R v Eckermann - [2013] NSWCCA 188 - NSWCCA 2013 case summary — Zoe

NSWNSWCCA

R v Eckermann

[2013] NSWCCA 188

Court of Criminal Appeal (NSW)|2013-07-29|Before: Johnson J, Price J, Hulme J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2013-07-29

Before

Johnson J, Price J, Hulme J

Catchwords

Hunter v R (2010) 208 A Crim R 353
[2010] NSWCCA 330 Green v The Queen
Quinn v The Queen [2011] HCA 49
(2011) 244 CLR 462 Hiron v R [2007] NSWCCA 336 House v The King (1936) 55 CLR 499

Source

Original judgment source is linked above.

Catchwords

Hunter v R (2010) 208 A Crim R 353[2010] NSWCCA 330 Green v The QueenQuinn v The Queen [2011] HCA 49(2011) 244 CLR 462 Hiron v R [2007] NSWCCA 336 House v The King (1936) 55 CLR 499[1936] HCA 40 Hussain v RAli v R [2010] NSWCCA 184 Mulato v R [2006] NSWCCA 282 R v Baker [2000] NSWCCA 85 R v Dunn (2004) 144 A Crim R 180[2004] NSWCCA 41 R v Edigarov (2001) 125 A Crim R 551[2001] NSWCCA 436 R v Fahda [2013] NSWCCA 86 R v Hamid (2006) 164 A Crim R 179[2006] NSWCCA 302 R v Johnson [2004] NSWCCA 140 R v KBR v JL

Judgment (2 paragraphs)

[1]

Judgment 1JOHNSON J: I agree with Price J. 2PRICE J: The Director of Public Prosecutions (the Director) appeals pursuant to s 5D(1) of the Criminal Appeal Act 1912 against a sentence imposed upon Anthony Eckermann, the respondent, in the District Court on 26 March 2013. 3The respondent pleaded guilty to the charge that on 23 June 2012 he did break and enter the dwelling house at x xxxxx xxx, and therein did assault Cassandra Haines occasioning actual bodily harm to her, in circumstances of aggravation, namely, he knew there were persons inside. This was a count of aggravated break, enter and commit serious indictable offence contrary to s 112(2) of the Crimes Act 1900. Such an offence carries a maximum penalty of 20 years imprisonment. A standard non-parole period of 5 years has been prescribed. 4The respondent asked the judge to take into account on sentence an offence of assaulting Ms Haines contrary to s 61 of the Crimes Act. Taking into account the matter on the Form 1, the respondent was convicted and sentenced to imprisonment for 2 years. The judge directed that the sentence be suspended on the respondent entering into a good behaviour bond pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 on the following conditions:

