Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McLaughlin v R [2013] NSWCCA 152 Hearing dates: 24 April 2013 Decision date: 03 July 2013 Before: Latham J at [1] Button J at [2] Barr AJ at [58] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW - application for leave to appeal against severity of sentence -sentencing judge erred by finding offence aggravated by commission in presence of child - no lesser sentence warranted at law - sentence not manifestly excessive Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Cases Cited: Gore v R; Hunter v R [2010] NSWCCA 330; (2010) 208 A Crim R 353 R v Dunn [2004] NSWCCA 41; (2004) 144 A Crim R 180 R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551 R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 R v Seymour [2012] NSWSC 1010 Category: Principal judgment Parties: Francis Downie McLaughlin (applicant) Crown (respondent) Representation: Counsel: H Cox (applicant) N Adams SC, J Davidson (respondent) Solicitors: Legal Aid NSW (applicant) Solicitor for Public Prosecutions File Number(s): 10/329464 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-04-05 00:00:00 Before: Syme DCJ File Number(s): 2010/329464 Judgment 1LATHAM J: I agree with Button J. 2BUTTON J: On 5 April 2012 in the District Court of New South Wales at Penrith, her Honour Judge Syme sentenced Francis Downie McLaughlin ("the applicant") for three offences. They were: an assault occasioning actual bodily harm committed on 2 March 2010; a further assault occasioning actual bodily harm committed on 18 August 2010; and a common assault committed on 26 September 2010. The maximum penalty for the first two offences was imprisonment for 5 years and the maximum penalty for the common assault was imprisonment for 2 years. None of the offences attracted a standard non-parole period. All of the offences could have been dealt with in the Local Court. 3Her Honour imposed the following sentences of imprisonment. With regard to count 1, the first assault occasioning actual bodily harm, a fixed term of imprisonment for 15 months was imposed, to date from 5 April 2012. With regard to count 2, the second assault occasioning actual bodily harm, a head sentence of imprisonment for 2 years with a non-parole period of 12 months was imposed, to date from 5 August 2012. With regard to count 3, the common assault, a fixed term of imprisonment for 1 year was imposed, to date from 5 June 2012. 4Accordingly, a total head sentence of imprisonment for 2 years 4 months with a total non-parole period of 1 year 4 months was imposed. A diagram annexed to this judgment sets out the sentence structure in a readily comprehensible form. 5Special circumstances were found that permitted a variation of the ratio between the total non-parole period and the total head sentence; if that had not been the case, the total non-parole period would have been 1 year 9 months. 6The applicant seeks leave to appeal against those sentences. Objective features 7These were established by agreed facts. 8In 2010, the applicant was living in Blaxland with his then de facto partner ("the victim"). She had met the applicant when his musical band was touring in Tasmania in 2008. The victim and her young son (whose age was not detailed in the proceedings on sentence, but who was clearly a child) had moved from that State to live with the applicant in the Blue Mountains in 2009. The victim was vulnerable and isolated, in that she was unemployed, cut off from friends and family in Tasmania, and suffers from a physical disability to her leg. 9With regard to count 1, on about 3 March 2010, the applicant and the victim were at home. An argument developed. The victim absented herself from the room, and went to her bedroom and lay on the bed. The applicant entered that bedroom and dragged her off the bed by her feet, causing her to fall from the bed. As she did so, her jaw hit the edge of the bed, forcing her to bite into her lip. Her lip bled and her jaw was bruised. 10With regard to count 2, on 18 August 2010 the victim and the applicant were at home arguing. The applicant hit the victim to the side of the head near her eye, causing an injury there. The offence also indirectly caused bruising to her elbow and knee. 11With regard to count 3, on the evening of 26 September 2010 the applicant and the victim commenced to argue at home about an apprehended violence order ("AVO") that was in force to protect the victim from the applicant (a topic to which I shall return). The young son of the victim was sleeping in the bedroom. The victim walked away from the argument and entered that bedroom. The applicant grabbed the victim by the hair and dragged her back. He then grabbed her by the throat, and as a result she fell to the floor. 12In a victim impact statement that was delivered orally in court, the victim detailed the psychological effects that the offences of the applicant had had upon her. She explained that she had "not slept properly" for quite some time. She also had suffered from "severe panic attacks". She was unable to tolerate being touched for at least 18 months after the commission of the offences, and she continued to have issues in that regard as at the date of sentence. Subjective features 13The applicant pleaded guilty on the morning of the trial, and received a 10 per cent discount for the utilitarian value of his pleas as a result. Neither party to the appeal impugns that discount. 