McFarland v R

HOEBEN CJ at CL:

The applicant was sentenced after pleading guilty in the Local Court to one charge of aggravated take and detain a person with intent to obtain advantage (the circumstances of aggravation being that actual bodily harm was occasioned to the victim and the advantage being psychological gratification) contrary to s 86(2)(b) of the Crimes Act 1900 (NSW) (Crimes Act); a second offence of assault occasioning actual bodily harm, contrary to s 59 of the Crimes Act and a third offence, contained on a s 166 certificate of driving with a high range prescribed content of alcohol in his blood contrary to s 110(5)(a) of the Road Transport Act 2013 (NSW). There was a Form 1 attached to the take and detain offence directed to one offence of common assault, contrary to s 61 of the Crimes Act.

It was common ground that with the exception of the driving offence, all of the offences were domestic violence related and were committed against the same victim, Ms AH, in a course of conduct on 2 November 2018.

The applicant was sentenced to an aggregate term of 7 years imprisonment, commencing on 18 May 2020 with a non-parole period of 4 years and 4 months, pursuant to a finding of special circumstances. The non-parole period will expire on 17 September 2024 and the aggregate head sentence expires on 17 May 2027.

The sentencing judge allowed a 25 per cent discount for the applicant’s early plea of guilty.

The maximum penalties applicable to each offence and the indicative sentences specified by the sentencing judge are set out in the table below.

The applicant relies on a single ground of appeal:

The factual background was set out in an Agreed Statement of Facts. The sentencing judge summarised the facts on pp2-5 of her Sentencing judgment. The following is a summary of those agreed facts.

At the time of the offence, the victim and the applicant had been in a de facto relationship for about nine months and were living together in Castlereagh. The applicant was 26 years of age and the victim 23.

On 2 November 2018, at approximately 6.30pm, the applicant drove the victim in his Ford Ranger to licensed premises in Richmond. They collected two of the victim’s friends from their home address along the way. All persons consumed a number of alcoholic drinks between 6.30pm and 10.30pm.

At about 11pm, the party commenced the journey home with the applicant as driver. He dropped the victim’s two friends at their home. He then continued to drive the victim towards their home in Castlereagh.

Along the way, the applicant and the victim started arguing. The argument escalated and the applicant drove past their home and continued driving towards Post Office Road in Castlereagh.

The applicant stopped the vehicle just before the electricity box on Post Office Road. The victim got out of the car from the passenger seat. The applicant grabbed her and forcefully pulled her back into the vehicle. (This was the offence of common assault on the Form 1.)

Once the applicant had forced her back into the vehicle, he punched the victim to the nose and face several times. These punches caused the victim’s nose to bleed. (This constituted the offence of assault occasioning actual bodily harm.)

The following narrative sets out those matters which made up the offence of aggravated take and detain person for advantage.

Having pulled the victim into the car, the applicant drove a short distance before stopping again in Post Office Road. The victim got out of the vehicle and was followed by the applicant. There was an altercation, which resulted in the applicant forcing the victim to the ground, on the side of the road and pinning her stomach to the ground with her head down. He then forced her onto her back, strangling her around the neck and placing his hand over her mouth and nose, to prevent her screaming.

The victim managed to break free from the applicant, at which point he grabbed her under her arms and by her hair. He dragged her to the driver’s seat of the vehicle. He pushed the victim so that her stomach was on the front seat and her head towards the gear stick and hand brake. The victim’s legs were left hanging out the side of the vehicle.

The applicant then sat on the victim, preventing her from getting out. He started driving the vehicle with the victim’s legs dragging along the gravel. He drove along Post Office Road before turning into Hinxman Road and on to Jolly Street. The distance of this journey was approximately 2.9 kilometres.

When the vehicle was travelling in Jolly Street, the victim fell out causing her to roll along the gravel onto the side of the road. The victim momentarily lost consciousness from the impact of landing on the ground. When she regained consciousness, she ran to a nearby house for assistance.

The applicant’s actions were witnessed. The witness described seeing a male holding onto a female from behind and trying to drag her into a car with the female struggling and screaming “Please, help me”. She saw the applicant drag the victim into the car, with the driver’s side door still open as he drove away. The witness described seeing the vehicle swerving along Post Office Road and heading towards Castlereagh Road.