To be of good behaviour.
To appear before the court at any time if called upon to do so.
To report to the Muswellbrook Office of the Probation and Parole Service no later than 4:00pm on 2 April 2013 and obey all reasonable directions of officers of that service with particular emphasis on alcohol rehabilitation.
To maintain contact with the Probation and Parole Service as often as they reasonably require you to do so.
To notify the court, in writing, of any change of residential address within 7 days of the date of any such change. 5The respondent entered into the s 12 bond on 26 March 2013. The appeal was lodged by the Director on 19 April 2013. The Notice of Appeal identifies the following grounds: Ground 1: His Honour erred in his assessment of the objective gravity of the respondent's crime. Ground 2: Honour (sic) erred in giving too much weight to the fact that the respondent was known to his victim in assessing the objective gravity of the crime. Ground 3: In all the circumstances the sentence is manifestly inadequate. 6With leave of the Court, a fourth ground of appeal was added which is: Ground 4: His Honour erred in his approach to the suspension of the sentence. FACTS 7A statement of facts was tendered which the judge recounted in his remarks on sentence. The facts included the following: The offender and the complainant, Cassandra HAINES, had been in a domestic relationship for some 9 years, until 16 months ago when the pair separated due to domestic violence perpetrated by the offender. They have two children together. There was a domestic apprehended violence order in place from Queensland Police Force which named the offender as the defendant and the complainant as the protected person. The complainant and her current partner Shannon ROBINSON had been in a domestic relationship for the last 8 months. At the time of the offence the complainant resided at a dwelling house situated at x xxxxx xxx, Muswellbrook with her three children; two of the offender. Mr. ROBINSON would stay over regularly. Offence to be Taken into Acount (sic) - Common Assault DV (Haines) [Form 1 Offence]: At about 10am on Friday, 22 June 2012, the offender attended the complainant's home to look after the children whilst she went to work. The complainant returned home at about 3:45pm. She and the offender sat out the front of the house and talked about their relationship whilst the children played in the front yard. The offender was getting upset and annoyed due to the discussion. At about this time, Mr. Robinson arrived on scene and the offender muttered under his breath to one of the children, "I'm gonna punch the shit out of that cunt". The complainant heard this and remonstrated with the offender. The offender had his hands by his sides clenched in a fist, chewing his jaw. He questioned Mr. Robinson's need to be there, saying to the complainant, "Why is he here? You're jeopardising my kid's safety. I'm going to smash him". Mr. Robinson remained at the front of the property smoking a cigarette. The offender pushed past the complainant and approached Mr. Robinson. The complainant moved back in between the pair and as she did the offender swung a punch using his right fist at Mr. Robinson. It hit her on the left hand side of her face. She felt pain and walked away. The offender and Mr. Robinson involved themselves in a verbal fracas. The children were in the front yard the whole time, yelling at the pair to stop fighting. The complainant took the children inside, the fracas stopped, and the offender left the area. Count 2 - Aggravated Break and Enter and Commit Serious Indictable Offence (Assault occasioning Actual Bodily Harm) - Knowing Persons Inside: Between the hours of midnight and 3:20am on Saturday, 23 June 2012, the complainant and Mr. Robinson were asleep in the bedroom of x xxxxx xxx, Muswellbrook with the complainant's three children asleep in the lounge area of the house. The offender made numerous phone calls to the complainant during this period, which she ignored. At about 3:30am the complainant was woken by Mr. Robinson telling her that someone was tapping on the bedroom window. The complainant assumed it was the offender and went to the front door. She opened the front security door slightly and saw the offender standing right in front of the screen door. He said, "Where is Shane, I'm going to kill that cunt. It's all your fault because you have let him back in your life and the kids". The complainant immediately locked the screen door and said to the offender, "the kids are having a sleep over. It's 4am in the morning. Shannon is asleep. Can you come back in the morning". The offender became increasingly agitated and argumentative. The complainant shut the security door and locked it hoping the offender would leave. He did not and she could see him pacing back and forth on the veranda. The complainant heard the front lounge room window move like someone was attempting to open it. She went over to the window and saw the offender standing at the window trying to pull it up. The complainant held down the window. Suddenly the complainant heard the glass smash above her head and she saw the foot of the offender come through the window further breaking the glass. The offender climbed through the window into the residence in one motion. The complainant saw blood all over the