Drew v R

Circumstances of the ADVO to which the applicant was subject at the time of the offence

1. The applicant was subject to an ADVO, naming the victim as the person in need of protection, at the time of the commission of this offence.
2. Transcript was provided to the sentencing judge of proceedings before Magistrate Heilpern at the Local Court at Grafton on 6 February 2013, some ten months prior to the commission of this offence. On that day, the victim was called as a witness in a prosecution of the applicant for reckless wounding, assault occasioning actual bodily harm and contravening an ADVO. The victim had recorded a Domestic Violence Evidence-in-Chief ("DVEC") with police on 16 November 2012 and had given a statement. She was also required to give her evidence-in-chief in court. [1]
3. In her statement to police, the victim stated that on 14 November 2002 she was drinking with the applicant when they had an argument. The applicant stood in front of her with a long piece of wood in both hands and said to her, "Do you want this cunt up ya." He then swung the wood and hit the victim in the back of the head, which knocked her to the ground. As a result, the victim received a carpet burn on her face near her right eye. She said that when she stood up she remembered a lot of yelling but could not recall what was being said.
4. The victim told police that the applicant then grabbed her from behind and pushed her back towards the kitchen. He grabbed a black handled steak knife from the kitchen sink and stabbed her in both legs. She said in her statement, "This hurt incredibly and I started bleeding." The applicant then said, "Try and run now cunt." He forced her into the bedroom, which he did not allow her to leave until the following day. She was later able to call police.
5. By the time of the hearing on 6 February 2013, the victim had resiled from the version she gave in her statement. She gave evidence-in-chief that she had stabbed herself and was suffering from psychosis at the time she reported the matter to police. The prosecutor sought and was granted leave to cross-examine the victim under s 38(1) of the Evidence Act 1995 (NSW). The DVEC recording was played in court and marked as an exhibit. A reading of the transcript of the proceedings suggests that the complaint was not displaying any symptoms of any psychosis at the time that she recorded her DVEC. Magistrate Heilpern was not able to be satisfied beyond reasonable doubt of the proof of the criminal offences and accordingly acquitted the applicant. His Honour did, however, grant a final ADVO for a period of two years. That was the ADVO that the applicant breached when he committed the subject offence.

Reasons of the sentencing judge

1. The sentencing judge recounted the facts and injuries suffered by the victim. She appropriately describe the applicant's offence as: "…a ferocious and prolonged attack with a large, sharp, pointed knife upon a complainant who only luckily survived because she ran for her life and fortunately found a means of escape."
2. Her Honour found that the applicant intended to inflict very serious injuries and that there was a complete absence of remorse. Her Honour then observed: "The offence was committed in the home of both the complainant and the accused and it is accepted that this was a violation of her expectation of safety and security. He had in addition hidden her handbag so she would be less likely to leave the premises to stay with a friend. Regard, in one sense, must be had to the importance that she would have placed on their relationship, their place in the Aboriginal community making it perhaps less likely that she would leave to seek outside help or indeed, complain. There is a well-known culture of silence and ostracism of those who do complain in relation to acts of violence within the Aboriginal community. In that sense, she is vulnerable though not in the usual sense, but that is an aggravating factor. In regard to the objective seriousness it is important to bear in mind the very serious injuries inflicted upon the complainant, that she suffered multiple injuries which necessitated emergency surgical intervention and a long period of recuperation. In all, it this offence falls into the worst category of offences for offences of its kind." [emphasis added]"
3. The sentencing judge referred to the applicant's extensive criminal record, which she described as "absolutely shocking". Her Honour observed that there were similarities in the offences, although none as serious as this matter. Her Honour stated that the applicant was not to be sentenced for those matters, but that those matters were relevant to the applicant's prospects of rehabilitation. She observed that the applicant was "very intoxicated" but found that the incident was "typical" of the applicant's behaviour, which was to act violently towards others when intoxicated.
4. As for the applicant's subjective circumstances, her Honour noted that they were: "…particularly marked by multiple disadvantages that arise as a result of the deprivation suffered by many Aboriginal offenders throughout their lives. These include being subjected to drugs, alcohol and violence for many years. All of these matters have had adverse impacts upon the offender's opportunities for education and employment. It must be taken into account that those circumstances of the impact that his upbringing in a community surrounded by alcohol, abuse, violence and deprivation does mitigate the sentence because such an offender's moral culpability is likely to be less than offender whose formative years have not been so affected. Nevertheless that feature cannot overwhelm the consideration of the objective seriousness of this particular offence."
5. Her Honour went on to observe that the applicant's disadvantaged background was "somewhat double-edged", noting that, against the mitigation of the applicant's culpability by reason of his disadvantage, there was a need to protect the community against the applicant's "inability to control violent responses to the frustrations that arise when he is released into the community". Her Honour referred to the decisions of the High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 ("Munda") and Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy") and concluded that: "Here protection of the community is a most important matter, particularly protection of this particular complainant, of women with whom this offender might have contact and with members of his family and other persons in his community."
6. Her Honour noted the "very late" plea of guilty and indicated that a discount of "a fraction just over 10%" would be afforded in respect of that plea. Her Honour declined to make a finding of special circumstances, observing that the parole period would allow more than adequate time for supervision of the applicant in the community. Taking into account the maximum penalty of 25 years' imprisonment and a SNPP of seven years, and the finding that the offence fell into the worst category of cases for offences of this type, the sentencing judge imposed a sentence of imprisonment for 12 years and six months, with a non-parole period of nine years and four months. Her Honour also imposed a wholly concurrent sentence of imprisonment for 12 months with respect to the charge of contravening the ADVO.

