Martin v R

Judgment 1McCLELLAN CJ at CL : I agree with Fullerton J. 2SIMPSON J : I agree with Fullerton J. 3FULLERTON J : The applicant seeks leave to appeal against a sentence imposed in the District Court on 22 April 2010 after pleading guilty to breaking and entering the home of his former partner on 28 April 2009 and causing her actual bodily harm by kicking her and causing severe bruising to her legs. The photographs tendered on sentence attest to the severity of her injuries. 4The offence is laid contrary to s 112(2) of the Crimes Act 1900. It carries a maximum penalty of 20 years imprisonment and attracts a standard non-parole period of 5 years. After allowing a 15 per cent discount for the plea of guilty the sentencing judge imposed a term of imprisonment of 6 years which resulted in a non-parole period of 3 years and a balance of term of 3 years after a finding of special circumstances. 5In the same sentencing hearing but by reference to a separate indictment her Honour sentenced the applicant for an additional breach of s 112(2) of the Crimes Act , but on this occasion by his breaking and entering commercial premises where a larceny was committed in company. The applicant was sentenced to a term of imprisonment of 4 years comprised of a non-parole period of 2 years for that offence. A concurrent fixed term of 12 months was also imposed for a take and drive offence. There is no challenge to either sentence. 6The sentence under challenge was however partially accumulated on that effective sentence. In the result, the applicant will serve a period of 2 years in custody solely referable to the breach of s 112(2) which was committed by his breaking and entering a private dwelling and which involved the infliction of violence on his former partner. 7The applicant identified three errors in the sentence her Honour imposed for that offence. The first is constituted by her failure to assess objective seriousness relative to mid range offending in accordance with R v AJP [2004] NSWCCA 434; 150 A Crim R 575 and the second her failure to record her reason for departing from the standard non-parole period as required by s 54B(4) of the Crimes (Sentencing Procedure) Act 1999. The third error concerns her finding that the objective seriousness of the offending was aggravated by being committed while the applicant was on bail for the earlier offences, contrary to R v McNaughton [2006] NSWCCA 242; 163 A Crim R 381. 8The Crown submitted, and the applicant accepted, that the failure to provide reasons for departing from the standard non-parole period did not of itself invalidate the sentence. The Crown conceded that the errors identified in the remaining grounds of appeal were established but invoked s 6(3) of the Criminal Appeal Act 1912 in support of the ultimate submission that despite error the appeal should be dismissed since no lesser sentence than the effective 2 years imprisonment her Honour imposed is warranted in law. 9The applicant's counsel focused on the term of imprisonment of 6 years with a non-parole period of 3 years before the order for partial accumulation, a sentence which he submitted was excessive for offending which should be assessed by this Court as falling significantly below the mid range for offences of its kind and excessive when comparable cases are considered. 10An agreed statement of facts was tendered on sentence together with a pre-sentence report and a psychiatric report from Justice Health. A victim impact statement was also received. The applicant gave evidence. For the purposes of the appeal no issue was taken with her Honour's summary of the facts or the consideration she gave to the applicant's subjective circumstances. 11The applicant had been in a de facto relationship with the victim for about nine years. They had been separated for 18 months before the offence was committed. There had been frequent arguments about custody and access to their two daughters, aged six and eight, throughout that time. After the separation the applicant resumed his consumption of significant quantities of illegal drugs and alcohol from which he was largely abstinent during the course of the relationship. Her Honour accepted that he used both drugs and alcohol as a means of coping with his relationship breakdown and the separation from his children which in turn precipitated a relapse into criminal offending in company with his former criminal associates. This offending was the subject of the offences on the second indictment. 12On the day of the offence the applicant drank copious quantities of whisky in company with another man such that by 9.30pm he was heavily intoxicated. In this state he decided he wanted to see his children and went to the home of his former partner where his daughters lived. When she opened the door in response to the applicant's shouting and swearing she realised he was drunk and told him to leave or she would call the police. He continued to shout. He threatened to kick the door in if she did not open it. While she was on the phone to 000 he kicked the front door off its hinges, entered the premises, grabbed the victim by the T-shirt and began to pull her outside. There he verbally abused her and again demanded to see the children. She grabbed him by the throat to try to force him to