window sill and surrounding floor. The complainant stepped back from the window and told the kids to run down the hall away from the offender. The children were scared and yelling at the offender, "Please stop. Leave us alone". Mr. Robinson observed the offender break the window and enter the house whilst Ms. Haines was telling him to get out and trying to prevent his entry. Mr. Robinsons, understanding the offender's ire would be directed at him, went into the laundry and closed the door over. He had called police on 000 and remained on the line at this time. From the laundry Mr. Robinson heard the offender searching the house yelling, "Where the fuck is he?" so he ran out the back door, jumped the back fence, and hid up the street. The offender stood over the complainant and said, "You're letting Shannon back into the house. Why can't I have a second chance? I'm going to kill Shannon! You have ruined my life and my family's life! You're a slut for being with Shannon." He kept repeating, "You wait till I find that cunt, I'm going to bury him alive". The offender grabbed the complainant around the throat and face and squeezed. The complainant was fearful for her life. The offender pushed the complainant down the hallway into her bedroom by her face. The children were in this room crying under the blankets of the bed. Mr. Robinson was not in the room. The offender pushed the complainant onto the bed on her back, stood over her with both his fists clenched and raised, and yelled, "Where is he? Where is he?" The complainant sat up in the bed and the offender punched her with his left closed fist once to the right side of her face. The complainant felt pain immediately. She moved to beside the bed and huddled down with her three children. The offender asked one of his children for a cuddle, telling him that blood was nothing to be scared of. The child hugged his father. The complainant used this distraction to call Police. She left the line open but could not really talk to the operator. This call was recorded as recording 195074 and forms part of the Crown case on sentence. Police arrived at the scene quickly and could hear yelling coming from within the dwelling house. Police knocked on the door and the offender opened the security door, leaving the screen door locked. Police attempted to talk to the offender but he would not let them inside the house, saying words to the effect of, "Fuck off you dogs this has nothing to do with you". Police noticed that both the offender hands were covered in blood. The complainant approached the door quietly and unlocked the screen door, before running back to her bedroom in fear of retribution. The police opened the screen door immediately but the offender shut the security door. The offender followed the complainant into her bedroom. He stood over [her] with clenched fists again, yelling, "Where is Shannon? I'm going to kill that cunt! Why would you call Police? You're nothing but a dog. Why would you let him back in?" Police heard screaming coming from within the house and fearing that a breach of peace was occurring, forced entry into the residence by kicking in the front security door. The offender, upon hearing police force entry, left the bedroom and entered the lounge room. As police entered the residence the offender rushed at them with clenched fists. He said to police, "Don't fucking come in here you cunts". Police told the offender to get on the ground but he replied, "Go and get fucked, come and have a go you fucking dogs". After about five minutes of such discourse the offender became compliant and police handcuffed, cautioned, and arrested him. Police located the complainant and her children crying under a blanket in the bedroom. Police observed a reddish mark to the left-hand cheek bone of the complainant. Police took photographs of the damage to the house; including the broken window, a broken mirror, a damaged door, and blood on the walls, the door, the floor and the bedding." The respondent's case 8The respondent gave evidence during the proceedings on sentence. He was born on 27 October 1985 and was 26 years old at the time he committed the offences. During his evidence, the respondent said that he and Ms Haines had been in a domestic relationship for some 9 years, with the relationship ending in 2011. There were two children of the relationship, with the respondent also taking on a paternal role to a third child of Ms Haines. The respondent said that Ms Haines had asked him to move to Muswellbrook to help with the children which he did on 21 June 2012. 9The respondent acknowledged that he was subject to an apprehended violence order in Queensland that had been issued for Ms Haines' protection, but said that he had been told by a police sergeant that seeing Ms Haines would not be a breach of the order. He gave evidence that he intended to obtain permanent accommodation in Muswellbrook and to share custody of the children. He had not expected to see Shannon Robinson as Ms Haines had notified him that she had taken out an apprehended violence order (AVO) on Mr Robinson. When he ascertained that Mr Robinson was back in the house with the children, he was distressed and went to a hotel where he drank quite a lot and became heavily intoxicated. 