Grounds of appeal

1. The applicant lodged a Notice of Intention to Appeal on 28 August 2015, which was subsequently extended to 30 June 2016. A Notice of Appeal was filed on that date relying upon the following three grounds of appeal: 1. Ground 1: Her Honour the sentencing judge erred when she found that the offence was aggravated by reason of the fact that the victim was Aboriginal and thereby a vulnerable victim. 2. Ground 2: Her Honour the sentencing judge erred when she concluded that the offence fell into the "worst category" of offending for the offences of this type. 3. Ground 3: The sentence is manifestly excessive.
2. Mr Smith of counsel appeared on behalf of the applicant at the hearing of the application. He relied upon his written submissions in relation to Grounds 2 and 3 and focused his oral submissions on Ground 1.

Ground 1: Did her Honour err in finding that the offence was aggravated by reason of the fact that the victim was a vulnerable victim?

Submissions of the parties

1. This ground of appeal was based upon the observations by her Honour extracted at [61] above.
2. Mr Smith submitted that, although the categories of vulnerable victim to which s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the CSP Act") is directed are not closed, her Honour made a general assertion concerning members of the Aboriginal community that may or may not be accurate in the absence of any evidence that those characteristics necessarily apply to the victim. It was accepted that, even if the sentencing judge could permissibly take judicial notice of the fact that there is a "well-known culture of silence and ostracism" of persons who complain in relation to acts of violence within the Aboriginal community, the ambit of that of which her Honour could take such judicial notice is more problematic.
3. It was submitted that there was no evidence nor argument directed towards this feature being an aggravating factor in the course of the proceedings on sentence. It was submitted that her Honour was entitled to take into account the social dysfunction in traditional Aboriginal communities, but that that was a different issue. There was simply no evidence or discussion about the Aboriginal community in Grafton before her Honour, as opposed to a remote Aboriginal community.
4. It was acknowledged on behalf of the Crown that there was little evidence before the sentencing judge as to the characteristics of the victim in this case. The victim was clearly an Aboriginal woman and a member of the Aboriginal community in Grafton. The issue in dispute under Ground 1 is whether there was sufficient evidence for her Honour to make the finding that the victim was vulnerable because there was a well-known culture of silence and ostracism of those who complained within the Aboriginal community in Grafton.
5. The Crown relied upon the fact that courts have recognised at common law the vulnerability of women in Aboriginal communities in a number of decisions, including Munda and the decision of the Northern Territory Court of Criminal Appeal in The Queen v Bara [2006] NTCCA 17.
6. As to whether there was sufficient evidence before the sentencing judge regarding this particular victim's vulnerability, the Crown's response was threefold. First, it was submitted that s 21A(2)(l) operates on the basis of classes of vulnerable victims, rather than of vulnerable individuals. This means that it is sufficient to establish that the victim in this matter was a member of a particular class, rather than that she was personally vulnerable. Second, the Crown relied upon the fact that Wells SC DCJ is an experienced judge who is permanently based in the Lismore area. As such, she was entitled to draw upon her knowledge of Indigenous communities and in particular the experience of Indigenous women in the Grafton community, which was an area within her jurisdiction, when determining this issue. Third, there was evidence in this case that supported her Honour's inferences and findings; namely, the fact that the complainant had in the past been the subject of extreme violence about which she had resiled from giving evidence before Magistrate Heilpern.
7. The Crown's alternative submission was that, even if error were established in this regard, no lesser sentence was warranted at law. This offence was in the worst category of cases of this type. Further, there were few positive subjective factors. The applicant was subject to an ADVO at the time of the offence. The Crown relied upon the findings made by her Honour with respect to the need to protect the community from the applicant, the fact that this offence occurred in a domestic violence context and the lack of any remorse on the part of the applicant.

