Jonson v R

BATHURST CJ: The facts surrounding the offence, the applicant’s subjective circumstances, the judgment of the sentencing judge and the grounds of appeal have been summarised in the judgment of Bellew J, whose summary I gratefully adopt.

It was not in issue between the parties that the offences occurred whilst the victim and the applicant were in a relationship and in circumstances where the offender was entitled to be at the premises at which the assault occurred. The applicant submitted that, in those circumstances, the sentencing judge erred in determining that the offences were aggravated as a result of being committed in the home of the victim.

This raises the question of whether the fact that an offence occurred at the victim’s home can be taken into account as an aggravating factor, in circumstances where the offender was not an intruder but was entitled to be at the victim’s home at the time of the offence. This in turn depends on the construction of s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) and its interaction with s 21A(4) of that Act. A five judge bench was convened for the purpose of considering this issue, which is of some general importance.

Section 21A of the Sentencing Procedure Act, so far as is relevant, provides as follows:

Section 21A was amended to reflect substantially its present form by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW). The following comments were made on s 21A in the Second Reading Speech introducing that Act:

The Explanatory Note, which accompanied the introduction of the Bill, made the following comments concerning s 21A(4):

This Court has consistently given a broad interpretation to s 21A(4). In R v Wickham [2004] NSWCCA 193, Howie J stated that its effect was to ensure that a factor is not taken into account in a way inconsistent with general sentencing principles and policy and that it can impose a limitation on the use to be made of a particular factor not otherwise apparent in the provisions of s 21A(2) or (3): at [23]-[24].

In R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 (Way), the Court stated that the “judicially developed body of sentencing principles” constitutes “law” for the purpose of s 21A(4) of the Sentencing Procedure Act: at [57]. That statement was referred to without criticism by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [18]: see also R v Johnson [2004] NSWCCA 76 at [33].

This approach to s 21A(4) was not the subject of any general challenge and, in these circumstances, it is not necessary to consider the precise scope of the expression “rule of law” in s 21A(4).

Section 21A(2)(eb) of the Sentencing Procedure Act was inserted into s 21A by the Crimes (Sentencing Procedure) Amendment Act 2007 (NSW). In the Second Reading Speech introducing that provision, the following remarks were made:

These proceedings were heard at the same time as the matter of R v Lulham [2016] NSWCCA 287, a Crown appeal on the inadequacy of sentence which potentially raised the same issue. The submissions made on behalf of Mr Lulham are incorporated under the heading “The applicant’s submissions”, whilst those of the Crown in that appeal are included under the heading “The Crown submissions”.

The applicant submitted that it was a rule of law or a sentencing principle that it was not an aggravating factor that an offence was committed at the victim’s home when the offender was lawfully present at the home. Reliance was placed in that regard on a decision of this Court, R v Comert [2004] NSWCCA 125 (Comert), which, it was submitted, had been consistently followed both before and after the introduction of s 21A(2)(eb) into the Sentencing Procedure Act, albeit in some cases with reservations.

In those circumstances, the applicant submitted that s 21A(2)(eb) should be read as either not extending to the situation where the offender was lawfully present at the victim’s home or, if it was to be construed in that fashion, such that s 21A(4) limited the operation of the provision to circumstances where the offender was not lawfully present at the victim’s home.

The applicant submitted that, had the legislature wished to expand the operation of s 21A(2)(eb) beyond what it described as the common law principle, it would have inserted a provision, such as s 21A(5A) or s 21A(5AA) of the Sentencing Procedure Act, specifically extending the operation of the subsection beyond established common law principles. It submitted that the Second Reading Speech introducing s 21A(2)(eb) cannot be elevated above the clear meaning of the provision when read in its proper statutory context. It also submitted that the early decisions should not be overruled unless the Court considers they are plainly wrong.

Mr Lulham also submitted that s 21A(2)(eb) cannot be construed in isolation from s 21A(4). He submitted that his construction of s 21A(2)(eb) sat comfortably with s 21A(4) because that interpretation was not contrary to the common law principles.

Senior counsel for the applicant accepted that the constraint for which he contended would commonly exclude the fact that the offence took place in the victim’s home as an aggravating factor in the case of domestic or familial violence. He submitted, however, that in those circumstances, the focus should be on the nature of the relationship rather than the place where the incident occurred. He submitted that the fact that the offence occurs in a domestic situation goes directly to the seriousness of the offence. He also submitted that the cases which express reservations on the principle derived from Comert did not address s 21A(4).

Senior counsel for Mr Lulham submitted that the common law principle emphasised the need for intrusion into the home. He submitted that a construction of s 21A(2)(eb) extending the aggravating circumstances beyond an intrusion would be contrary to the common law.

The Crown submitted that statutory construction begins with the text in the context of the legislative history and extrinsic material. However, as was pointed out in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55, legislative history and extrinsic materials cannot displace the meaning of the statutory text, nor is the examination of those materials an end in itself: at [39].

The Crown submitted that the text, history and purpose of s 21A(2)(eb) indicate that the section should be not read down to apply only where the offender is not lawfully in the home of the victim.

The Crown also submitted that, irrespective of the correct interpretation of s 21A(4), the sentencing judge (in Jonson) was entitled to take into account, as an aggravating factor, that the victim did not have a safe place to which to escape and that her expectation of safety and security had been violated.

The Crown submitted that the central words in s 21A(4) were the words “contrary to”. It submitted that if the construction of s 21A(2)(eb) for which it contended was correct, although it may modify the common law, it was not contrary to it. It submitted that there was no principle or policy of common law which prohibited taking into account the fact that the offence occurred in the house of the victim where the offender was not an intruder. It submitted that the contrary construction would give s 21A(2)(eb) no work to do.

The decision which underpinned the subsequent authorities, to the effect that an assault which occurred at the home of the victim could not be taken into account as an aggravating factor where the offender was lawfully at the home, is the decision of this Court in Comert. The applicant in that case was charged with aggravated sexual assault against his wife. The applicant appealed. One of the grounds of his appeal against sentence was that the primary judge erred in determining that an additional aggravating factor was that the offence was committed in the applicant’s home. Hidden and Hislop JJ found that the ground of appeal was made out. Their Honours made the following remarks at [29]:

Sully J, who dissented, whilst not expressly disagreeing with these remarks, stated that the portion of the remarks of the sentencing judge complained of seemed “no more than an extension of the antecedent proposition that the affront of the offence to the victim was the greater by reason of the fact that she had been sexually assaulted with violence in the then matrimonial home”: at [24].

Hidden and Hislop JJ cited no authority nor provided any reasons in support of the proposition to which they referred. It was perhaps for that reason that Bryson JA, in R v Kershaw [2005] NSWCCA 56 (Kershaw), stated that the observations of Hidden and Hislop JJ in Comert were not intended to establish, nor did they establish, any general principle: at [23].

Nevertheless, the approach in Comert has been followed by this Court on a number of occasions. In EK v The Queen (2010) 79 NSWLR 740; [2010] NSWCCA 199 (EK), R A Hulme J, with whom McClellan CJ at CL and Simpson J (as her Honour then was) agreed, followed Comert, stating that, whether at common law or in terms of s 21A(2)(eb), it is an aggravating factor where an offender intrudes into the victim’s home and not where the offender and the complainant reside together: at [79].

In Ingham v The Queen [2011] NSWCCA 88 (Ingham), McClellan CJ at CL, with whom James and Davies JJ agreed, stated that s 21A(2)(eb) does not operate to aggravate an offence of assault by a husband against his wife by reason of the fact that the offence was committed in the matrimonial home. His Honour stated that it would be an aggravating offence if a victim is assaulted in her own home by an unauthorised intruder, but not when the offender was lawfully on the premises: at [112]. His Honour, in reaching that conclusion, relied on the decisions of Comert and EK as well as R v Preston (Court of Criminal Appeal (NSW), 9 April 1997, unrep), in which Dunford J, with whom Handley JA and Smart J agreed, stated, in the context of a sexual assault on a woman by an offender who gained access to the woman’s house on the pretext of wanting to talk to her, that the criminality was aggravated when committed against a defenceless woman in the sanctity of her own home. With respect, that case does not support the negative proposition that it cannot be an aggravating factor if the offender was lawfully on the premises.

