Decision
76 The submission of the Applicant is, in reality, that the final sentences imposed upon the Applicant were manifestly excessive and that a breach of the proportionality and totality principles may be inferred from the final result. In essence, Ms Loukas submits that the sentences imposed upon the Applicant were crushing sentences so as to be unreasonable or plainly unjust.
77 In my view, no patent error has been demonstrated by the Applicant in the sentencing decision in the District Court. No error of principle has been demonstrated in his Honour's approach to totality. The real question is whether the sentences imposed were manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v The Queen at 370-371 [25].
78 The offences now contained in s.86 Crimes Act 1900 were inserted by the Crimes Amendment (Gang and Vehicle Related Offences) Act 2001. The second reading speech in support of that Bill (Hansard, Legislative Assembly, 17 October 2001, page 17,518) reveals that the provisions previously contained in s.90A of the Act had proven to be "confusing and uncertain".
79 The movement away from s.90A, and the enactment of the offence now contained in s.86, reinforces the need to concentrate upon s.86 cases for assessment of factors bearing upon the objective seriousness of s.86 offences. In R v Newell, Howie J (Bell and Hislop JJ agreeing) said at [32]:
"The gravamen of the offence for the purpose of sentencing is the unlawful detaining of a person. As his Honour noted, there are a number of factors that can be relevant in making an assessment of the seriousness of an offence under section 86 including the period of the detention, the circumstances of the detention, the person being detained and the purpose of the detention. The last factor, the nature of the advantage that the offender sought to obtain, is not, in my view, conclusive as to the seriousness of the offence."
80 An argument was rejected in R v Newell at [31] that the most serious category of s.86(1) offences was confined to offences where the detention was for the purpose of ransom.
81 In R v Falls [2004] NSWCCA 335, Howie J again placed emphasis on the fact of detention, rather than the purpose of detention. His Honour emphasised at [42] that there are many factors, other than the purpose of the detention, that can be relevant to an assessment of the seriousness of a particular instance of the offence.
82 In R v Newell, Howie J at [43] emphasised the limited use of statistical information with respect to sentencing for s.86 offences:
"The Court has been referred to statistical information, notwithstanding that the applicant's solicitor appreciates its limited value. Statistical information may have value in an appropriate case to indicate a range of sentences for offences where there is a predictable similarity in the conduct amounting to the offence. I doubt that offences under s 86 will be sufficiently homogenous that a reference to statistics alone will be of much assistance. But even if a range could be established, it does not follow that a sentence for a particular offence or offender has to fall within that range. It is merely a sounding board upon which a particular sentence may be judged. In this case there is nothing in the material that makes this particular sentence ring untrue."
83 In R v Hamid, a s.86(1)(b) offence was committed in a domestic violence context by an offender with a history of domestic violence offences against several victims. At 203 [131], I said:
"With respect to the s.86 offence itself, the gravamen of the offence, for the purpose of sentencing, is the unlawful detaining of a person: R v Newell [2004] NSWCCA 183 at paragraph 32; R v Falls [2004] NSWCCA 335 at paragraph 42. The s.86 offence was committed in the context of the Respondent's controlling and violent relationship with Ms Vasconcelos. The fact that the advantage to the Respondent was confined to a form of self-protection does not reduce the seriousness of the crime. An assessment of the objective seriousness of the offence involves an examination of the immediate acts of the Respondent in the context of his violent control of the victim."
84 The seriousness of a s.86(1)(b) offence committed in the context of an offender's controlling and violent domestic relationship has received recent emphasis from this Court: R v Burton [2008] NSWCCA 128 at [95].
85 I do not consider that the Applicant's reliance upon other sentencing decisions establishes a range of sentences which assists an argument that the present sentences are manifestly excessive. A variety of circumstances is demonstrated in the cases to which the Court has been taken. Few have a domestic violence context. In this regard, I do not consider that the sentences passed in Salvaggio v R or R v Hamid assist the Applicant to establish a range of sentences.
86 Further, the sentencing statistics do not demonstrate a range of sentences to support the contention that the present sentences were manifestly excessive. The function of the courts is to sentence an offender by the application of correct sentencing principles, commencing with the gravity of the offence, and not by reference to the statistical median range of sentences handed down over a period of time: R v AEM and Others [2002] NSWCCA 58 at [116].