10The respondent said that on discovering he had missed telephone calls from his step-son and Ms Haines, he decided to go to Ms Haines' house to make sure his children were safe. He left the hotel at about 2am. He accepted that it was the wrong thing to do and was irresponsible. His purpose for going there was his concern for his children's well being. 11The respondent gave evidence that he had seen a counsellor numerous times and had not consumed alcohol since the offence. He was currently employed as a permanent kitchen hand at the Muswellbrook Worker's Club. A letter from the Administration Manager of the club confirming the respondent's employment was tendered. 12Peta McClintok, the respondent's girlfriend, gave evidence that she had known the respondent for about 6 ½ months and described him as being a gentleman. He was excellent with her three children and she had not seen him drinking alcohol. 13A three-page letter to the judge from Sarah Fyffe, Ms Haines' first cousin, was tendered. She stated that the respondent was an excellent, capable father to all three children. She detailed her discussions with Ms Haines about Mr Robinson which included Ms Haines telling her that she had another AVO in place against him. According to Ms Fyffe, Ms Haines told her that Mr Robinson had been repeatedly angry and violent towards her. 14Other testimonials were placed before the judge which included a letter from Ms Haines' mother who stated that the respondent had lived with her whilst on bail and had obtained full time employment. Mrs Haines wrote (at AB 52): "At the risk of my own daughter not wanting anything to do with me, I agreed to bail Anthony out at the time of the "alleged" offences, because I know Anthony. And I know how much he loves his children". 15A report from a Drug and Alcohol Counsellor disclosed that the respondent had attended the Upper Hunter Drug and Alcohol Service for ongoing counselling and education on five occasions. The results of the assessment indicated "a historic harmful pattern of heavy binge drinking" (AB 47). The respondent last engaged in counselling on 7 November 2012 when he self-reported "to have maintained abstinence from alcohol use since July 2012" (AB 47). 16The respondent's prior criminal history includes offences of assault officer in execution of duty (2005), assault occasioning actual bodily harm (2005, 2006), and drive with high range PCA (2011). Some findings by the judge 17In his sentencing remarks, the judge said there was no doubt this was a most serious offence and no reasonable person would suggest otherwise. His Honour then said (at ROS 7): "However, as bad as this was, in my assessment, in terms of [objective] gravity, this offence fell towards the lower end of the wide spectrum of offences covered by section 112(2)". 18His Honour considered that the matter on the Form 1 was an attempt by the respondent to assault Mr Robinson and not Ms Haines. It was, "a kind of transferred malice" (ROS 10). 19There was, his Honour said, a need for general deterrence particularly in a case like this involving domestic violence. His Honour took into account that the respondent had a prior record of violence. 20His Honour observed that one of the striking features of this case "is that whatever [the respondent's] deficiencies he was an extremely good father and a man who loved his children very much" (ROS 9). As against the objective gravity of the offences, there were "some strong subjective features" (ROS 10). 21In his Honour's assessment, the applicant had good prospects of rehabilitation. Ground 1: His Honour erred in his assessment of the objective gravity of the respondent's crime. Ground 2: His Honour erred in giving too much weight to the fact that the respondent was known to his victim in assessing the objective gravity of the crime. 22It is convenient to deal with Grounds 1 and 2 together as they are in essence part of the same complaint. The Crown submitted that there were three features of the offence which, in the view of the judge, meant that the crime fell "towards the lower end of the wide spectrum" of offences captured by s 112(2) of the Crimes Act (ROS 7). The Crown contended that his Honour was in error in the way in which he viewed two of these three features, namely that the respondent was known to his victim and the respondent's motives were held to be a desire to protect his children, which led to an overall error in the assessment of the objective gravity of the offence. 23The Court's attention was drawn by the Crown to the following passage in the judge's remarks on sentence (ROS 7-8): "The offender was not a stranger to [Ms] Haines, quite the reverse, of the children or even to Mr Robinson. The learned Crown Prosecutor, in her written submissions, withdrew an earlier concession that generically speaking the commission of this sort of offence by somebody who is known to the occupants is not necessarily less frightening than one committed by a stranger. All I will say about that is this, there are cases and cases. In my view, as bad as this was, this would have been less frightening than a home invasion by some stranger where the occupants, including Ms Haines, would have no idea initially why the stranger was there or what he or she was about." 