Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Elwood v R [2023] NSWCCA 200 Hearing dates: 14 August 2023 Date of orders: 14 August 2023 Decision date: 17 August 2023 Before: Adamson JA, Wright J Fagan J Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIME – appeals – appeal against sentence – alleged manifest excess – offending constituted by single 3½ hour domestic violence episode – multiple offences against estranged partner and sister – multiple property offences and offences against police – prior record of domestic violence – disadvantaged Indigenous applicant – aggregate sentence not manifestly excessive – leave to appeal granted – appeal dismissed Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes Act 1900 (NSW) Category: Principal judgment Parties: Connor Elwood (Applicant) Rex (Respondent) Representation: Counsel: S Fraser (Applicant) E Wilkins SC (Respondent) Solicitors: Aboriginal Legal Service (NSW/ACT) (Applicant) Office of Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2021/00368701 Publication restriction: No Decision under appeal Court or tribunal: District Court NSW Jurisdiction: Criminal Date of Decision: 15 September 2022 Before: Judge J Smith SC File Number(s): 2021/00368701 HEADNOTE [This headnote is not to be read as part of the judgment] On 15 September 2022 the applicant was sentenced in the District Court for domestic and personal violence offences, property offences and offences against police, committed by him in a 3½ hour episode at a residential property in Bourke on 29 December 2021. The applicant was sentenced after pleading guilty to all charges in the Local Court. He sought leave to appeal on the sole ground that the aggregate sentence imposed was manifestly excessive. The principal victim was the applicant's estranged partner, who was staying temporarily at the house with their children and with the applicant's sister and her children. Offences committed against her were reckless wounding, by slashing her arm and leg with the jagged edge of a broken bottle, assault occasioning actual bodily harm and contravention of an apprehended domestic violence order. Offences of intimidation and reckless damage to property were committed against the applicant's sister. The damage to property included smashing a window and exterior cladding of the home and extensive damage to a motor vehicle parked on the property, belonging to another person. Upon the arrival of two police officers in response to an emergency call from the women, the applicant threw projectiles at the police, threatened them with a steel pole and damaged their vehicle. The applicant was aged 23 years and his partner was aged 24. They had been in a volatile relationship over approximately the preceding six years. The applicant had two prior convictions for domestic violence against the partner. The aggregate sentence imposed was 5 years' imprisonment with a non-parole period of 2 years and six months. The Court held (Adamson JA, Wright and Fagan JJ), granting leave to appeal but dismissing the appeal: The sentence was not manifestly excessive. JUDGMENT 1. THE COURT: The applicant seeks leave to appeal against a sentence that was passed on him in the District Court for domestic and personal violence offences, property offences and offences against police, committed by him at a residential property in Bourke early on the morning of 29 December 2021. The applicant was arrested sometime after 8:30 am on 29 December 2021 at the conclusion of a protracted violent incident that had lasted about 3½ hours. The applicant entered pleas of guilty to all charges in the Local Court on 25 August 2022 and he was sentenced by his Honour Judge J Smith SC on 15 September 2022. An aggregate sentence of 5 years' imprisonment with a non-parole period of 2 years and 6 months was imposed. The commencement of the sentence was backdated to the date of the applicant's arrest. 2. The sole ground of appeal for which leave was sought was that the sentence was manifestly excessive. After hearing the application on 14 August 2023 this Court made the following orders: 1 Leave to appeal granted. 2 Appeal dismissed. The Court's reasons were reserved and are now published, as follows. 1. The applicant is a young indigenous man who was aged 23 years at the time of the incident that gave rise to the charges. In 2015 he commenced an intimate relationship with the principal victim of the offending, Ms Ella Boyd. Ms Boyd is slightly older than the applicant but both of them were 17 years old when they commenced their relationship. The first child, a boy, ZE, was born in 2017 and was aged 4 years at the time of the incident. Their second child, NE, was born in 2020 and was aged seven months at the time. 2. Up to June or July 2021 the applicant and Ms Boyd lived together in Bourke. Their relationship was volatile and the applicant's conduct towards Ms Boyd became violent, resulting in convictions for the following offences: On 3 July 2017 the applicant committed an assault occasioning actual bodily harm upon Ms Boyd. He was sentenced on 19 March 2018 to 12 months imprisonment suspended on terms that he enter into a bond to be of good behaviour. On 28 February 2020 the applicant assaulted Ms Boyd occasioning actual bodily harm. The circumstances involved a contravention of the apprehended domestic violence order. The applicant was convicted of both offences in Bourke Local Court on 2 November 2020. The aggregate penalty imposed was a 9-month intensive correction order, commencing 2 November 2020 and expiring on 1 August 2021. 1. From 2 November 2020 a final apprehended domestic violence order was in place for the protection of Ms Boyd, containing prohibitions against the applicant assaulting, threatening, harassing or intimidating Ms Boyd or intentionally or recklessly damaging her property. The order prohibited the applicant from approaching or being with Ms Boyd within 12 hours of drinking alcohol. 