87 It is clear that, in mathematical terms, the s.86(2)(b) sentence was a lengthy one which exceeded many other sentences imposed on other offenders for their crimes. That, however, is not the test.
88 The practice of approaching sentencing appeals by a search for, and comparison with, sentences passed in other cases is neither helpful nor supported by authority: R v Morgan (1993) 70 A Crim R 368 at 371; R v George at 47 [48]-[49].
89 With respect to the extent of injury in a s.86(2) offence, Howie J in R v Newell observed at [37]:
"While it may be accepted that the victim did not receive any serious injury, it does not follow that the offence was not one falling within at least the middle range of seriousness having regard to all the objective circumstances of the offence. Had the injuries been more serious, the sentence would have approached nearer the maximum sentence for the offence. The offence carried a maximum sentence of imprisonment for 20 years and the whole of the applicant's conduct and the consequences for the victim had to be considered when determining how serious the offence was as against the maximum sentence prescribed."
90 The Applicant stood to be sentenced for two serious s.86 offences, with maximum penalties of imprisonment of 20 years and 14 years respectively. Both offences involved the protracted detention by the Applicant of AW and her daughter for the advantage of fending off police intervention with respect to the Applicant's violence perpetrated against both victims. As in R v Hamid and R v Burton, the offence against AW was committed in the context of the Applicant's controlling and violent relationship with that victim. As part of the offence, he inflicted actual bodily harm of a serious (and bizarre) type upon AW, in a manner which involved an element of gratuitous cruelty. Separate acts of violence were committed upon KW who, in turn, was subjected to detention and threats. Great fear was instilled in both AW and her daughter. The fact that there were two victims of offences which formed part of the one course of criminality made the total criminality of the Applicant greater than had there only been one victim: Vaovasa v R (2007) 174 A Crim R 116 at 121 [19].
91 Significant aggravating factors existed, given that the offences were committed whilst the Applicant was on bail for an offence of violence committed against AW and was subject to an apprehended domestic violence order intended to control his conduct towards his domestic partner. The present offences were committed in flagrant breach of both forms of conditional liberty, which were intended to protect AW.
92 The Applicant's criminal history contained repeated offences of violence against domestic partners, including two partners before AW. The Applicant had been provided with repeated opportunities by the criminal courts in this respect, but his recidivist conduct demonstrated a propensity to act violently towards his partners, irrespective of the existence of legal orders intended to control his conduct and to protect his partners.
93 The Applicant's prior convictions were pertinent to an assessment as to where, within the boundary set by the objective circumstances, sentences should lie by reference to his attitude of disobedience towards the law and increased weight to be given to retribution, personal deterrence and the protection of society: R v McNaughton (2006) 66 NSWLR 566 at 574 [26].
94 There were no real mitigating factors operating in the Applicant's favour on sentence. He had pleaded not guilty and had required the victims to give evidence at trial. There was a belated expression of regret in the sentencing proceedings but, as the sentencing judge found, the Applicant's statement was surrounded by efforts to blame the victims. It was both open to his Honour, and appropriate, to pay no regard to such a claim for remorse.
95 The evidence before the District Court, including the report of Dr Samuels, did not suggest that the Applicant's prospects of rehabilitation were good. To the contrary, the Applicant's long history of domestic violence and aggressive conduct, demonstrated even during his evidence in Court, provided a basis for real concern about the safety of any future domestic partner of the Applicant and the community generally.
96 Although the sentence of 10 years' imprisonment with a seven-and-a-half year non-parole period was a substantial one for the s.86(2)(b) offence, it was to be served entirely concurrently with the sentence of five years' imprisonment for the s.86(1)(b) offence. Given the violent conduct of the Applicant towards KW, and the detention of the young woman in terrifying circumstances for a protracted period, it would have been open to his Honour to consider some accumulation of the sentence for this offence: Vaovasa v R at 121 [19]. This must be kept in mind in assessing the Applicant's principal complaint that the sentences involved were manifestly excessive.
97 Each of the purposes of sentencing identified in s.3A Crimes (Sentencing Procedure) Act 1999 had application in this case, but none in a manner that favoured the Applicant. It was necessary for the court to impose sentences on the Applicant: