Background
CR pleaded guilty to six offences committed against his former intimate partner between 7 and 11 January 2024. They included contravening an apprehended domestic violence order, intimidation, intentional choking without consent, two assaults occasioning actual bodily harm, and perverting the course of justice. The conduct included chasing and throwing the complainant onto pavement, choking her until she nearly lost consciousness, coercing her to give police a false account, and later subjecting her to a sustained assault.
The District Court imposed an aggregate sentence of seven years’ imprisonment, with a non-parole period of four years and six months. CR sought leave to appeal, arguing that the sentencing judge had improperly treated actual or threatened violence under s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) as aggravating all six offences, including the choking and assault offences for which violence was already an element. Alternatively, he argued that the judge had failed to explain adequately how the statutory aggravating factors applied to each offence.
The Court’s Holding
The Court granted leave and upheld the first ground. The sentencing remarks, read without any express qualification, conveyed that actual or threatened violence had been treated as an aggravating factor for the choking and assault offences even though violence was integral to those offences. That amounted to impermissible double counting, applying Holten v R [2005] NSWCCA 408.
By majority, Stern JA and Chen J rejected the inadequate-reasons ground, concluding that the reasons were sufficient although they disclosed the error identified under ground one; Fagan J would also have upheld the alternative ground. Nevertheless, all three judges agreed that no lesser sentence was warranted. After considering the seriousness of the offending, CR’s prior domestic-violence record, his commission of the offences shortly after release on parole, his post-offence threats, his disadvantaged background, and the sentencing judge’s favorable allowance for concurrency, the Court dismissed the appeal and left the original sentence intact.
Key Takeaways
- A sentencing court must determine separately whether each statutory aggravating factor legally and factually applies to each offence.
- Actual or threatened violence cannot be counted as an aggravating factor when violence is already an element of the offence.
- Establishing sentencing error does not guarantee resentencing or a reduced sentence; the appellate court must still be satisfied that a lesser sentence is warranted in law.
Why It Matters
The decision reinforces the need for precision when sentencing multiple offences under an aggregate sentence. A compendious list of aggravating factors may create reversible error if it suggests that a factor was applied to offences for which it was unavailable.
It also illustrates the practical limit of identifying such an error: where the overall sentence remains justified by the offending and the offender’s circumstances, an appellate court may grant leave yet dismiss the appeal without reducing the sentence.