14Aged 41 as at the date of sentence, the applicant was born in Scotland and came to Australia as a toddler. He had enjoyed a stable and happy upbringing. He left school in Year 11, and had been employed in most of the years since then. At the time of the offences he was the lead singer of a popular musical band that seemed destined for greater success. He had spent some time employed in logistics, and was very highly regarded as a worker. 15The applicant gave evidence that he accepted that he had suffered from a serious problem with alcohol and control of his anger. Prior to the date of sentence he had sought counselling, and had found that to be very beneficial. 16His criminal record was short but significant. In 1991 he was fined for offensive conduct. In 1992 he was placed on a bond for 12 months for the offence of common assault. In 2000 he was fined and placed on an apprehended violence order ("AVO") for common assault. The facts of the matter were placed before her Honour. Briefly, the applicant had struck a woman with whom he was then in a relationship to the head whilst verbally abusing her in the home that they shared. That victim was not the victim in the matter under appeal. All of this was observed by police who had attended the premises. The applicant admitted the offence to the police. 17On 17 April 2010 (that is, about six weeks after the commission of count 1, and before the commission of count 2), the applicant assaulted the victim in the matter under appeal, and inflicted actual bodily harm. For some reason the facts of that matter were not before her Honour, and are therefore not known to this Court. The matter was dealt with on 22 June 2010 (again, before the commission of count 2), when the applicant pleaded guilty and received a 12 month bond with supervision. He was also placed on an AVO with regard to the victim. 18It follows that counts 2 and 3 were offences of violence committed in breach of a bond and an AVO imposed as a result of an offence of violence against the same victim only months beforehand. Grounds of appeal 19Four grounds of appeal were originally notified, but two were maintained at the hearing: 1. Her Honour erred when she found that the offences were aggravated by the fact that they took place in 'the generalised presence of a child under the age of 18 years.' 3. The sentences imposed were manifestly excessive. 20I shall deal with them in that order. Ground one "Her Honour erred when she found that the offences were aggravated by the fact that they took place in 'the generalised presence of a child under the age of 18 years.'" Background and submissions 21In the remarks on sentence, her Honour said: "Another potential aggravating circumstance to take into account is whether the offence was committed in the presence of a child under the age of eighteen years. There is no evidence before me that the child who was a family member actually saw the offences as they were committed, however, the effect of domestic violence situations on children whether they actually witness the violence or not is well documented. It creates secondary damage in children which can frequently disrupt their development. Therefore, in my view the generalised presence of a child of under the age of eighteen years is an aggravating circumstance in these matters, notwithstanding the fact that I acknowledge the child did not physically see the offence being committed. Therefore it is an aggravating circumstance but perhaps of lesser importance than it might have been if the child had witnessed the offence. Nevertheless it is worth stating." 22Counsel for the applicant submitted that it was an error for her Honour to take into account, as an aggravating feature pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999, the commission of the offence in the presence of a child. She submitted that, with regard to the first two counts, there was no evidence that the son of the victim was present. Although with regard to the third count there was evidence that the child was in the bed in the bedroom, there was no evidence as to whether he was awake or not during or after the commission of the offence. If the child had been awake, it was accepted that count 3 would have been committed in his presence. 23Reliance was placed upon the decision of this Court in Gore v R; Hunter v R [2010] NSWCCA 330; (2010) 208 A Crim R 353 and of Price J in R v Seymour [2012] NSWSC 1010. In short, it was submitted that the sentencing Judge had found an aggravating feature established that, in truth, could not be made out on the evidence. 24The Crown submitted that the language used by her Honour was equivocal. Senior counsel submitted that it was by no means clear that the presence of a child had been taken into account as an aggravating feature with regard to any offence. The ancillary position of the Crown was that, if error were established, there would be no reduction in any sentence as a result of consideration of s 6(3) of the Criminal Appeal Act 1912. Determination 25Section 21A(2) of the Crimes (Sentencing Procedure) Act is as follows: "(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: ... (ea) the offence was committed in the presence of a child under 18 years of age, ..." 