Dealing with the Appeal
23 Ground 1 of the appeal is that his Honour erred in that he did not have proper regard to the maximum penalty for assault occasioning actual bodily harm. The applicant's complaint is confined to counts 3a and 4a for which he was sentenced on each count to a total term of imprisonment of four years and six months. As the Judge stated that he allowed a 20 per cent discount for the utilitarian value of the pleas, the length of the sentences imposed bespeak error. The maximum penalty for an offence of assault occasioning actual bodily harm is five years imprisonment and the undiscounted starting point of each sentence if a twenty per cent discount was allowed must have been five years seven months (rounded down). The Judge in his sentencing remarks identified the statutory maximums for each of the offences and it may be that his Honour applied the utilitarian discount to the total sentence imposed for all seven counts. His Honour was, however, required to fix an appropriate sentence for each offence before considering whether the total sentence properly reflected the totality of the criminality. The Crown concedes that whatever way the Judge approached the application of the discount the result in respect of these two counts is an error.
24 Ground 2 of the appeal is that his Honour erred in not having proper regard to the principle outlined in Pearce v The Queen (1998) 194 CLR 610. Ground 3 is that the overall sentence imposed as accumulated is manifestly excessive. As these grounds are related, it is convenient to deal with them together.
25 The applicant submits that the principle of totality was not sufficiently reflected in the aggregate sentence which given the objective circumstances and the subjective case for the applicant is manifestly excessive. The principle of totality applies, the applicant points out, not only where a judge is sentencing for two or more offences but also when he is serving the balance of a sentence when his parole has been revoked.
26 His Honour was obliged to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. He was required to impose an overall aggregate sentence that fairly and justly reflects the totality of the criminality involved: see Pearce, R v Knight (2005) 155 A Crim R 252. The principle of totality also applies where a sentence is being served: see Mill v The Queen (1988) 166 CLR 59, Regina v Hajjo (Court of Criminal Appeal, 31 August 1992, unreported). At the time of sentence the applicant was serving the balance of a sentence following the revocation of his parole. The Judge was required to apply the principle of totality to the seven offences for which the applicant was to be sentenced and to the existing sentence being served.
27 His Honour's approach to the sentencing task indicates that he was mindful of the principle of totality. He expressly referred to the Crown prosecutor's submission that there had to be some degree of accumulation of sentence in line with Pearce and went on to remark:
"and of course bearing in mind the principal (sic) of totality".
(ROS at 7).
28 The Judge recognised that the applicant was serving the balance of parole and backdated the sentence for count 1a so that it commenced on 22 July 2006 although the sentence being served did not expire until 21 July 2007. He did so to avoid what he regarded as the consequence of double punishment as the applicant's parole had been revoked because of the offences for which he was to be sentenced. This was a matter within his Honour's discretion: Callaghan v The Queen (2006) 160 A Crim R 145 at [21] which was exercised favourably to the applicant. The Judge was not obliged to backdate the sentence to 3 October 2005.
29 His Honour made some sentences cumulative and others concurrent to arrive at the total sentence. Count 1a was made partially concurrent on the existing sentence, count 2 was cumulative on the preceding count, counts 3a and 4a were cumulative on count 2 but to be served concurrently with each other and counts 5, 6 and 7 were concurrent with counts 3a and 4a. The course adopted by the Judge was open to him and would have been consistent with the principles in Pearce if he had first fixed appropriate sentences for counts 3a and 4a. Indeed the concurrency of these sentences was generous to the applicant as counts 3a and 4a represented separate episodes of violence.
30 Applying to the total effective head sentence of six years a discount of 20 per cent for the plea, the notional starting point of the sentence is seven years and six months. The applicant submits that this starting point is beyond the appropriate range.
31 Judicial Commission sentencing statistics and cases imposing sentences for the offence of assault occasioning actual bodily harm have been included in the written submissions. I have not found the material to be of much assistance as the present case involves repeated acts of violence in a domestic setting.
