Lawrence v R

HEADNOTE [This headnote is not to be read as part of the judgment] On 27 August 2021 the applicant, Jerome Lawrence, was sentenced before the District Court at Campbelltown for intimidation with intent to cause harm contrary to s 13(1) of the Crimes (Domestic and Personal) Violence Act 2007 (NSW) and aggravated detain person with intent to intimidate contrary to s 86(2)(b) of the Crimes Act 1900 (NSW). A further six charges were taken into account on two Form 1 documents pursuant to ss 32 and 33(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Another charge was before the court pursuant to ss 166 and 167 of the Criminal Procedure Act 1986 (NSW). The court imposed an aggregate sentence of 6 years and 6 months imprisonment with a non-parole period of 4 years, affording the applicant a 10% discount to reflect his late pleas. In the early hours of the morning of 12 November 2019, the applicant accosted and detained his former de facto wife whilst subject to an Apprehended Domestic Violence Order imposed to protect her. The offending continued over a 9 hour period during which the applicant drove the victim from south western Sydney to and around the Wollongong area at high speed and in an erratic manner, all whilst abusing, threatening and assaulting her. The applicant had previously been imprisoned for assaulting, intimidating and threatening the victim, and for breaching court orders made for her protection. The period of detention ended only when the victim ran from the car, despite the applicant's threats that he would kill her if she escaped. The applicant sought to extend the time in which to file the application for leave to appeal and sought leave to appeal his sentence. The applicant advanced five proposed grounds of appeal, that: 1. the sentencing judge erred by aggravating the offending by reason of the applicant's criminal history; 2. the sentencing judge erred in her assessment of the objective seriousness of the offending without reference to the applicant's reduced moral culpability and mental health conditions; 3. the sentencing judge erred in finding that the applicant's drug use from an early age did not amount to a mitigating factor; 4. the sentencing judge erred in double counting the presence of the knife in Count 1, both in determining where on the scale of seriousness the offending sat and also by counting it as an aggravating factor; and 5. the sentencing judge erred in imposing a sentence that was manifestly excessive. The Court (Gleeson JA, Davies and Wilson JJ) held, dismissing the appeal: As to ground one, per Wilson J (Gleeson JA and Davies J agreeing): 1. That an offender may have a deprived background or an impairment to mental health or cognition, as the applicant did, or some other feature warranting a diminution in moral culpability or amelioration of the application of the principle of general deterrence, does not detract from the operation of s 21A(2)(d) of the Crimes (Sentencing Procedure) Act, or of the Veen (No 2) (1988) 164 CLR 465 principle extracted at [59]: [62] per Wilson J; [1] per Gleeson JA; [3] per Davies J. 2. There was no error in the conclusion of the sentencing judge that his criminal history was "an aggravating factor", since the phrase referred to a feature that was relevant overall to the determination of the appropriate sentence, and not to one which elevated the objective gravity of the offences: [66] per Wilson J; [1] per Gleeson JA; [2] per Davies J. Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Commonwealth Director of Public Prosecutions v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, considered. As to ground two, per Wilson J (Gleeson JA and Davies J agreeing): 1. The sentencing judge considered the applicant's moral culpability distinct from the objective gravity of the offences. The deprivation of the applicant's background and his consequential mental health difficulties were features that affected the weight to be given to considerations of moral blameworthiness and general deterrence, but they were not relevant to an assessment of the gravity of offences committed over a prolonged period that involved the assault, intimidation, and degradation of a former de facto spouse: [79] per Wilson J; [1] per Gleeson JA; [2] per Davies J. DR v R [2022] NSWCCA 151; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Biddle v R [2017] NSWCCA 128; Tepania v R [2018] NSWCCA 247; DS v R; DM v R [2022] NSWCCA 156; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered. As to ground three, per Wilson J (Gleeson JA and Davies J agreeing): 1. The applicant's drug addiction was properly treated as both the product and symptom of his disadvantaged upbringing and mental health issues, in that way giving proper mitigating weight to that aspect of the subjective case. It was neither necessary nor appropriate to have regard to it in a secondary and "distinct" way. It will be a rare case in which a drug addiction, of itself and standing alone, can be treated as a mitigating factor: [85] per Wilson J; [1] per Gleeson JA; [2] per Davies J. Hayek v R [2016] NSWCCA 126, considered. As to ground four, per Wilson J (Gleeson JA and Davies J agreeing): 1. A finding of double counting cannot rest on the number of times a particular feature is mentioned; it is the use that is made of the feature that is of significance: [90] per Wilson J; [1] per Gleeson JA; [2] per Davies J. As to ground five, per Wilson J (Gleeson JA and Davies J agreeing): 1. A sentence lower than that imposed by the sentencing judge would have failed to uphold the principle in Munda extracted at [99]. The sentence imposed upon the applicant might be characterised as lenient; it could not be regarded as one which was unfair or unjust: [99]-[100] per Wilson J; [1] per Gleeson JA; [2] per Davies J. Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, considered.