Consideration

1. Section 21A(2)(l) of the CSP Act provides that it is an aggravating factor to be taken into account when determining the appropriate sentence where: "(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant)."
2. Section 21A(2)(l) is concerned with particular classes of victims who require protection because members of that class are vulnerable to criminal offences. It is not concerned with the vulnerability of individual victims.
3. There was no dispute at the hearing of the appeal that the categories of vulnerable victims listed in s 21A(2)(l) are not exhaustive: Perrin v R [2006] NSWCCA 64 at [35]; Ollis v R [2011] NSWCCA 155 at [96]. It has been recognised that a victim may be "vulnerable" for the purposes of 21A(2)(l) in a variety of circumstances, including the following: 1. where the victim was a Japanese adolescent travelling alone on public transport: Ollis v R at [97]; 2. where the victim was a passenger in a taxi who was heavily intoxicated: R v Ali [2010] NSWCCA 35 at [39]; 3. where the victim lived in a rural and isolated location: Stevens v R [2007] NSWCCA 152 at [33]; 4. where the victim was a person travelling on a train who was to some degree isolated from other people on the train: R v Dyer [2006] NSWCCA 274 at [27] and R v Ibrahami [2005] NSWCCA 153 at [24]; 5. where the victim was "unwell and dry retching", so that he was less able to respond to an attack that he otherwise would have otherwise been: R v Morris [2007] NSWCCA 127 at [16]; and 6. where the victim was a prisoner confined in a cell after lockdown: R v Daley [2010] NSWCCA 223 at [39]
4. In R v Betts [2015] NSWCCA 39, this Court was considering the sentence of an offender who stabbed his partner in circumstances where the sentencing judge had characterised the victim as "vulnerable". RS Hulme AJ (with whom Meagher JA and Hidden J agreed) observed of s 21A(2)(l) at [29] and [30]: that: "The authorities make clear that sub-paragraph (l) is concerned with the weakness of a particular class of victim and not with the threat posed by a particular class of offender" and that "the examples set out in the sub-paragraph suggest that it is vulnerability of a particular kind that attracts its operation" and the fact that a victim does not have the characteristics of a powerful offender with violent tendencies does not make the victim vulnerable within the meaning of sub-paragraph (l) - see R v Williams [2005] NSWCCA 99 at [40], [41]; R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740 at [26], [27]. The paragraph looks to the circumstances of groups or classes of victims inherent in their situation or characteristics as such divorced from any actions of an offender. …While in one sense the complainant was vulnerable, that vulnerability arose because of the particular events of the day, not because of the characteristics of any group of which she was a member. Those events included that the applicant was able to prevent the victim from communicating with her family by taking her mobile phone and replying to text messages from her brother who was waiting downstairs. Accordingly, his Honour erred and this ground of appeal is made out." (citations omitted)
5. The current matter differs to that in R v Betts. The reason why the victim in R v Betts was not considered to be vulnerable was because the circumstances in which the victim was contended to be vulnerable (namely, her isolation) were created by the offender. They were not characteristics of the victim as a member of a class of persons. In contrast to R v Betts, the vulnerability found by the sentencing judge in the present case was said to be a characteristic of a class of persons of which the victim was a member; namely, Aboriginal women living in an Indigenous community.
6. There was ultimately no dispute at the hearing of the application that, as a matter of general principle, the word "vulnerable" in s 21A(2)(l) is capable of extending to a person who is vulnerable by virtue of being a member of a class of persons who are unable to complain about wrongful conduct because of a culture of silence and ostracism in their particular community. Where the parties joined issue in this matter was whether there was sufficient evidence before the sentencing judge to make that finding in this particular matter, in circumstances where it is accepted that there was neither any evidence led on the issue nor any submissions directed to it during the proceedings on sentence. The significance of the finding is that her Honour expressly found it to be an aggravating factor and as such it was a matter that the Crown was required to establish beyond reasonable doubt.
7. It is incumbent upon the Crown to establish any aggravating factor in s 21A(2) of the CSP Act beyond reasonable doubt. In R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 281, the High Court (Gleeson CJ, Gaudron, Hayne and Callinan JJ) held that a sentencing judge may not take facts into account in a way that is adverse to an offender unless those facts have been established beyond reasonable doubt. In so finding, the High Court adopted what was said in R v Storey [1998] 1 VR 359 at 369 by Winneke P, Brooking and Hayne JJA and Southwell AJA. This well-established sentencing principle was recently confirmed in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [24].
8. The only material tendered on the proceedings on sentence capable of being relevant to this issue was the evidence before her Honour showing that the victim had been unwilling to give evidence against the applicant on a previous occasion when he had allegedly stabbed her. That was a matter that made the victim vulnerable in her relationship with the applicant. It did not make her a member of vulnerable class of victims.