26It is true that the remarks of her Honour with regard to this aspect do not make it absolutely clear whether the presence of the child was relied upon by her Honour as an aggravating feature. 27However, reading the remarks on sentence as a whole, I consider that it is reasonably well established that her Honour took into account as an aggravating feature the "generalised presence" of the child. 28In Gore v R; Hunter v R at [104], this Court called for a strict approach to proof of this aggravating feature pursuant to s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act. In that case Howie AJ (with whom Handley AJA agreed, Adams J dissenting in the outcome) said at [103]-[104]: "The common law did not specifically identify as an aggravating factor that an offence was committed in the presence of a child, so no guidance is given to how the section should be interpreted from that source. However, 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. I accept that generally the supply of drugs in the presence of a child would be a factor of aggravation. Again whether such a factor is aggravating in a particular case and how aggravating it is, will depend upon the nature of the offence charged and the likelihood that the child will be affected by it, having regard to all the circumstances including the child's age. No regard seems to have been given to such considerations in this case either by the parties or the court. But attention must be given to the words actually used in the aggravating factor in the provision, the policy behind it and the fact that the Crown is to prove a matter of aggravation beyond reasonable doubt. As Adams J points out, there was no evidence that any offence had been committed in the presence of Ms Hunter's son. The evidence given by Ms Hunter, as set out in the judgment of Adams J, could not have supported the allegation and yet the prosecutor was prepared to leave the evidence in that state." 29Although Adams J was in dissent with regard to the outcome of that case, his Honour made similar observations to those of Howie AJ at [89]: "Furthermore, the finding that the offences were carried out 'in company, in the presence of the offender's teenage son' was not only not alleged by the Crown but was not justified by the evidence. In this respect the applicant said that her son was living with her 'at the time of these drug offences' and agreed that he had been 'exposed ... to drug supply'. I do not see that this was an admission that he had actually been present when drugs were supplied, still less that he was present when the offences for which she was charged had occurred. Nor did the Crown prosecutor question her about these possibilities. There is no mention in the police facts that her son was present at the time of the offences for which the applicant was charged. There was therefore no evidentiary basis for a finding under s 21(2)(ea) of the Sentencing Act that the offences were 'committed in the presence of a child under 18 years of age'. Had the applicant been charged with an offence under s 36Z of the Act of organising or conducting or (perhaps more appropriately) assisting in organising or conducting any drug premises then, if the child had access to the premises and, as a consequence of that access was exposed to a prohibited drug or 'a drug supply process' two offences would have been committed and the offender would have been liable, for a first offence, to a maximum penalty of 60 penalty points and/or imprisonment for 14 months. However, the applicant was not charged with that offence and, even if there was evidence justifying conviction of it, could not be sentenced for it." 30The observations of Howie AJ extracted above were recently quoted with approval by Price J in R v Seymour at [43]. On the evidence in that particular matter, his Honour was not satisfied that the aggravating feature had been proven beyond reasonable doubt. 31Turning to this matter, as to the third count, there was evidence on which it might have been open to her Honour to find that the child must have realised what was happening in his room even though he did not see the events. However, her Honour did not make such a finding and it follows that her Honour erred in taking into account that the offence was committed in the presence of the child, for that is what "generalised" presence must be taken to mean. 32As for the other offences, there was no direct evidence of the presence of a child. Although the remarks on sentence have a degree of ambiguity about them, I am prepared to accept the propositions of counsel for the applicant that her Honour did take the presence of the child into account as an aggravating feature; that her Honour did so with regard to those two offences as well; and that, applying the strict approach of this Court in Gore v R; Hunter v R to the question, that was an error. 33In short, I would uphold ground one. Whether a lesser sentence should be imposed by this Court as a result of that finding is another question entirely, to which I shall return later. Ground three "The sentences imposed were manifestly excessive." Background and submissions 34Counsel for the applicant accepted that a sentence of imprisonment was open to the discretion of her Honour. However, she submitted that the sentences, both individually and in the aggregate, are erroneously severe. 