release his grip on her whereupon he then grabbed hold of her arm and proceeded to kick the upper part of her legs several times before she managed to struggle free and run back inside the house. A neighbour appeared and told the applicant to leave. He left before the police arrived. The police observed that the victim was limping and was having difficulty bearing weight. She declined the offer of an ambulance. They photographed extensive bruising on both legs and marks on her upper arms. 13In emphasising the objective seriousness of the offending and the need for the sentence to reflect general deterrence, her Honour noted the offence was committed in the victim's home where children resided and in the context of a fractured domestic relationship. In Shaw v R [2008] NSWCCA 58, a case not dissimilar from the present case, I regarded these features as bearing relevantly upon an assessment of objective seriousness. In Hiron v R [2007] NSWCCA 336 at [32] Price J acknowledged the force of authority in this Court denouncing violent attacks in domestic settings and the need for sentences to reflect the importance of general deterrence and the protection of the vulnerable and, where appropriate, specific deterrence. 14The sentencing judge paid due regard to these factors. Although she accepted that the applicant did not attend at his former partner's home with the intention of breaking in and assaulting her but because he wanted to see his children, that decision was made under the influence of alcohol which fueled a belief (whether genuine or mistaken) that he was being denied access to his children and which erupted into uncontrolled aggression when, given his state of intoxication and his abusive conduct, the victim refused him access to her home. Her Honour's description of the offence as "committed very violently by a man who was very drunk" was accurate. 15Her Honour considered the applicant's subjective circumstances noting that he was aged 30 at the time of sentence and that he had been treated by community-based mental health services in Victoria and New South Wales for a variety of conditions over many years in relation to his long standing poly substance abuse. His first contact with the criminal justice system was at age 15. His criminal record as an adult includes offences of violence which attracted sentences of imprisonment in 2001. There was however no suggestion that his psychological problems per se were causally related to his offending although, as her Honour noted, he was self-medicating with alcohol at the time. The report from Professor Greenberg not surprisingly recommended abstinence from drugs of addiction and alcohol and adherence to such treatment programs as are offered by Justice Health whilst in custody and which should be the subject of follow up in the community upon his release. The report noted that he had been compliant with medication to treat what was diagnosed as a drug induced psychosis (in remission) whilst in custody and, according to the author of the pre-sentence report, has insight into the ramifications of his past behaviour and the need to seek support from community-based services upon his release to avoid any repetition of that behaviour. 16Her Honour accepted that the applicant's remorse and contrition were genuine and that since being in custody he had taken significant steps towards his own rehabilitation, in particular by his determination to address his drug and alcohol abuse. 17Although her Honour did not assess the objective seriousness of the offending relative to mid range offending of its kind and thereby fell into error, and despite erroneously regarding the fact that the offence was committed whilst on bail as a factor aggravating the level of objective seriousness for a standard non-parole period offence, she otherwise correctly identified those features of the offending relevant to such an assessment which in my view would have placed it at or just below mid range. I do not accept the applicant's submission that it was significantly below mid range. Were the breaking to have been effected by a weapon and were the children to have witnessed the violence (both matters which featured in Shaw to which I have already referred) the offending would have been liable to have placed within the mid range consistent with my finding in that case. 18Her Honour also considered the applicant's subjective circumstances giving them appropriate weight. 19In the result, and despite the errors which the Crown conceded infected the sentencing exercise, I am not persuaded that an effective sentence of 2 years imprisonment was unwarranted or that another sentence is warranted in law. In addition, I am not persuaded that the authorities to which counsel referred dictate a different outcome (see Shaw, Terkmani v R [2009] NSWCCA 142; 195 A Crim R 298 , Ngati v R [2008] NSWCCA 3; 180 A Crim R 384 and Zammit v R [2010] NSWCCA 29). 20Without expressing any final view, the outcome of the application for leave to appeal may have been different were the head sentence of 6 years and a non-parole period of 3 years not moderated by the order for partial accumulation in application of the principle of totality. 21The orders I propose are as follows: 1.Leave to appeal is granted. 2.The appeal is dismissed.