9. A question arose during the hearing of the application for leave to appeal as to whether the sentencing judge was entitled to take judicial notice of the under-reporting of domestic violence in Indigenous communities due to a culture of "silence and ostracism" and aggravate the offence on that basis. The question of whether a court may take judicial notice of disadvantage suffered by Aboriginal offenders generally, so as to mitigate their sentence, was considered and rejected by the High Court in Bugmy. The plurality, after considering the decision in Fernando v The Queen (1992) 76 A Crim R 58, observed at [41] (footnote omitted): "Mr Fernando was a resident of an Aboriginal community located near Walgett in far-western New South Wales. The propositions stated in his case are particularly directed to the circumstances of offenders living in Aboriginal communities. Aboriginal Australians who live in an urban environment do not lose their Aboriginal identity and they, too, may be subject to the grave social difficulties discussed in Fernando. Nonetheless, the appellant's submission that courts should take judicial notice of the systemic background of deprivation of Aboriginal offenders cannot be accepted. It, too, is antithetical to individualised justice. Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices, but to recognise this is to say nothing about a particular Aboriginal offender. In any case in which it is sought to rely on an offender's background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background."
10. Similiarly, I am satisfied that a court may not aggravate an offence by taking judicial notice of the fact that some Aboriginal women might be less likely to complain of domestic violence because of a culture of silence and ostracism in their communities. Whether or not the victim in each case is in such a class of vulnerable victims will always be a matter that must be proved beyond reasonable doubt based on the evidence in that case.
11. That is not to say that her Honour was not entitled to note both the high rates of domestic violence in Indigenous communities and the vulnerability of women and children in those communities. In The Queen v Bara at [18], in a passage relied upon by the Crown, the Court of Criminal Appeal in the Northern Territory observed: "Women and children in Aboriginal communities are particularly vulnerable to attacks by men in domestic situations. Such victims lack the support mechanisms that are available in many other sections of our community. These vulnerable victims are entitled to the protection of the law. This Court has repeatedly emphasised over many years that men in Aboriginal communities must recognise that attacks of this nature upon the more vulnerable members of the communities, particularly when dangerous weapons are used, will not be tolerated and will be met with severe punishment."
12. The high rate of violence in Indigenous communities was also noted by King J of the Supreme Court of Victoria in R v Hudson [2013] VSC 184. Her Honour was sentencing an Indigenous woman for the manslaughter of her abusive partner. Her Honour observed at [31]: "There are so many appalling stories within the indigenous community in Australia and it is hard to know where to start to do something about it. What is not to be doubted is that something must be done. We cannot let this continue as a society. We must stop this appalling violence being inflicted one upon the other by members of the indigenous community. Whilst there have been so many attempts to alleviate these problems, we have had, as a community, such limited success."
13. It is recorded in the Equality before the Law Bench Book, published by the Judicial Commission of NSW, that Aboriginal women are six times more likely to be victims of domestic and family violence than the average woman in New South Wales and to suffer more serious injury because of that violence. Indigenous men are about eight times more likely to commit assaults related to domestic violence than non-Indigenous men, and Indigenous women are ten times more likely to commit such assaults than non-Indigenous women. [2]
14. It is notorious that offences committed within the context of domestic violence are under-reported and that such under-reporting is not confined to Indigenous communities. As the Victorian Court of Appeal observed in Pasinis v R [2014] VSCA 97: "The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm."
15. High rates of non-disclosure by Indigenous victims of domestic violence have been attributed, among other things, to the potential for stigma and ostracism from family and community members. Indigenous victims may also, for historical and pragmatic reasons, fear contact with police and the courts or regard the authorities as unable to help them. [3]
16. The sentencing judge was entitled to have regard to the serious problem of domestic violence in Indigenous communities and the under-reporting of such violence. It provided context to her sentencing exercise and was relevant to the need for general deterrence and the protection of the community in sentencing for an offence of domestic violence committed upon an Aboriginal woman. The error established is that her Honour went on to find the offence aggravated for that reason, in the absence of evidence capable of establishing beyond reasonable doubt that this particular victim was a member of a particular class bearing those characteristics.
17. I have found that error has been established under Ground 1. It is therefore necessary for this Court to proceed to exercise its sentencing discretion afresh and re-sentence the applicant. I will nonetheless turn to consider Ground 2 as the finding it concerns is relevant to the exercise of this Court's re-sentencing of the applicant.

