under supervision on parole will I think be a sufficient period for him to attend to his rehabilitation. Mr Cherry has a prior criminal history which reflects his misuse of drugs and alcohol over the years. In the last year he has served custodial sentences of between three and 12 months duration for offences of assault and breaching apprehended violence orders. The victim being the same victim of the assault and breach AVO offences for sentence today."
8. A 15 per cent discount was allowed for the Applicant's pleas of guilty which had been entered ahead of a scheduled trial (ROS11).
9. In response to a submission that concurrent sentences should be imposed for the offences against NR, her Honour concluded that "would not be appropriate because there were separate and repeated offences of violence escalating in seriousness against the same victim" (ROS11).

Ground 1 - Challenge to the Finding of Objective Seriousness for the s.112(2) Offence (Count 3)

1. Mr Webb, counsel for the Applicant, submitted that the sentencing Judge had erred in the finding that Count 3 was in the mid-range of seriousness for offences of that kind (see [44] above).
2. The Crown submitted that it was well open to the sentencing Judge to make such a finding in the circumstances of the case. Decision
3. This Court has observed that a very diverse range of offending may be accommodated within the terms of an aggravated offence under s.112(2) Crimes Act 1900: Marshall v R [2007] NSWCCA 24 at [35]; MM v R [2016] NSWCCA 235 at [114].
4. It is useful to set out the terms of s.112(1) and (2): "112 Breaking etc into any house etc and committing serious indictable offence (1) A person who: (a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or (b) being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building, is guilty of an offence and liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. …"
5. The term "circumstances of aggravation" is defined in s.105A which provides relevantly: "105A Definitions (1) In sections 106-115A: … circumstances of aggravation means circumstances involving any one or more of the following: (a) the alleged offender is armed with an offensive weapon, or instrument, (b) the alleged offender is in the company of another person or persons, (c) the alleged offender uses corporal violence on any person, (d) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person, (e) the alleged offender deprives any person of his or her liberty, (f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed. … (2) The matters referred to in: (a) paragraph (c), (d) or (e) of the definition of circumstances of aggravation, or … can occur immediately before, or at the time of, or immediately after any of the elements of the offence concerned occurred. (2A) For the purposes of paragraph (f) of the definition of circumstances of aggravation, if there was a person, or there were persons, in the place in relation to which an offence is alleged to have been committed at the time it was committed, the defendant is presumed to have known that fact unless the defendant satisfies the court that he or she had reasonable grounds for believing that there was no one in the place. (3) The definitions in subsection (1) are not mutually exclusive."
6. The Crown is entitled to rely on circumstances of aggravation other than those charged in the indictment: MM v R at [118].
7. In the present case, the pleaded circumstance of aggravation was that the Applicant knew that there was a person in the premises at the time of the offence. However, the serious indictable offence which the Applicant committed inside the house was robbery, a grave form of serious indictable offence which, if prosecuted separately, is punishable by imprisonment for 14 years under s.94 Crimes Act 1900.
8. The maximum penalty of 20 years' imprisonment and the standard non-parole period of five years for a s.112(2) offence were important yardsticks or guideposts created by the legislature for sentencing courts for this class of offence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at 132 [27], 133 [31].
9. In circumstances where the Applicant knew that DD was in the premises and that she was disabled because of her leg injury, and with the offence which he committed inside the premises involving the use of violence against DD which was intended to (and did) terrify her, it was well open to the sentencing Judge to find that the s.112(2) offence in this case was in the mid-range of objective seriousness.
10. I would reject the first ground of appeal.

Ground 2 - Claim that Insufficient Weight Given to the Issue of Rehabilitation

1. Counsel for the Applicant submitted that the sentencing Judge should have accorded greater weight to the evidence concerning the Applicant's efforts towards rehabilitation as disclosed in the evidence of himself and the documentary material emanating from members of his family.
2. The Crown submitted that the sentencing Judge gave attention to the evidence of the Applicant's rehabilitation and made appropriate allowance for it in the imposition of sentence. Decision
3. A threshold difficulty for the Applicant under this ground of appeal is the implicit acceptance in the ground that the sentencing Judge did give weight to evidence concerning his rehabilitation. Matters of weight are very much in the province of the sentencing Judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined: Vaiusu v R [2017] NSWCCA 71 at [29].
4. The sentencing Judge considered, in some detail, the evidence concerning the Applicant's subjective circumstances and his prospects of rehabilitation. Some aspects of her Honour's findings have been mentioned earlier (at [46]-[49]).
5. Her Honour noted that the Applicant's remorse seemed qualified by his attempts to blame the victim of the domestic violence offences and that there was an element of blaming DD as well so that a finding of "wholehearted remorse" could not be made.
6. Further, it was of importance that all offences were committed whilst the Applicant was subject to conditional liberty by way of bail and an ADVO. These features were of considerable importance as well in assessing his prospects of rehabilitation and other associated factors, including the need for specific deterrence.
7. The sentencing Judge had regard to the evidence with respect to the Applicant's prospects of rehabilitation and made findings which were both open to the Court and appropriate in all the circumstances.
8. I reject the second ground of appeal.