A second witness described being at home in Post Office Road and hearing a female scream “Help, please help me”. The second witness saw the Ford Ranger pull over on the road and then accelerate towards Penrith. The driver’s side door was open and the vehicle drove away erratically before turning left onto Hinxman Road.

The victim attended Nepean Hospital Emergency Department where the following injuries were noted:

The injuries sustained by the victim required daily dressing of the wounds. As a result of the injuries to the victim’s lower leg, she was referred to the Burns Unit of Concord Hospital where on 16 November 2018, she underwent skin grafting to the right lower leg and outer ankle, amounting to three per cent of the total body surface area.

In her victim impact statement (VIS), the victim said that for three months she was confined to a wheelchair, she was unable to shower and even with assistance, going to the toilet was difficult. There were daily visits to the hospital to redo the bandages over her wounds. The skin graft was slow to take so that the victim had to wear a pressure garment on a daily basis. The victim has been left with permanent scarring on both legs. Apart from the physical scars that remain, the victim has difficulty standing for long periods and even putting on her socks. She suffers from post traumatic stress disorder and is on high doses of anti-depressant medication. At the time of sentence, she was being treated by a counsellor.

The applicant was arrested and taken to Penrith Police Station. His breath analysis produced a reading of 0.176 grams of alcohol per 210 litres of breath. (This constituted the offence of drive with high range PCA – on a s 166 certificate.)

The sentence proceedings were heard on 15 May 2020. The documents tendered included seven photographs of the victim’s injuries. It should be noted at this stage that the photographs vividly show the serious nature of the injuries suffered by the victim to her legs.

The applicant’s criminal history showed an offence of contravening an Apprehended Domestic Violence Order which applied to events which occurred in December of 2018. The record also included offences of destroy or damage property and common assault. These offences were committed against the applicant’s former domestic partner. The sentencing judge noted that the applicant’s previous offending disentitled him to leniency in relation to this offending.

The applicant gave evidence in the sentence proceedings. There was also a report from a psychologist, Ms Dombrowski, based on an interview which occurred in May of 2020. Ms Dombrowski reported that until the night of the incidents, the applicant had been working as a fulltime self-employed joiner and was living with the victim and her five year old daughter. He told Ms Dombrowski that because of his level of intoxication, he did not recall strangling or punching the victim, but accepted that he had done so. He said that he did not realise as he drove away that the victim’s legs were outside the vehicle.

It was the opinion of Ms Dombrowski that in giving that account, the applicant was attempting to minimise his offending behaviour. Mr Dombrowski was satisfied, however, that he was genuinely remorseful.

By way of further background, the applicant gave evidence that his parents separated when he was 12 months old and that he had grown up in Orange, living with his mother, and would regularly visit his father who was living nearby. He did not witness domestic violence between his parents but was exposed to their bickering. When he was aged nine, his father re-partnered and from the age of 12 to 18, the applicant lived with his father, stepmother and younger half-sister in Penrith. He did not form a close relationship to his stepmother. Ms Dombrowski noted that he remained in regular contact with his parents, who were supportive of him.

The applicant completed school to year 10 and then completed a four year apprenticeship as a joiner. He had been in regular employment since the age of 14.

Ms Dombrowski reported that the applicant had a small circle of personal friends and at the time of the psychological assessment, he had been in a new relationship with a woman for about five months. She was supportive of him, despite being aware of the circumstances surrounding the offending.

Ms Dombrowski reported that the applicant started drinking when he was aged 19. The applicant said that he mostly drank socially on weekends and did not typically engage in violent or irresponsible behaviour when intoxicated despite having previous convictions under those circumstances. He used alcohol heavily for a two week period before the present offending while on an overseas holiday with the victim. He said that after his arrest for the present offences, he had used alcohol heavily for 12 months in order to manage low mood. He has, however, now attended an outpatient alcohol detoxification program at St Vincent’s Hospital (December 2019) and since then, has been taking medication to manage alcohol cravings and had reduced his alcohol use. Ms Dombrowski noted that he had not reported any recent illicit substance use.

Ms Dombrowski opined that the applicant required treatment for the control of his alcohol use which was his “primary criminogenic need”. She noted that the applicant had never completed a psychotherapeutic substance abuse program and had limited insight into his substance use. She further recommended that the applicant needed to address the violent behaviour he demonstrated in his intimate/sexual relationships but particularly in a group treatment program for domestic violence offenders. Mr Dombrowski wrote that management of psychosocial factors such as stable housing, a return to employment and supportive peers would be important for the applicant’s rehabilitation.