2. In mid-2021 Ms Boyd ended the relationship and moved to Orange with their two children, the younger of whom was then only about two months old. The applicant remained living in Bourke. In December 2021 Ms Boyd returned to Bourke to stay with the applicant's sister, Nakia Cahill, and Ms Cahill's children. 3. At about 5:00 am on 29 December 2021 the applicant arrived at Ms Cahill's house heavily affected by alcohol and holding the neck of a broken beer bottle with a jagged edge. He and Ms Boyd commenced arguing. His attendance at the house in the circumstances constituted sequence 3, breach of apprehended domestic violence order, s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). 4. The applicant directed Ms Boyd to go into her bedroom. She saw the broken bottle in the applicant's hand and, in fear, followed his direction. The younger child, then aged 7 months, was asleep on the bed. The applicant demanded to know with whom Ms Boyd had been sleeping. They both lay down, Ms Boyd trying to calm the applicant's agitated state. When the applicant put the bottleneck on the bed, Ms Boyd threw it on the floor. The applicant retrieved it, threatened to kill either himself or Ms Boyd, and slashed and stabbed her with the sharp glass edge. Subsequently at Bourke Hospital her injuries were recorded as deep lacerations, in each case penetrating the dermis, epidermis and adipose tissue, to her left wrist, left lower forearm (>7cm) and left lower leg (>7cm). Photographs were in evidence showing the deep, irregular wounds: seq 12, reckless wounding, s 35(4) of the Crimes Act 1900 (NSW). 5. In the course of struggling with Ms Boyd on the bed at this time, the applicant bit her left breast, leaving a bruise that was also identified at the hospital and recorded in a photograph: seq 11, assault occasioning actual bodily harm, s 59(1) of the Crimes Act. 6. Ms Boyd tried to persuade the applicant to leave. Ms Cahill, who had been sleeping, came out of her bedroom and also told the applicant to leave. He threatened to kill Ms Boyd and anyone who got in his way, including a direct threat that he would kill Ms Cahill and that he would smash a house: seq 6, intimidation, s 13(1) of the Crimes (Domestic and Personal Violence) Act. 7. The applicant took a child's scooter outside the house and threw it through the kitchen window, shattering the glass. He threw bricks at the house and struck it with a long metal pole, smashing a hole in the external fibre board cladding. He threw numerous objects through the broken window, including a metal pole, a large piece of timber and terracotta pots. The applicant turned to a car that was parked on the property, belonging to a former resident. He struck it repeatedly with the brick, denting every panel then breaking every window including the front and back windscreens. The combined damage to the house and to the vehicle constituted seq 5, recklessly damage property, s 195(1) of the Crimes Act. 8. The two women locked themselves and their children in the bedroom to shelter from this sustained attack. They called the emergency number and requested the attendance of police. They said that the applicant was in the house and trying to get into the bedroom. Two senior constables arrived in a marked vehicle at 8:30 am. They could hear the women screaming and crying in the house. The applicant was standing in the front yard continuing to smash the motor vehicle. Ms Cahill appeared at the front door more than once and on each occasion the applicant turned to face her and she retreated. 9. The police officers announced themselves, in response to which the applicant said, "I'm going to fucking kill you" and threw a brick in their direction. He then picked up another heavy object, prompting one of the officers to get back into the passenger seat of their vehicle and use the radio to call for backup. The applicant threw a brick through the rear passenger window of the police vehicle, smashing it. The officer climbed across the centre console and exited via the driver door. Both officers took cover behind the vehicle, drew their firearms and ordered the applicant to lie on the ground. He walked away, picked up a large metal pole, held it aloft like a weapon and repeated his threat, "I'm going to fucking kill you". He then walked towards the house. When the officers followed he turned towards them, brandishing the weapon: seq 7, use offensive weapon with intent to prevent lawful apprehension, s 33B(1)(a) of the Crimes Act; seq 8, recklessly damage property, s 195(1) of the Crimes Act. 10. The applicant's brother arrived and was able to calm him sufficiently for the police officers to be able to approach safely and make the arrest. 11. The learned sentencing judge nominated the following indicative sentences: Seq 3: contravention of apprehended domestic violence order – 4 months. Seq 12: reckless wounding of Ms Boyd – 2 years and 7 months with a non-parole period of 1 year and 6 months. In this indicative sentence there were taken into account on a Form 1: seq 6 (the intimidation offence concerning Ms Cahill) and seq 11 (the assault constituted by biting Ms Boyd's breast). Seq 7: use of offensive weapon to prevent apprehension – 2 years and 3 months. In this indicative there was taken into account on a Form 1: seq 8 (reckless damage to the police vehicle). Seq 9: assault police officer – 1 year and 1 month. Seq 5: reckless damage to the house and the private vehicle on the property – 1 year and 1 month. 