Ground 2: Was this offence in the "worst category" of offending for offences of this type?

Submissions of the parties

1. The applicant relied upon the fact that the sentencing judge imposed a sentence that was the third highest sentence imposed in respect of offences contrary to s 33(1) of the Crimes Act since the introduction of standard non-parole periods in 2003. The applicant accepted that this Court would be reluctant to disturb the assessment made by a sentencing judge of the seriousness of the offence: Mulato v R [2006] NSWCCA 282 at 37; Kennedy v R [2016] NSWCCA 123. Despite this, it was submitted that it was not open to her Honour to arrive at the finding of objective seriousness made in this matter.
2. It was submitted on behalf of the applicant that the extent of the injuries inflicted is of great significance when it comes to assessing the objective seriousness of the offence and that the injuries comprehended by the term "grievous bodily harm" extend to injuries that leave the victim permanently disabled or disfigured: R v Dacey [2014] NSWSC 1452 at [11]. There was no evidence of any permanent disability or disfigurement before the sentencing judge in this matter.
3. The applicant also submitted that the absence of premeditation was a relevant factor, although it was conceded that the significance of that factor decreases when there is opportunity for the offending conduct to cease which is not taken: AM v R [2012] NSWCCA 203 at 73.
4. Reliance was placed upon the principles derived from the decisions in Little v Regina [2010] NSWCCA 201 per Hall J at [31] and in Regina v Twala (NSWCCA, unreported, 4 November 1994). Applying those principles to the applicant's case, it was submitted that it could not be concluded to the requisite standard that the applicant had apprehended an assault of the severity that ultimately transpired and that, although it was true that the applicant had hidden the victim's bag, it cannot be inferred that he did so for the purpose connected with his later offending. It was submitted that neither of the threats at 6:30pm and 9:30pm could lead to a conclusion that the applicant contemplated the attack involving a knife that ultimately took place. While the offending conduct comprised over six separate stabbing actions at three locations, it was submitted that it could not be said that the offending occurred over an extensive period.
5. It was further submitted that, while it was conceded that "some of the individual stabbings were directed to particularly vulnerable parts of her body", the applicant's intoxication was such that it could not be inferred that he was consciously targeting those vulnerable areas.
6. The Crown relied upon the principles summarised in the recent decision of this Court in Kiernan v R [2016] NSWCCA 12 to establish that it was open to her Honour to make the finding that she did regarding the objective seriousness of the offence. The Crown further submitted that the applicant's contention that it could be inferred that the applicant voluntarily desisted from the attack could not be sustained and that no such finding was made by the sentencing judge.