24The Crown submitted that these comments do not sit happily with the well documented vulnerability of women to violent attack by current or estranged partners. The Crown argued that in concluding that the offence was less serious than it otherwise would have been by virtue of the domestic relationship that existed between the respondent and Ms Haines, his Honour fell into error which was compounded by his assessment of the respondent's motive in entering Ms Haines' home. 25It was the Crown's submission that the judge erred in concluding that the respondent committed the offence because of a concern for the safety of his children and that it was a feature which lessened the gravity of the offence. The Crown argued that the credible evidence established a very different and less commendable motive - a desire to inflict violence upon Mr Robinson. 26The respondent submitted that the judge did not make a specific error as contended by the Crown in Ground 1. The respondent pointed out that the judge found that "this was a most serious offence" and at no point did his Honour treat the case as otherwise than objectively serious (ROS 7). It was submitted that the judge's comments in the passage quoted at [23] above went to the issue of fear which was a relevant consideration. The respondent argued that "[a] person with knowledge of the other will have some idea of the nature of the conflict and such knowledge may give rise to an expectation of a certain form of behaviour; whereas, the complete stranger, is an unknown quantity" (RWS para 18). The respondent contended that it was an unwarranted leap based on a misinterpretation of his Honour's words that leads the Crown to infer that the judge was devaluing the violence because it was of a domestic kind. As to the Crown submission of error in the finding of the respondent's motive, the respondent submitted that his Honour's remarks were supported by the evidence. 27A determination of where the subject offence lies on the scale of seriousness of an offence of its type is essentially one of fact and as such is reviewable in this Court only on the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40. As was said by Simpson J in R v Johnson [2004] NSWCCA 140 at [36]: "For the Crown to succeed on this aspect of the appeal, it is necessary that it establish that the finding, which is essentially one of fact, was not open to his Honour. The finding, being an evaluation, is akin to an exercise of discretion and may only be held to be wrong if it can be shown that some wrong principle was applied, or irrelevant consideration taken into account (or a relevant consideration overlooked) or that the finding itself simply was not open on the evidence: House v The King..." 28This Court has emphasised that where there is a challenge to a sentencing judge's characterisation of objective seriousness of an offence, the question is whether the particular characterisation which the sentencing judge gave to the circumstances of the offence was open to him: Mulato v R [2006] NSWCCA 282 per Spigelman CJ at [37]. The approach in Mulato affirmed the importance of respecting the role of the sentencing judge, of paying due regard to his or her decision, and the need for caution before reaching a concluded view that the sentencing judge was in error: R v Fahda [2013] NSWCCA 86; R v KB; R v JL; R v RJB [2011] NSWCCA 190. 29Before assessing the objective seriousness of the offence, the judge recognised that an offence contrary to s 112(2) may be committed in a wide variety of different circumstances. His Honour said (at ROS 6): "In terms of the objective gravity of this offence, the first thing I wish to note is this, that the range of conduct which will attract criminal liability under section 112(2) of the Crimes Act is very wide indeed." 30The judge then referred to the circumstances of aggravation defined in s 105A which includes that the offender is: armed with an offensive weapon; in company of another person; uses corporal violence on any person; intentionally or recklessly inflicts actual bodily harm on any person; deprives any person of his or her liberty; and/or knows that there is a person, or there are persons, in the place where the offence is committed. His Honour noted that in the circumstances before him the infliction of actual bodily harm was in fact the serious indictable offence that had been committed and the circumstance of aggravation relied upon by the Crown was that there were persons in the place where the offence was committed. 31In seeking to explain the wide embrace of offending contrary to s 112(2), the judge referred to such cases ranging from "a group of strangers conducting what is sometimes and accurately known as a home invasion, with consequent terror of people within a dwelling, down to somebody who breaks into premises by opening a door and stealing some object inside..." (ROS 7). 32His Honour then remarked that there was no doubt that this was a most serious offence, but assessed the offence "towards the lower end of the wide spectrum of offences covered by s 112(2)" (ROS 7). The three features identified by the judge "amongst others" for reaching that conclusion were (at ROS 7-8): (i) the respondent was not a stranger to Ms Haines. As bad as the offence was, it would have been less frightening than a home invasion by some stranger (see the passage quoted at [23] above); (ii) there was a serious assault, but the actual bodily harm was very much to the lower range; and (iii) the primary motive for the respondent going to the home was because Mr Robinson presented some kind of physical danger to the children. 