In his evidence, the applicant confirmed that he had read the agreed facts and accepted them. He also confirmed that he had read the psychological report and that there was nothing in the history recorded by Ms Dombrowski which was incorrect or that he did not agree with. The applicant gave evidence that when he heard the victim read her VIS in court, this made him feel “terrible, hurt, sorry” because:

The applicant addressed the victim directly and told her that he was “truly sorry” for everything that she had gone through. The applicant agreed that he understood that the victim would be left with permanent scarring as a result of the injuries to her legs and that she would be experiencing ongoing psychological issues.

The applicant gave evidence that he understood that the offences were very serious and that the court did not really have a choice other than to impose a custodial sentence. When asked what benefit he might receive from the sentence and what he wanted to achieve upon his release from custody, he answered “Just to pull my head in line and think before I do things and make sure no-one’s hurt again. Make myself – better myself as a person”.

The applicant gave evidence that he did not drink anymore and did not have contact with the victim. The applicant agreed that he had some matters in the past where he was charged with domestic violence offences against the mother of his child. When asked what he had learned about domestic violence offending, he answered that “it just hurts everyone in the process, people suffer long term, and you won't be able to trust again and it will be hard to move forward”.

In cross-examination, the applicant accepted that the distance of 2.9 kilometres, which he drove with the victim’s legs out of the car, was a pretty long distance and that it would have taken him some time to complete that distance. He did not know at what speed he was driving. He accepted that the victim was screaming while he was driving the car. He did not know why he refused to stop. He accepted that this would have happened over a period of minutes. When asked what he would say about the photographs of the victim’s injuries he answered, “Terrible. Terrible”.

When recounting the agreed facts on sentence in relation to the victim’s injuries, the sentencing judge observed:

Her Honour noted that the assault occasioning actual bodily harm offence was “of itself an objectively serious offence of domestic violence”. Her Honour assessed this offence “at the midrange of objective seriousness”.

Her Honour assessed the aggravated take and detain offence at “above the midrange of objective seriousness” in relation to the aggravating feature of inflicting actual bodily harm. Her Honour found that:

Those findings have not been challenged in these proceedings.

In assessing the objective seriousness of this offending, her Honour noted that the factors which bear upon an assessment of the seriousness of a basic offence of kidnapping under s 86(1) of the Crimes Act include the period of detention, the circumstances of the detention, the person being detained and the purpose of the detention. Her Honour then set out nine factors which were relevant to this offending:

The Form 1 offence of common assault was closely related to the aggravated kidnapping offence so that her Honour did not give additional weight to the sentence to be imposed for the principal offence by reference to it. The offence of drive with high range prescribed concentration of alcohol (on the s 166 certificate) was assessed by her Honour as below the midrange of objective seriousness.

The sentencing judge was satisfied that the applicant was genuinely remorseful. Her Honour assessed the applicant’s prospect of rehabilitation to be “reasonable” and noted that “ultimately the [applicant’s] successful rehabilitation will come down to his own commitment to stop drinking and to listen to the experts”.

The applicant submitted that the indicative sentence for the offence of aggravated kidnapping, being a sentence of 6 years and 10 months imprisonment, indicated that the starting point, pre discount, was in the vicinity of 9 years. The applicant submitted that when that sentence is considered in isolation, it is very high, and was likely guided by the comparative cases with which the sentencing judge was provided.

The applicant noted that her Honour was provided with two cases for comparison, both involving domestic violence, to assist her Honour in assessing the appropriate sentences. The cases placed before her Honour were Diaz v R [2018] NSWCCA 33 and Jibran v R [2020] NSWCCA 86 (Jibran v R).

Her Honour noted in her reasons that:

The applicant submitted that the case of Jibran v R bore some similarity to the facts in this case in that the offender forced the victim into a car until she escaped from the moving vehicle. However, the applicant accepted that the offending in that case was more serious and violent than the facts of this case. Nevertheless, the applicant submitted that the offending was assessed as approaching the midrange of objective seriousness and the sentence imposed was similar to that in this case. In particular, the facts involved the victim being flung against a toilet where she hit her head and being struck between 20 and 30 times. There was also an offence of sexual intercourse without consent. The applicant noted that the sentence imposed in Jibran v R was only marginally higher than that in this case, despite more serious offending and a far more serious criminal history. The applicant submitted that Jibran v R demonstrated that the sentence in this case was excessive.

