Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Roberts v R [2012] NSWCCA 232 Hearing dates: 15 February 2012 Decision date: 15 February 2012 Before: McClellan CJ at CL at [1] Hidden J at [26] Rothman J at [27] Decision: Leave to appeal refused. Catchwords: CRIMINAL LAW - appeal - sentence - application for leave to appeal - whether sentencing judge erred in finding that offence was "at least in the middle of any scale" - where offence involved remaining on premises with weapon with intent to intimidate victim - finding of sentencing judge in relation to objective seriousness was open - whether sentence was manifestly excessive - where offence committed in breach of ADVO - where there was history of domestic violence perpetrated against victim - where applicant has serious criminal history - sentence not manifestly excessive - leave to appeal refused. Legislation Cited: Crimes Act 1900 Summary Offences Act 1988 Crimes (Domestic and Personal Violence Act) 2007 Cases Cited: Ayoub and El Mazri v R (2010) NSWCCA 196 R v Hamid (2006) NSWCCA 302 The Queen v De Simoni (1981) 147 CLR 303 Category: Principal judgment Parties: Colin Ronald Roberts (Applicant) Crown Representation: D O'Neil (Applicant) N J Gouda (Crown) Legal Aid of NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2010/65265 Decision under appeal Date of Decision: 2010-12-08 00:00:00 Before: McLoughlin DCJ Judgment 1McCLELLAN CJ at CL: The applicant pleaded guilty to one count of remaining in a building with intent to commit an indictable offence, namely intimidation, contrary to s 114(1)(d) of the Crimes Act 1900. The offence carries a maximum penalty of 7 years imprisonment. 2When sentenced the applicant asked that the following matters be included on a Form 1: i.intimated police officer in execution of duty (s 61 Crimes Act 1900); ii.have custody of an offensive implement in a public place (s 11B Summary Offences Act 1988); iiicommon assault (s 61 Crimes Act 1900); ivcontravene apprehended domestic violence order (s 14(1) Crimes (Domestic and Personal Violence Act) 2007). 3The applicant was sentence to a non-parole period of 2 years and 3 months with a balance of term of 9 months. He seeks leave to appeal against his sentence and raises 2 grounds of appeal. Ground 1:His Honour erred in finding that the offence was at least in the middle of any scale. Ground 2:The starting point of 4 years imprisonment was manifestly excessive. 4The sentencing judge was provided with an agreed statement of facts. It indicates that the victim, Leanne Jones, and the applicant had been in an on-again, off-again defacto relationship for the past 23 years. Domestic violence against the victim featured in this relationship and the applicant has been convicted of a number of personal violence offences against the victim. As at 14 March 2010 the applicant was subject to an Apprehended Domestic Violence Order (ADVO) imposed for the victim's protection with the following conditions: 1(a)Not to assault, molest, harass, threaten or otherwise interfere with the protected person or a person with whom she has a domestic relationship. 1(b)Not to engage in any other conduct that intimidates the protected person or a person with whom she has a domestic relationship. 1(c)Not to stalk the protected person or a person with whom she has a domestic relationship. Not to approach the protected person or any such premises or place at which the protected person from time to time reside or work within twelve (12) hours of consuming intoxicating liquor or illicit drugs. Not to destroy or deliberately damage or interfere with the property of the protected person. 5On 14 March 2010 the applicant and the victim attended the 21st birthday party of their daughter's partner. After the party they returned to their residence. At about 8 pm they became involved in a heated argument. The applicant produced a tomahawk approximately 30 cm in length with an axe head approximately 10 cm in length. He refused to leave the premises and the victim contacted triple-0 on a number of occasions. 6The applicant pleaded guilty in the Local Court and adhered to his plea in the District Court. The sentencing judge provided a 25 percent discount for the utilitarian value of his plea. 7The applicant has a significant criminal record for crimes of violence and threats of violence to the victim, police officers and others. It is apparent that much of his offending occurs at times when he is under the influence of intoxicating liquor. The applicant was subject to four bonds to be of good behaviour for a period of 12 months. Three of those bonds were as a result of breaches of apprehended violence orders and one for intimidating the police. They were imposed only 3 weeks before the present offences were committed. 8The applicant was born in 1971 and was 39 years of age when sentenced. He was first convicted in 1986 in relation to an offence of break, enter and steal. In the following years he committed various offences until, in 1992, he was sentenced for a more serious offence of robbery and attempted robbery whilst armed. He has various driving offences and drug related offences. His driving offences include offences relating to alcohol. 9The applicant gave evidence before the sentencing judge. His Honour recorded that the applicant "spoke of having seen the light and being avowed to give up alcohol." The sentencing judge accepted the applicant as being genuine but doubted whether he would adhere to his vow of abstinence. Although his Honour was asked to consider making a finding of special circumstances, his Honour concluded that the statutory period of parole was appropriate in the circumstances. 10The sentencing judge observed that the crimes for which the applicant was to be sentenced were: "Prevalent and very serious indeed and carried out by the offender in continuation of similar criminality of violence and threats of violence to the victim, others and police officers being courses he has embarked upon over many years whilst under the influence of intoxicating liquor." 11His Honour also said: "I regard this offence at being at least in the middle of any scale constructed for such offences and this offence and the matters contained on the Form 1 schedule should all result in prison sentences." Ground 1 12In support of this ground it was submitted on behalf of the applicant that s 114(1) of the Crimes Act provides for a variety of offences. It was submitted that s 114(1)(d) encompasses conduct involving unlawful and/or forceful entry onto premises with intent to commit more serious offences against multiple victims and, accordingly, it was erroneous of his Honour to conclude that the offence was in the middle of any scale for such offences. 13Section 114(1)(d) provides that a person commits an offence if he or she "enters or remains in or upon any part of the building or any land occupied or used in connection therewith with intent to commit an indictable offence in or upon the building." 