33During the proceedings on sentence on 22 March 2013, there had been some discussion between the judge and Ms Wilson, the Crown Prosecutor concerning the offence being one involving domestic violence. The judge in the course of the exchange with Ms Wilson said (at AB 77): "...But I can imagine some circumstances where it would be more terrifying if you didn't know, if the people in the house didn't know who the intruder was, because they would be less likely to know what the intruder was about." Ms Wilson responded (at AB 77): "It would be, your Honour, I don't take issue with that. It would be more terrifying to have a stranger smash his way into your home. But he's not being sentenced for that..." 34The matter was adjourned for sentence on 26 March 2013. During the adjournment, Ms Wilson forwarded written submissions to the judge in which she withdrew the concession that a similar offence committed by a stranger would have been objectively more frightening and serious. Ms Wilson submitted that "[t]here is no evidence as to how the occupiers would have felt about the comparable crime, and it is probably not useful to speculate on this point, or try to draw the comparison" (Additional CPS p3). 35It appears that the judge did not accept the Crown Prosecutor's submission as he placed some importance on whether the offender was a stranger to Ms Haines or known to her as a factor in his characterisation of the offence. Home invasions by strangers are undoubtedly serious examples of an offence contrary to s 112(2), but so may be break and enters where an offender has previously been in a domestic relationship with the occupant of the house, particularly when there has been a history of domestic violence. In such cases, the victim's fearfulness should not be underestimated. An offence does not become less serious by virtue of a prior domestic relationship between an offender and the victim. The objective gravity of the crime is to be assessed on its facts. In Hussain v R; Ali v R [2010] NSWCCA 184, Davies J observed at [80]: "It was submitted on behalf of both Ali and Hussain that, all other things being equal, when an offender is a close relative of the victim that association in most cases and in the present case makes the act of criminality of a lesser nature. I do not agree with that submission. It overlooks the fact that a victim who is a relative, and particularly a wife, may be in a more, rather than a less, vulnerable position with regard to the wrongful acts of the offender. It contains the inference that it is less serious to commit a crime, whether a crime involving property or a crime of violence against a relative compared with a stranger." 36On the facts of this case, I am unable to understand how the judge was able to find that the offence "would have been less frightening than a home invasion by a stranger". The respondent and Ms Haines had separated due to domestic violence perpetrated by him. Ms Haines had been struck on the face by the respondent on the previous afternoon. The respondent broke into the home at about 3:30am in a highly agitated state and grabbed Ms Haines around the throat and face. Ms Haines was fearful for her life. She was pushed down the hallway and onto her bed where the respondent punched her with his closed fist to the right side of the face. In my respectful opinion, the finding by the judge was not open on the evidence and his Honour erred in giving weight to the fact that the respondent was not a stranger to Ms Haines in characterising the objective seriousness of the offence. 37The Crown does not complain about the judge's assessment of actual bodily harm. The facts reveal that Ms Haines had "a reddish mark to the left-hand cheek bone" and bruising was apparent when photographs were taken by the police (AB 34). The Crown does however contend that the judge was in error in concluding that the respondent's motivation in entering Ms Haines' home was a concern for the welfare of his children. 38During his remarks on sentence, the judge found "that in the offender's extremely drunken state his primary motive for going to this house in his clouded state of mind was because in his view Mr Robinson presented some kind of physical danger to his two children and also the son of [Ms] Haines, with whom the offender had became close" (ROS 8). 39The judge referred to the AVO Ms Haines had obtained against Mr Robinson and found that "[I]n the offender's mind... Mr Robinson presented some kind of physical danger to the children themselves, quite apart from Ms Haines" (ROS 8). His Honour later said (at ROS 9): "Looked at in the cold light of day, that seems a very odd thing to do at about 3 o'clock in the morning but I can accept that in the offender's drink addled mind, at that hour of the morning, it may have seemed a logical thing to do. The point is this, in my view, that there was at least a significant component in the offender's mind at that time of his concern for the welfare of his children. Whether or not there was also a significant component of jealousy against Mr Robinson for his relationship with Ms Haines, it is very difficult to say. There is no question that at least by the time the offender got to these premises that he was bent on physical violence directed towards Mr Robinson, no doubt because he believed that Mr Robinson was a threat to his children, which I am satisfied beyond any doubt on the evidence he loved very dearly indeed." 