The applicant noted that for the offence of assault occasioning actual bodily harm (Count 2), an indicative sentence of 2 years and 6 months imprisonment was imposed, which represented a starting point of 3 years and 4 months. The applicant submitted that this was also high when compared to the maximum penalty for the offence and the very wide range of injuries that the offence encompassed. The applicant submitted that both indicative sentences were disproportionate to the offending and the strong subjective case of the applicant. The applicant submitted that in those circumstances, a lesser sentence was warranted at law.

In order to succeed on a ground of appeal alleging that a sentence is manifestly excessive, the applicant must establish that the sentence was “unreasonable” or “plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Markarian v The Queen); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to balance many different and conflicting features: Markarian v The Queen at [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34]. There will be a range of possible sentences that could be imposed without error: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128].

In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R A Hulme J (with whom Bathurst CJ and Leeming JA, Hamill and N Adams JJ agreed) summarised the principles relevant to a ground of manifest excess. His Honour stated at [443]:

Even if an indicative sentence for an offence is found to be manifestly excessive, that does not necessarily mean that the aggregate is itself manifestly excessive. In JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 R A Hulme J (with whom Hoeben CJ at CL and Adamson J agreed) set out the principles applicable to the imposition of an aggregate sentence and to appellate review of aggregate sentences (at [39]-[40]). This included (at [40]):

The above statements of principle relating to the approach to be taken to a ground of appeal alleging manifest excess in the case of an aggregate sentence were quoted with approval by this Court in Kerr v R [2016] NSWCCA 218 at [114] (per Bathurst CJ, with whom Hoeben CJ at CL and Price J agreed) and more recently in TB v R [2020] NSWCCA 108 by Hoeben CJ at CL at [148]-[149] (Bathurst CJ and Harrison J agreeing).

The principles concerning the relevance of comparative sentences to the question of manifest excess were summarised by this Court in Merkel v R [2019] NSWCCA 212 (per Wright J, Macfarlan JA and Johnson J agreeing) at [80]:

In Droudis v R [2020] NSWCCA 322 the Court (Bathurst CJ; Hoeben CJ at CL; Hamill J) said at [130]:

In Cherry v R [2017] NSWCCA 150 at [78] and [79] Johnson J (with whom Macfarlan JA and Harrison J agreed) said the following:

In R v JD [2018] NSWCCA 233 Hoeben CJ at CL (Meagher JA and Fagan J concurring) cited the case of Cherry v R and said at [103] that:

It should also be noted that the notional accumulation between the indicative sentence indicated for the aggravated kidnapping offence and for the assault occasioning actual bodily harm offence is two months. This demonstrates a very high level of concurrency and is counter indicative of the aggregate sentence being manifestly excessive.

That factor also strongly militates against the applicant’s submission that both the indicative sentences were “disproportionate to the offending and the subjective case of the applicant” and that they were seminal in the formulation of the aggregate sentence.

The applicant’s approach of taking the indicative sentences in isolation and using as a start point the pre-discounted indicative sentences is inconsistent with the principles set out in JM v R and TB v R. Rather, the principal focus must be on whether the aggregate sentence reflects the totality of the criminality involved.

In this case, the applicant’s sentence included a significant amount of concurrency between the two longest indicative sentences. The sentencing judge characterised this course of conduct as involving continued acts of domestic violence in a single evening. While a level of concurrency was appropriate in those circumstances, the applicant had inflicted actual bodily harm on the victim on two distinct occasions. This was against a background where her Honour found that the assault occasioning actual bodily harm offence “was of itself, an objectively serious offence of domestic violence” at the midrange of objective seriousness. In addition, the aggregate sentence included the offence of driving with a high range concentration of alcohol.

It follows from all the circumstances, that the imposition of an aggregate non-parole period of 4 years and 4 months, with an aggregate head sentence of 7 years, was within the bounds of the proper exercise of her Honour’s sentencing discretion.

This is made clear when regard is had to the following factors:

It follows that the applicant has not established that the sentence imposed on him was manifestly excessive. This ground of appeal should be dismissed.

The orders which I propose are:

HAMILL J: I agree with Hoeben CJ at CL.

WILSON J: I agree with Hoeben CJ at CL.