Consideration

1. The determination of whether offending falls within the "worst case" category requires an evaluation of the particular features of the offence including any aggravating factors: De Jong v R; Tuimaualuga v R; Zechel v R: Puru v R [2015] NSWCCA 32 ar [55]. That evaluative assessment of the objective seriousness of an offence is only reviewable in this Court on the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40. As Simpson J (as her Honour then was) observed in Mulato v R at [46] (Spigelman CJ and Adams J agreeing): "The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."
2. This Court has recently considered the relevant authorities concerning the assessment of objective seriousness in cases involving wounding in Kiernan v R, a decision relied upon by the Crown. In that case, Hoeben CJ at CL (with whom Davies and Beech-Jones JJ agreed) observed at [41], referring to the decision of this Court in McCullough v R (2009) 194 A Crim R 429; [2009] NSWCCA 94 at [37], that: "While authorities such as McCullough v R make it clear that offences of this kind are result based, they also make it clear that the manner in which the wound was inflicted, the reason for its infliction and the circumstances surrounding the wounding are relevant when assessing the seriousness of the offence (McCullough v R at [37])."
3. His Honour went on to observe at [44] and [45] that: "Another relevant feature of the offending was the mode of the attack, which involved the production of the Stanley knife, the pulling back of the victim's head and the cutting of the throat in two motions. Even when the victim sought to defend himself, the attack was maintained leading to a further stabbing in the leg… That such matters are relevant to the seriousness of offences of this kind is clear from R v Westerman [2004] NSWCCA 161, R v Zhang [2004] NSWCCA 358; Matzick v R [2007] NSWCCA 92 and AM v R [2012] NSWCCA 203; 225 A Crim R 481."
4. It was further held in Kiernan v R (at [46]) that the location of the wounds inflicted may cause the injuries to be viewed as more serious; for example, a cut to the throat will be viewed as more serious than a cut to the leg. The decision in Dennis v R [2015] NSWCCA 61 at [31] was cited as authority for that proposition
5. The relevant finding by her Honour regarding the objective seriousness of the offence in this matter was that "…this is objectively an offence that falls well above the mid-range of objective seriousness and in the worst category of offences for one of its kind". It is to be inferred that her Honour meant that this offence was in the worst category for an assault of the kind before her Honour within the broad spectrum of offending covered by s 33 of the Crimes Act. A finding that a case falls within the worst category of cases for a statutory offence means that the starting point for the offence would be the statutory maximum penalty: Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46 at 451-452. Her Honour's starting point was well below the maximum penalty for this offence given that she only allowed a discount for the late plea of guilty as being "fractionally" over 10%.
6. The High Court recently considered whether the Victorian Court of Appeal had erred in holding that sentences imposed on the respondent charged with a serious assault on his girlfriend were manifestly excessive in The Queen v Kilic [2016] HCA 48. The Court (Bell, Gageler, Keane, Nettle and Gordon JJ) unanimously allowed the appeal, holding that the Court of Appeal had erred in holding that the difference between the sentence imposed by the sentencing judge for the principal offence of causing serious injury and sentences imposed in the other cases referred to by the Court of Appeal in their judgment meant that the sentence imposed on Mr Kilic was manifestly excessive.
7. Significantly for present purposes, the High Court considered the finding by the Court of Appeal in The Queen v Kilic that the principal offence was within "the worst category" of the offence of intentionally causing serious injury and observed the following at [18] - [20] (footnotes omitted): "[18] What is meant by an offence falling within the "worst category" of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the "worst category", it is beside the point that it may be possible to conceive of an even worse instance of the offence. Thus, an offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence. [19] Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty − as the offending was agreed to be here − a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the "spectrum" that extends from the least serious instances of the offence to the worst category, properly so called. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being "within the worst category". It is a practice which should be avoided. [20] There is also another reason to avoid use of the expression "the worst category" of an offence. Not infrequently where an offence does not warrant the maximum prescribed penalty, a sentencing judge may observe in the course of his or her sentencing remarks that, although the offence is a serious, or perhaps particularly serious, instance of the offence, it is not within the "worst category". To do so is not inaccurate and it may be thought a convenient form of legal shorthand. But lay persons are unlikely to be familiar with the legal signification of the expression and, as a result, might wrongly take it to mean that the judge has underestimated the seriousness or effects of the offence. In order to avoid difficulties of that kind, sentencing judges should avoid using the expression "worst category" and instead, in those cases where it is relevant to do so, state in full whether the offence is or is not so grave as to warrant the maximum prescribed penalty."