40There was evidence before the judge that the respondent loved his children and that he was intoxicated at the time of the offending. There was also evidence that the respondent had been told by Ms Haines that she had taken out an AVO against Mr Robinson. The respondent had given evidence as to his reasons for going to the home and it was open to his Honour to make these findings as to motive. 41Although upon the judge's findings the respondent's primary motive in going to the home was his concern for the children, it is plainly evident that his actions of violence towards their mother terrified the children who were 6, 7 and 11 years old. 42An aggravating factor to be taken into account was that "the offence was committed in the presence of a child under 18 years of age": s 21A(2)(ea) Crimes (Sentencing Procedure) Act. In Gore v R; Hunter v R (2010) 208 A Crim R 353; [2010] NSWCCA 330, Howie J observed at [104]: "...it is not difficult to appreciate that the provision in s 21A(2)(ea) is principally aimed at the deleterious effect that the commission of a crime, particularly one of violence, might have on the emotional wellbeing of a child. The commission of the offence may also be deleterious to the child's moral values. It does not matter whether the offender is a parent of the child or not, although if it is a parent this will be particularly aggravating." 43The judge said that he had taken "into account that the children were present during this episode and that it was a very unseemly and upsetting incident" (ROS 10). However, his Honour did not make any reference to the commission of the offence in the presence of the children as being a factor of aggravation. This was an important consideration which his Honour overlooked. 44I am mindful that questions of weight are matters for the discretion of the sentencing judge and will not unusually justify intervention upon appeal: R v Baker [2000] NSWCCA 85. In the present case, however, the weight that his Honour gave to the applicant's primary motive for going to the home was one of the matters that led to error. 45In my respectful opinion, very little weight could be given by the judge to the respondent's primary motive for going to home as a factor that reduced the objective seriousness of the offence. The gravamen of the respondent's offending is what he did after he arrived at the home. 46I conclude that it was not open to the judge to characterise the offence as being "towards the lower end of the wide spectrum of offences covered by section 112(2)" (ROS 7). The evidence compels a finding of objective seriousness towards the middle of the range for such an offence. 47I would uphold Grounds 1 and 2 of the appeal. Ground 4: His Honour erred in his approach to the suspension of the sentence. 48It is appropriate to deal with Grounds 3 and 4 out of chronological order. 49The Crown's assertion of error focuses upon the remarks on sentence when the judge was dealing with the question of whether to suspend the respondent's sentence. His Honour said (at ROS 12): "Section 5 of the Sentencing Act says that a court is not to impose a sentence of imprisonment in effect unless there is no other suitable penalty available. In my view, that principle applies also to a sentence of fulltime imprisonment. The question, in my view, in this case is, as bad as this was, looking at all the circumstances, should Mr Eckermann receive a fulltime custodial sentence. My instinctive synthesis indicates that the answer to that question is "No". 50The Crown accepted that the judge correctly dealt with the preliminary issue under s 5(1) of the Crimes (Sentencing Procedure) Act of whether no penalty other than imprisonment was appropriate, but submitted that his Honour thereafter erred. The Crown contended that in stating "that principle applies also to a sentence of fulltime imprisonment" his Honour wrongly applied the terminology in s 5(1) to the question of whether a full-time sentence should be imposed (ROS 12). The Crown pointed out that his Honour was required at that stage to nominate the term of the sentence without having regard to how the sentence should be served, and only then determining whether an alternative to full-time imprisonment should be imposed. The Crown also referred to his Honour's reference to "instinctive synthesis" as further highlighting error as such an approach was said by the Crown to be entirely contrary to what is required by a sentencing court in imposing a suspended sentence. The Crown argued that this was a fundamental error of approach that led to the imposition of a manifestly inadequate sentence. 51The approach that a court is required to undertake when sentencing an offender to a suspended term of imprisonment was explained by Howie J in R v Zamagias [2002] NSWCCA 17 at [22] - [30]. The preliminary question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment. Having determined that there is no other penalty appropriate other than a sentence of imprisonment, the court is next to determine what the term of that sentence should be. Once the term of the sentence has been determined, the court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. 