14It is correct that the offence would encompass conduct more serious than that committed by the applicant but this would most likely involve offences marked out by aggravating circumstances. An offence is not mitigated by the absence of features that would give rise to a more serious offence and when considering the range of offences within s 114(1)(d) it is important to bear in mind the constraints upon any finding of the seriousness of the offence resulting from the principles discussed by the High Court in R v De Simoni (1981) HCA 31; (1981) 147 CLR 383. 15The applicant further submitted that the indictable offence nominated for the s 114(1) charge was "intimidation" and submitted, that being an offence with a maximum penalty of 2 years imprisonment, it could never give rise to an offence under s 114(1)(d) falling within the middle of the range. In the course of oral submissions this submission, as made in writing, was withdrawn. It is not correct. The indictable offence nominated in the charge was the offence of intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 which carries a maximum penalty of 5 years imprisonment. 16With respect to the applicant's primary submission, the determination of the seriousness of an offence is an evaluative exercise which must be conducted by the sentencing judge. It is based on the circumstances of the offence, which require an evaluation by the sentencing judge having regard to the particular conduct of the offender being sentenced. This Court will only intervene in the assessment of the seriousness of the offence where there is identifiable error: Ayoub and El Mazri v R (2010) NSWCCA 196 at [25], and there are many other cases to similar effect. 17In the present case the applicant took possession of a tomahawk during the argument with the victim. He refused to leave the premises and prevented the victim from leaving. He punched her and held the blade of the tomahawk to her throat. When leaving the premises he called her a "slut" and a "dog." His Honour did not suggest that the offence was the worst of its type. I am in no doubt that it was open to his Honour to describe the offence as at least falling within the middle of any scale of seriousness. Ground 2 18As I have previously indicated his Honour provided a 25% discount for the utilitarian value of the applicant's plea with a consequence that he must have identified a head sentence of 4 years as appropriate but for that plea. It was submitted that this notional starting point was excessive having regard to the relevant statistics published by the Judicial Commission. 19It was further submitted that his Honour erroneously had regard to the applicant's criminal history and his breach of conditional liberty when assessing the seriousness of the offence. In support of this contention the applicant referred to the following remark of the sentencing judge: "Only a sentence of imprisonment will satisfy the requirements for general and specific deterrence in this case. Taking into account the matters on the Form 1 schedule, conviction would in the view of this Court, result after trial, in a sentence of some 4 years imprisonment, bearing in mind the use of a weapon and the repetition with which these offences have been carried out against his partner." 20I am not persuaded that in either of these respects advanced by the applicant his Honour fell into error. Although when regard is had to the statistics produced by the Judicial Commission the starting ponit for the sentence is apparently high, it is important to bear in mind the circumstances of the offence and of the applicant. As I have earlier indicated, the offence was serious. When sentencing the applicant his Honour was required to impose a sentence which adequately reflected the circumstances in which the offences were committed and recognised the applicant's (in the words of the High Court) "manifestation of a continuing attitude of disobedience of the law", Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 4 (Mason CJ, Brennan, Dawson and Toohey JJ). So much was made plain from his significant record for offences indicating an increasing seriousness of criminal activity. 21When determining the appropriate sentence his Honour correctly identified the seriousness of the offence but also recognised the matters on the Form 1 and the need for general and specific deterrence. I do not understand anything his Honour said to indicate that his Honour had regard to the applicant's criminal history or his breaches of conditional liberty when considering the objective seriousness of the offence as opposed to the appropriate sentence for the applicant having regard to all the circumstances. 22The applicant's counsel was critical of the fact that his Honour referred to the applicant's criminal record and breach of bonds before indicating that the offence was "in the middle of any scale constructed for such offences." I am satisfied that this is a misreading of his Honour's remarks. His Honour said after discussing the applicant's criminal record and previous behaviour that he regarded the offence as being in the middle of the scale in a manner clearly directed towards the objective circumstances. I am not persuaded that his Honour erroneously allowed the subjective matters to influence his finding in relation to the seriousness of the offending. 23Even if I was satisfied that an error had occurred, which I am not, I am of the view that the sentence which his Honour imposed was appropriate. The applicant's conduct was serious and the appropriate sentence required consideration to be given to the matters on the Form 1. The offence was committed in the context of a history of domestic violence. In that respect in R v Hamid [2006] NSWCCA 302; (2006) 164 CLR A Crim R 179 Johnson J said at [86]: "In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important." 24The applicant has a serious criminal history. He was 39 years of age at the time of the offence, and although he promised to abstain from alcohol, his Honour was not confident that this would occur and, accordingly, his prosects of rehabilitation are uncertain. The offence was committed in breach of two forms of conditional liberty which were imposed for the victim's protection, which included the Apprehended Domestic Violence Order and 3 bonds to be of good behaviour. The applicant was also subject to a 12 month bond to be of good behaviour for intimidating a police officer in execution of his duty. 25In the circumstances I find that no lesser sentence is warranted. However, the applicant was in my opinion so devoid of merit that I refuse leave to appeal. 26HIDDEN J: I also see no error in his Honour's approach. Counsel for the applicant placed some emphasis on his evidence in which he expressed his determination to reform. It is apparent to me, however, that his Honour did have regard to that evidence and gave it the weight it deserved. I agree with the order proposed. 27ROTHMAN J: I agree with the Chief Judge at Common Law and the additional comments of Hidden J. 28McCLELLAN CJ at CL: The orders of the court are as I have indicated. ********** 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: 19 April 2013