8. For the reasons explained by the High Court in The Queen v Kilic, the phrase "worst category" should be avoided unless the finding is one made in the context of imposing the maximum penalty available for that offence. Putting to one side the use of this phrase by the sentencing judge, I am otherwise satisfied that it was open to her Honour to make the finding of objective seriousness that her Honour did for the following reasons.
9. First, the victim suffered injuries to the colon, small bowel, liver, spleen, right kidney, chest, face, neck and upper arm as a result of being stabbed by the applicant. There was also a collection of blood in the abdominal cavity and around her lung. As her Honour found, the injuries sustained were to particularly vulnerable areas of the victim's body. The injuries were so serious the victim had to be airlifted to Sydney for treatment. Her condition became so critical on that flight that there had to be an emergency stop at Coffs Harbour for further surgery. The victim spent approximately three weeks in hospital.
10. Although there was no evidence before the Court that the injuries to the victim resulted in any permanent disability or disfigurement, it is not necessary for the injuries caused to the victim to be of the "worst type" for an offence to fall into the "worst case" category. The nature of the offender's conduct can bring a case within that category: R v Westerman [2004] NSWCCA 161 at [17]. It is to be noted that the sentencing judge found that the victim "…only luckily survived because she ran for her life and fortunately found the means of escape."
11. Second, although her Honour was not satisfied that there was any premeditation or planning to a significant degree, the attack was sustained and there were opportunities for the applicant to cease the attack that were not taken: AM v R at [73]. There was evidence that the applicant had threatened to harm the victim during a conversation with the neighbour a week prior to the offence and on a number of occasions on the night of the offence. The applicant said to the neighbour after the event that, "I finally got her." That material was contained in the agreed facts.
12. Third, the offence occurred in the context of a domestic relationship that had been marked by violence for some time. At the time of the offence, the applicant was subject to an ADVO put in place after the applicant attacked the victim with a piece of wood. I am satisfied that the commission of this offence in breach of that ADVO was in deliberate disregard of a court order intended to protect the victim and that this increases the objective seriousness of the offence.
13. Fourth, the attack was prolonged. The victim was repeatedly stabbed in the throat, arm and face as she begged the applicant to stop. She was able to flee, but the applicant caught up with her in the garage and once again stabbed her in the stomach. After the victim again attempted to escape by running down the street, the applicant inflicted a further stab wound to her stomach.
14. Fifth, the offence occurred in the victim's home. As Bathurst CJ (with whom Beazley P, Hall, Bellew JJ and I agreed) held in Jonson v R [2016] NSWCCA 286 (at [50]) s 21A(2)(eb) of the CSP Act is not limited to cases where the offender is an intruder into the home of the victim. Despite this, his Honour went on to observe at [52] that the fact that s 21A(2)(eb) is not so limited does not mean that in all cases the fact that the offence occurred in a home will be an aggravating factor. It is necessary for the Court to conclude that, having regard to ordinary sentencing principles, it actually aggravates the offence in question. In the present matter, the assault commenced in the victim's home. Although there is a degree of overlap with this factor and the fact that the offence occurred within a domestic relationship, it is nonetheless a relevant consideration in assessing the objective facts overall that the offence occurred in the victim's home.
15. Finally, although the applicant was heavily intoxicated at the time of the commission of this offence, the sentencing judge found by his words uttered both before and after the stabbings that he intended to inflict very serious injuries.
16. Taking into account each of these factors, I am satisfied that it was open to her Honour to classify the objective seriousness of the offence as her Honour did. No House v The King error has been established.
17. Ground 2 should be dismissed.