52Although his Honour asked the question whether the sentence should be suspended before announcing the term of imprisonment, I am not persuaded that he overlooked the necessity of first determining the length of the sentence. A sentencing judge is not required to expressly state that these two steps have been taken before the sentence is suspended: Zamagias at [30]. To my mind, the Crown's complaint amounts to no more than a matter of form, rather than substance. I would reject Ground 4 of the appeal. Ground 3: In all the circumstances the sentence is manifestly inadequate. 53The Crown's complaint of manifest inadequacy centred upon the suspension of the sentence and not on its length. It was the Crown's submission that, having regard to the objective seriousness of the offence and the particular need for general and personal deterrence, a full-time custodial sentence was required. The respondent submitted that, in the whole of the circumstances, the imposition of a custodial sentence and then its suspension was appropriate. 54Notwithstanding the respondent's subjective circumstances that include love for his children, his employment and good prospects of rehabilitation, I am of the opinion that a suspended sentence was manifestly inadequate. This was a serious offence of violence by the respondent. When women (and men) enter into a new domestic relationship, they are entitled to do so without the threat of violence from a former partner. This is particularly so when there are children of the prior relationship as acts of violence towards a parent particularly when committed in the childrens' presence have the potential to impact severely upon their well-being and future development. 55This Court has emphasised the seriousness with which violent attacks in domestic settings must be treated: Hiron v R [2007] NSWCCA 336. Specific and general deterrence, denunciation of the offending conduct and the protection of the community are important factors in sentencing a domestic violence offender: R v Dunn (2004) 144 A Crim R 180; [2004] NSWCCA 41; R v Edigarov (2001) 125 A Crim R 551; [2001] NSWCCA 436; R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302. In my view, the respondent's subjective circumstances could not justify the suspension of the sentence. A full-time sentence of imprisonment was called for. 56The question remains as to whether the Court should intervene and re-sentence the respondent. There is a residual discretion to decline to interfere even though the sentence is manifestly inadequate. 57In Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462, the majority (French CJ, Crennan and Kiefel JJ) observed at [1] that the primary purpose of Crown appeals was to "lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." Their Honours at [36] described the primary purpose of laying down principles as a "limiting purpose" and said: "...It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion." 58Their Honours observed at [43] that other circumstances may combine to produce injustice if a Crown Appeal is allowed. Their Honour's said at [43]: "...They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of the re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual." 59At the hearing of the appeal, no material was provided by the respondent as to his present circumstances. The Court's knowledge of the respondent is restricted to the material before the judge when he was sentenced in March and his entry into the s 12 bond on the day of sentence. There is no evidence as to any progress that he might recently have made towards rehabilitation. It is surprising that an up to date report from the Probation and Parole Service was not tendered. The hearing of the appeal and its determination has not been unduly delayed. I do not consider that by allowing the appeal, the guidance to sentencing judges comes at too high a cost in terms of "justice to the individual". 60For the purposes of re-sentencing, the objective and subjective considerations to be taken into account are clear from what I have written to this point. Taking into account the offence on the Form 1, I would allow the appeal and re-sentence the respondent to a term of imprisonment for 2 years. I would find special circumstances being the respondent's need for rehabilitation, particularly in relation to his long-standing abuse of alcohol and fix a non-parole period of 14 months. The respondent spent three days in custody following his arrest before bail was granted and he has been the subject of the suspended sentence since 26 March 2013. Accordingly, the sentence is to commence on 23 March 2013. Orders: 61Accordingly, the orders I propose are as follows:
Appeal allowed.
Sentence imposed by Hosking SC ADCJ on 26 March 2013 quashed.
In lieu thereof sentence the respondent to imprisonment with a non-parole period of 14 months commencing on 23 March 2013 and expiring on 22 May 2014 and a balance of term of 10 months expiring on 22 March 2015.
Direct that the respondent be released on parole on 22 May 2014.
The conditions of the respondent's parole are to include the supervision and guidance of the Probation and Parole Service with particular emphasis on alcohol rehabilitation. 62RA HULME J: I agree with Price J.