Ground 3 - Claim of Manifest Excess

1. Counsel for the Applicant submitted that the aggregate sentence was manifestly excessive in all the circumstances of the case. He submitted that the Applicant did not have a significant prior history for offences of violence and that the Applicant had a substantial subjective case which had not been given full and appropriate weight in the determination of the aggregate sentence.
2. The Crown submitted that this was a serious case of repeated domestic violence (in the case of the offences committed against NR) with an associated serious offence committed against DD as well. The offences were committed whilst the Applicant was subject to conditional liberty so that there was a significant requirement for specific deterrence and general deterrence in the circumstances of this case.
3. The Crown submitted that the aggregate sentence was open to the sentencing court and that the claim of manifest excess should be rejected. Decision
4. To succeed on this ground of appeal, it is necessary for the Applicant to demonstrate that the aggregate sentence was unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at 325-326 [6], 329 [22]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 538-539 [59].
5. The Applicant's offences against NR involved repeated offences of domestic violence committed against a young woman who was subject to a court order which was intended to protect her from the Applicant. The Applicant effectively ignored the ADVO and repeatedly assaulted his partner in the various ways described earlier in this judgment. The fact that these offences were committed in the context of a volatile relationship does not assist the Applicant. Regrettably, that scenario is not uncommon with domestic violence offences and the ADVO system is designed to offer protection to victims from further violence.
6. It is correct to characterise the Applicant's course of conduct towards NR as one involving escalating violence. His act of choking NR in Count 4 had the potential for very grave consequences. Although not applicable to the Applicant in this case, it is noteworthy that in the second reading speech in support of the Crimes Amendment (Strangulation) Act 2014, which amended s.37 Crimes Act 1900, the Attorney General, Mr Hazzard, observed that strangulation "is prevalent in domestic violence incidents" (Hansard, Legislative Assembly, 7 May 2014).
7. This Court said in R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302 at 195-196 [86]: "86 In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community 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 crimes of domestic violence is important."
8. The Court referred earlier in R v Hamid (at 191-194 [65]-[80]) to other features of domestic violence offences including the exercise of control over the victim involved in what is usually recurrent criminal conduct.
9. In R v Kilic (2016) 91 ALJR 131; [2016] HCA 48, the High Court observed at 137 [21] that current sentencing practices for "offences involving domestic violence [may] depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations". It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community.
10. In the context of domestic violence offences, the High Court has observed that it is a longstanding obligation of the State to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence: Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 620 [54].
11. All of the offences committed by the Applicant against NR were in breach of an ADVO which had been put in place to protect her from the Applicant. These were not offences committed in breach of conditional liberty simpliciter. They were in breach of a form of conditional liberty designed to protect the same victim from further attacks by the Applicant. The repeated commission of domestic violence offences in breach of an ADVO attracted a need for specific deterrence, general deterrence and denunciation in this case: Browning v R [2015] NSWCCA 147 at [4]-[9].
12. The fact that the Applicant had become a regular user of "Ice" was a relevant factor on sentence, but was not of itself a mitigating circumstance: R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at 381-386 [171]-[208]. To the extent that it could be said that the Applicant was in a state of self-induced intoxication as a result of his "Ice" use at the time of any of these offences, that factor does not operate to mitigate sentence: s.21A(5AA) Crimes (Sentencing Procedure) Act 1999; R v Fang (No. 4) [2017] NSWSC 323 at [72]-[73], [79]-[81].
13. Quite apart from the domestic violence offences committed against NR, there was the separate and serious offence committed against DD who was subjected to a terrifying experience at the hands of the Applicant when she was highly vulnerable.
14. Far from the aggregate sentence being manifestly excessive, in my view, it constituted a measured and balanced sentencing response to the Applicant's serious offences, with regard being had to his subjective circumstances and other relevant sentencing factors.
15. I would reject the third ground of appeal.

Conclusion

1. The Applicant has failed to make good any of his grounds of appeal.
2. I propose the following orders: 1. grant leave to appeal against sentence; 2. appeal dismissed.
3. HARRISON J: I agree with Johnson J.

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