Ground 3: the sentence imposed was manifestly excessive

1. Error having been established in relation to Ground 1, the Court is required to independently exercise the sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. Therefore, it is unnecessary to address this ground.

Re-sentence

1. An affidavit affirmed by the applicant was filed in the event that this Court found error and was required to re-sentence the applicant. That material disclosed that the applicant has undertaken education courses while in custody and is on the waiting list for both an anger management course and a course designed for perpetrators of domestic violence. His diabetes has worsened since he was sentenced. His brother died recently and he could not attend the funeral. He has had no internal charges in custody.
2. He stated that being from the Stolen Generation has had a "huge impact" on him and that "...my childhood, my culture, traditions, connection to family and my identity have been taken."
3. The applicant expressed remorse for his actions stating, inter alia, "As an Aboriginal man committing a crime of violence on an Aboriginal woman, I do not think it is possible to feel more ashamed than I already do."
4. The expression of remorse in his affidavit is belated. The applicant did not give evidence before the sentencing judge and, as her Honour observed in her reasons, "There has never been an expression of remorse directed towards the complainant and the effect of all of his actions upon her, indicated to the Court." The only evidence touching on the question of remorse before her Honour was a statement by the applicant to his psychologist that he planned to remain single from now on "as he finds romantic relationships too stressful". I give this belated statement of remorse in his affidavit some little weight.
5. As for the evidence of his childhood deprivation, I take this into account in the same manner as the sentencing judge, as set out above at [63]-[64]. The material before this Court shows that the applicant suffered economic and social deprivation during childhood, both while residing with his family on an Aboriginal reserve up until the age of 14 years and then after being placed in a boys' home to learn a trade. He resided at the boys' home until he was 18 years of age, apart from the periods during which he escaped and went home. There is no doubt that the applicant's deprived childhood is a matter for the Court to take into account on sentence. Despite this, as Bell J observed in Munda at [134] (footnote omitted): "The "Fernando propositions" do not all favour mitigation of sentence. They contemplate the necessity to ensure that Aboriginal Australians are not deprived of the protection which it is assumed punishment provides and to avoid the perception that serious violence in Aboriginal communities will be treated by the law as a matter of little moment. The propositions have internal tensions which fall to be weighed by the sentencing judge along with all of the other factors that bear on the ultimate discretionary determination."
6. The balancing required when sentencing a person who has a disadvantaged background for a serious offence was recently considered in Hudson v R [2016] NSWCCA 30 where RA Hulme J (with whom Bathurst CJ and Hall J agreed) observed at [30]: "Bugmy v The Queen [2013] HCA 37; 249 CLR 571 is well-known for its discussion of the significance on sentence of an offender having emanated from a background of tragedy and deprivation. In the plurality judgment at [44] there is reference to the various purposes of punishment and the fact that a feature of a particular case might reduce an offender's moral culpability whilst at the same time increasing the emphasis to be given to protection of the community. In the present case the various unfortunate experiences and disadvantages in the applicant's past might serve to explain his entrenched abuse of alcohol and drugs. However, whilst in that way it might explain his frequent interaction with the criminal justice system, there was also a heightened need for personal deterrence and community protection. Further, it is important to bear in mind that whilst the applicant's experiences in early life might justifiably evoke sympathy, it was necessary for the sentence to be proportionate to the gravity of the crime: R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 572 [15] (Spigelman CJ)."
7. In exercising the sentencing discretion afresh, I accept the finding of the sentencing judge that this offence was well above mid-range and, to the extent that her Honour found it to be "in the worst category of offences of this type", I accept that it was a most serious breach of s 33(1) of the Crimes Act for the reasons expressed above at [98]-[114].
8. I have taken into account all of the subjective and objective features that have been set out in this judgment, including that, although his health was described as "good" before the sentencing judge, the applicant's diabetes has now worsened. He is entitled to a discount of just above 10% for his late plea of guilty.
9. The applicant is to be sentenced in relation to an offence that carries a maximum penalty of 25 years' imprisonment and an SNPP of seven years. The maximum penalty is the highest available after life imprisonment. This shows that the legislature views crimes of this nature very seriously.
10. As for the applicant's criminal history, I accept that it cannot be given such weight as to lead to the imposition of a sentence disproportionate to the gravity of this offence: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242. Despite this, in the present case the needs of specific deterrence and the protection of the community loom large. Even having regard to his background of social disadvantage, the fact remains that the applicant is a recidivist violent offender with convictions for matters of violence stretching over 35 years and committed against 13 separate victims. Three of those victims were the applicant's domestic partners at that time. One of the victims was the applicant's own son. Nine of the instances of violence involved the use of a weapon. As the High Court observed in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477, the applicant's prior record is relevant: "…to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."
11. The applicant's sentence for breaching the ADVO is not the subject of this application. He received a sentence of 12 months to be served wholly concurrently with the sentence for the offence contrary to s 33(1) of the Crimes Act. Furthermore, the sentence imposed for the s 33 offence was backdated to commence from 29 December 2013, which was the date when the applicant first went into custody. The applicant was sentenced on 7 April 2014 at the Local Court at Grafton to a term of imprisonment for 12 months, with a non-parole period of nine months, for an offence of driving with a high-range prescribed concentration of alcohol. The result of the backdating was that the high-range PCA offence was also served wholly concurrent with the sentence for the present offence. These are further relevant matters to consider in determining the appropriate sentence.
12. This was a very serious domestic violence offence. As this Court (per Johnson J, with whom Hunt AJA and Latham J agreed) observed in R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302 at [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."
13. Taking all of these matters into account, I am satisfied that no lesser sentence is warranted in law. Consistent with what Bathurst CJ observed in Abdulrahman v R [2016] NSWCCA 192 at [3] and [4], I do not propose to indicate what that sentence is. In the absence of a "Parker" warning being given to the applicant at the hearing of the appeal (see Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 290), it would not be consistent with practice and procedure on appeals to impose a higher sentence. Instead, and consistent with what the High Court said in Kentwell at [43], I make a finding that no lesser sentence is warranted at law and I would dismiss the appeal on that basis.

ORDER

1. I propose that leave to appeal the sentence be granted but that the appeal be dismissed.

Endnotes

1. The Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014 (NSW) came into force on 1 June 2015. It provides for the pre-recording of a complainant's evidence-in-chief in domestic violence matters, known as a DVEC. A DVEC allows police to record the statement of a domestic violence complainant audio-visually and to then use the recording as all or part of the victim's evidence-in-chief in subsequent proceedings. The legislation is to be found in Chapter 6, Part 4B of the Criminal Procedure Act. In circumstances where the complaint was made 18 months prior to the enactment of that legislation, it is to be inferred that the victim's evidence was recorded as part of a trial period of that practice.
2. Judicial Commission of NSW, Equality before the Law Bench Book (at Update 08, June 2014) 2105.
3. Australian Institute of Criminology, 'Non-disclosure of violence in Australian Indigenous communities' (2011) Trends and issues in crime and criminal justice, No. 405. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2016