McFarland v R [2021] NSWCCA 79

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McFarland v R [2021] NSWCCA 79 Hearing dates: 29 March 2021 Decision date: 23 April 2021 Before: Hoeben CJ at CL at [1]; Hamill J at [69]; Wilson J at [70] Decision: (1) Leave to appeal against sentence is granted. (2) The appeal is dismissed. Catchwords: CRIMINAL LAW – sentence appeal – offences comprised aggravated take and detain a person with intent to obtain advantage, the circumstances of aggravation being the infliction of actual bodily harm and the advantage being psychological gratification – further offences of assault occasioning actual bodily harm and of driving with a high range content of alcohol in his blood were brought – with the exception of the driving offence, all offences were domestic violence related and committed against the same victim – aggregate sentence of 7 years imprisonment with a non-parole period of 4 years and 4 months – whether sentence was manifestly excessive – injuries described by sentencing judge as "horrific" and representing the most serious form of actual bodily harm – use by court of comparative cases – principles relevant to appellate review of aggregate sentencing – principles to be applied in domestic violence cases – manifest excess not made out – appeal against sentence dismissed. Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Road Transport Act 2013 (NSW) Cases Cited: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 Cherry v R [2017] NSWCCA 150 Diaz v R [2018] NSWCCA 33 Droudis v R [2020] NSWCCA 322 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Jibran v R [2020] NSWCCA 86 JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 Kerr v R [2016] NSWCCA 218 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Merkel v R [2019] NSWCCA 212 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v JD [2018] NSWCCA 233 TB v R [2020] NSWCCA 108 Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Principal judgment Parties: Ashley McFarland – Applicant Regina – Respondent Crown Representation: Counsel: S Kluss – Applicant E Wilkins SC – Respondent Crown