32 Offences for violent attacks in domestic settings, this Court has emphasised, must be treated with real seriousness. Important factors in sentencing a domestic violence offender are specific and general deterrence, denunciation of the offending conduct and protection of the community: see for example R v Edigarov (2001) 125 A Crim R 551, R v Dunn (2004) 144 A Crim R 180, R v Hamid [2006] NSWCCA 302. As was said by Wood CJ at CL (Studdert and Bell JJ agreeing) in Edigarov at 558 [41]:
"…such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence."
33 It is evident that the Judge was mindful of the relevant sentencing principles which were summarised by Johnson J (with whom Hunt AJA and Latham J agreed) in Hamid and recognised that the facts in Hamid involved more extensive episodes of violence and three separate victims. Hamid, however, was a successful Crown appeal and Johnson J when re-sentencing [at 149] acknowledged the restraint of the double jeopardy principle and imposed sentences "at the lower end of the available range".
34 In the present case, each of the four offences of assault occasioning actual bodily harm involved separate episodes of violence towards Ms Hiron who was then pregnant. The seriousness of the offence of false imprisonment is not to be overlooked as the circumstances of Ms Hiron's detention were plainly distressful. After each of the individual offences of assault, the appellant was afforded the opportunity to reflect upon his actions and to appreciate that the violent abuse of his partner was wrong.
35 The applicant's offending was compendiously summarised by the Judge as follows:
"… on the dates in question, the subject of the charges, he inflicted upon the victim brutal and savage assaults. Photographs of the victim following the final assault indicate to some extent the ferocity of his abuse. It is also clear to me that the prisoner is a man of large and strong physique.
The Crown tendered a Victim impact Statement from the victim and a report from Mariela Occelli, clinical psychologist, which indicates that the victim has continued to suffer on going trauma as a result of these offences. It is clear that the injury and emotional harm caused to the victim is substantial.
The offences, or some of them, involved the actual use of a weapon, namely a tyre lever. The offences involved gratuitous cruelty, punching and kicking his domestic partner 23 weeks pregnant, and threatening her. The offences were committed while the prisoner was on conditional liberty, that is on parole. He abused a position of trust as a partner of the victim and father of their child and expected child. The victim was vulnerable in the sense that she was a pregnant female of much smaller build totally under the domination of the prisoner" (ROS at 3).
36 At the time of the commission of the offences the applicant was on parole for the offence of robbery in circumstances of aggravation. The commission of an offence whilst on conditional liberty has long been regarded as a factor of aggravation requiring the passing of a deterrent sentence: see for example Regina v Fernando [2002] NSWCCA 28 at [40-42].
37 The circumstances of aggravation of the offence of robbery involved serious acts of violence whereby the victim, a 23-year-old female, was physically assaulted and threatened with injury by the use of a knife, although a knife was not produced. As the Judge remarked in the passage I have quoted at paragraph 21 the prisoner has a lengthy criminal record. Having regard to the applicant's criminal history, the Judge was entitled to give more weight to considerations of personal deterrence and protection of the community than otherwise would be the case: see R v McNaughton [2006] NSWCCA 242, R v M.A.K., R v M.S.K. [2006] NSWCCA 381.
38 It is evident that his Honour gave sympathetic consideration to the subjective case advanced on behalf of the applicant.
39 The repeated episodes of violence committed by the applicant whilst on parole required a deterrent sentence. I am not persuaded that the notional starting point of the aggregate sentence is manifestly excessive. The aggregate sentence to my mind fairly and justly reflects the totality of the criminality of his conduct.
40 The second and third grounds of appeal fail.
41 Although error has been identified, I am not of the opinion that some other sentence is warranted in law and should have been passed: s 6(3) of the Criminal Appeal Act 1912. No lesser sentence is warranted and this Court should not intervene other than to impose appropriate sentences for counts 3a and 4a.