1. The sentencing judge made the following findings favourable to the applicant concerning his subjective case: The offender's childhood was marred by disadvantage. He was born in Sydney and lived with his family in government housing. His parents both drank a lot on the weekends and had violent arguments. The offender recalls being traumatised and crying all the time, going into another room to be comforted by older siblings. In his evidence the offender recognised this is how his own children must have felt on 29 December 2021. When the offender was 12 [his] father went to prison because of the domestic violence. This had a devastating effect on the family. The offender and his brother were sent to Bourke to live with their father's mother. And his mother moved to Willcannia with his two sisters and two younger brothers. The offender had aunts who played a mother role, but he missed his mother and siblings. The offender did not do well at school but was a very good rugby league player representing the State and touring internationally. He went on to play for the Bourke Warriors. In light of this evidence the Crown accepts that [the applicant's] moral culpability is reduced by his disadvantage and that Bugmy/Fernando considerations are enlivened. This would normally mean that the general deterrence and denunciation have a reduced role to play in the sentencing exercise. … [As] submitted by the Crown, it does not mean that they have no role to play. 1. The learned judge accepted the opinion of a psychologist that the applicant's disadvantaged background and early life experiences had given rise to diagnosable disorders that significantly impacted his ability to make informed decisions and to exercise appropriate judgment. 2. The fact that the offences were committed while on conditional liberty was taken into account. On the other hand the learned judge accepted that the applicant's remorse was genuine and that he had reasonably good prospects of rehabilitation, subject to his ability to control his alcohol abuse. While noting the applicant's criminal record, including past instances of violence against Ms Boyd, his Honour fairly recognised that there had been "relatively long periods in the offender's life without offending". A discount of 25% was allowed for the applicant's pleas of guilty. His Honour found special circumstances on the basis, first, that the applicant was at a critical point in taking control of his life and needed extended time under supervision to assist with that; secondly, that his time in custody on remand had been onerous due to Covid-19 restrictions and the lack of access to rehabilitative resources in prison; thirdly, that this is his first time in custody and an extended period on parole for reintegration into the community would be desirable. 3. In considering whether the aggregate sentence was excessive we note the following salient features of the case, most of which were expressly addressed by the learned judge in his remarks. First, the applicant's past domestic violence against Ms Boyd was dealt with in the Local Court at Bourke with considered and graduated penalties, designed to bring home to the applicant the gravity of his behaviour while at the same time affording him the opportunity to reform under the guidance of Community Corrections supervision. The applicant's violent eruption of 29 December 2021 proved these past orders to have been an insufficient encouragement to him to refrain from violence towards his former partner and made a term of full time custody, of some length, necessary – for the protection of the victims, for both general and specific deterrence, for denunciation of the conduct and for punishment. 4. Secondly, the renewed violence of the applicant was obviously terrifying for Ms Boyd, from the moment he arrived armed with the broken bottle and as he inflicted serious wounds upon her, threatened to kill her and put her and the other occupants of the house under siege. 5. Thirdly, the events must also have been terrifying to the very young children who were present. This was an escalation of the domestic violence that had taken place on and off over more than three years, all of it having the capacity to cause lifelong psychological damage to the applicant's children, thus carrying on into the next generation the same trauma that the applicant pleads as having marred his own life. 6. Fourthly, the personal violence was not only directed to Ms Boyd but also to the applicant's sister, whom he threatened and intimidated. The terror of the experience would have been felt by her children. 7. Fifthly, the wanton damage done by the applicant to the home in which Ms Boyd, Ms Cahill and their children were residing and to the vehicle on the property, belonging to yet another victim of this rampage, would necessarily constitute a significant economic impact. It is apparent from the photographs that the home is a modest one and there is no reason to think that any of the victims could readily absorb the cost of the damage. 8. Sixthly, the actions of the applicant towards the attending police were serious and dangerous. The police were there to intervene for the protection of vulnerable women and children. The arrival of police should have brought the applicant to his senses but instead he responded with further violence that threatened their safety and resulted in significant damage to their vehicle. 9. Having regard to the number of victims affected, in different ways and to different degrees, and the extremity of the applicant's actions throughout the episode, a significant degree of notional accumulation was called for in arriving at the aggregate sentence. The accumulation reflected in the sentencing orders made by the learned judge was well justified. The applicant's submissions on the leave application concentrated upon his disadvantaged background, his relatively young age, his lack of previous experience of full-time custody, his expressed desire to improve himself and the support that he apparently enjoys from members of his extended family. Full recognition of those subjective factors is reflected in the sentence that that the judge imposed, particularly in the shortening of the non-parole period and the consequent opportunity for 2 years and 6 months of supervision in the community, if the applicant is of good behaviour and is able to secure release to parole at the earliest date upon which he will be eligible. 10. In our view the head sentence of 5 years' imprisonment with a substantial allowance for special circumstances, resulting in a non-parole period of only 50% of the full term, was not manifestly excessive. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 August 2023