35She invited attention to the fact that the actual bodily harm inflicted on two occasions was at the lower end of the range, and required neither hospitalisation nor long-term treatment. The other offence featured no physical consequences. 36She also submitted that evidence before her Honour showed that the applicant is in truth a person of potential, who possesses very sound prospects for rehabilitation and who, at the time sentence, had already taken constructive steps to address his criminality. 37Counsel for the applicant referred to a table of decisions of this Court with regard to the offence of assault occasioning actual bodily harm. She submitted that that table demonstrates that the sentences imposed are manifestly excessive. 38The Crown submitted that the sentences were open to the discretion of her Honour, for the following reasons. 39First, although the physical injury may not have been great, the psychological injury was substantial. 40Secondly, the applicant had a prior conviction for an assault on a previous partner. 41Thirdly, her Honour found that, in light of his past behaviour, the prospects of rehabilitation of the applicant were in truth not good. 42Fourthly, a decision had been taken by the Crown to have the matter dealt with in the District Court, where there were, of course, maximum penalties higher than the jurisdictional limits that would have pertained if the matters had been dealt with in the Local Court. 43Fifthly, the pleas of guilty were entered on the day that the matter was listed for trial. 44Sixthly, her Honour found that the applicant had a propensity to commit acts of violence against women, and in light of his history that finding was open. 45Seventhly, counts 2 and 3 were committed in breach of a bond for an offence of violence against the same victim imposed months before. They were also committed in breach of an AVO with regard to the same victim imposed at the same time. Those were serious aggravating features that were appropriately reflected in the sentences imposed. 46Eighthly, special circumstances were found, affording the applicant a degree of leniency. 47Ninthly, no complaint had been or could be made about the structure of the sentences. Determination 48The approach of this Court to men who assault vulnerable women is well established and need not be elaborated upon by me: see R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551, R v Dunn [2004] NSWCCA 41; (2004) 144 A Crim R 180, and R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179. 49It is enough to say that, if an offender sees fit repeatedly to visit violence upon a woman in breach of a bond and an apprehended violence order imposed months before with regard to the same behaviour and the same victim, he should expect to be imprisoned, and not for an insubstantial period. 50The table of cases with regard to assault occasioning actual bodily harm is helpful, but not determinative. In particular, it does not reveal whether those applicants promptly breached a bond and an AVO imposed with regard to violence against the same victim. 51Finally, with regard to count 1, although luckily no serious physical injury was inflicted in this case, I consider that pulling a person off a bed by his or her feet is a very dangerous and frightening thing to do. 52I respectfully reject the proposition that the sentences imposed were manifestly excessive, whether individually or in the aggregate. I consider that they were well open to the discretion of her Honour. 53It follows that I would reject ground two. Section 6(3) of the Criminal Appeal Act with regard to ground one 54As against the possibility that error were established, counsel for the applicant read an affidavit detailing the progress of the applicant since he has been imprisoned. It shows that the applicant has been an excellent worker; has maintained his physical health; and has accommodation and immediate employment with his band available to him when he is released. He has also taken steps in custody to deal with his issues with alcohol. Finally, the evidence shows that the pending appeal of the applicant has blocked his progress to C3 classification. 55The applicant is to be commended on the steps towards rehabilitation he has undertaken in custody since the date of sentence. But nothing in that material, or in any of the objective and subjective material before her Honour, dissuades me from my affirmative satisfaction that no lesser sentence is warranted in law for these offences, whether individually or in the aggregate. One final matter 56Counsel for the applicant requested that this Court recommend to the Department of Corrective Services that a different approach be taken to the classification of prisoners who have an appeal to this Court pending. But I consider that we are not in a position to do so, knowing as we do nothing of the background of or reasons for policies and decisions to do with classification, whether generally or in particular cases. Orders 57I propose the following orders: (1)Leave to appeal granted. (2)Appeal dismissed. 58BARR AJ: I agree with Button J. ********** Amendments 04 July 2013 - 2012 amended to 2010 Amended paragraphs: 9 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: 04 July 2013