A similar approach to that taken in EK and Ingham was taken in BIP v The Queen [2011] NSWCCA 224 at [61]; Essex v The Queen [2013] NSWCCA 11 at [72]; MH v The Queen [2011] NSWCCA 230 at [34] and Pasoski v The Queen [2014] NSWCCA 309 at [54]. The same approach was also taken in NLR v The Queen [2011] NSWCCA 246 at [22]. However, in the latter case, it was stated that a fair reading of the sentencing judge’s remarks showed that she was taking into account the fact that the offence occurred in the offender’s home as demonstrating a complete violation of the trust placed by the victim in the offender, which was itself an aggravating factor: at [23]. A similar approach was taken in a number of other cases on this issue: see DJM v The Queen [2013] NSWCCA 101 at [8]-[10].

Although there has been no decision disapproving Comert and the cases which followed it, reservations have been expressed by members of this Court on a number of occasions. In Oh v The Queen [2010] NSWCCA 148, Kirby J, with whom Beazley JA (as her Honour then was) and Johnson J agreed, stated, whilst noting it was a dispute for another day, that there was no authority which suggested that s 21A(2)(eb) was confined to circumstances of intrusion from outside: at [40].

In Melbom v The Queen [2013] NSWCCA 210, the Court held that the sentencing judge had not treated the fact that the offence was committed at the victim’s home by a person lawfully entitled to be there as an aggravating factor, so the construction of s 21A(2)(eb) did not directly arise. However, Simpson J (as her Honour then was) stated that the Crown initially sought to challenge the previous decisions of this Court which held that s 21A(2)(eb) did not extend to offences committed in the home of the victim if the offender lived in the same home. She stated that it was not apparent why the challenge was abandoned and expressed the view that the decisions needed to be re-examined: at [1]-[2]. R A Hulme J made the following remarks:

R A Hulme J repeated his remarks in Montero v The Queen [2013] NSWCCA 214; (2013) 234 A Crim R 532 at [46], whilst holding in that case that, in any event, there was no error as it was not the fact that the offence incurred in the victim’s home taken alone which was stated to be an aggravating factor: at [52]. In that case, Leeming JA stated that he had similar reservations concerning the earlier authorities: at [1].

In Aktar v The Queen [2015] NSWCCA 123, Wilson J made the following comments at [53]-[57]:

In Erazo v The Queen [2016] NSWCCA 139, Davies J stated that, despite being a member of the Court in Ingham, he was now of the view that the Court’s construction of s 21A(2)(eb) in that case was too restrictive and that the issue should be revisited, although the present case was not one in which it was appropriate to undertake that task: at [48]. Ward JA, at [2], stated that she shared the same reservations, whilst R A Hulme J, at [77], stated that he did not need to canvass the issue.

At the request of the Court, the parties at the conclusion of the hearing provided references to a number of interstate decisions said to be relevant to the common law principle. In Director of Public Prosecutions v Fellows [2002] VSCA 58, a Crown appeal against a sentence for rape, the offence being committed by a member of the victim’s family who was not an intruder, Phillips CJ, with whom the other members of the Court agreed, made the following remarks at [37]:

This seems somewhat inconsistent with the approach taken in New South Wales.

In Director of Public Prosecutions v Joyce [2007] VSCA 215, the offence, intentionally causing serious injury, occurred whilst the victim and the offender, who had been in a relationship, were together at the victim’s home. The Court accepted that it was an aggravating factor that “the offence was committed in the victim’s home in breach of the trust which she imposed in the victim [sic] as her friend and sometime lover after forgiving him for the assault which he had earlier committed on her”: at [22], [35]. This also seems contrary to the position in this State, although the fact that the incident occurred in the victim’s home was not the only matter taken into account.

We were referred to a number of other Victorian authorities: R v Keenan [2005] VSCA 64; Director of Public Prosecutions v Sims [2004] VSCA 129; Director of Public Prosecutions v Devaldez [2003] VSCA 29; (2003) 141 A Crim R 11 and also a decision of the Full Court of the Supreme Court of South Australia, Heuston v The Queen [1993] SASC 4125. However, whilst these cases affirmed that it was an aggravating factor that the offence was committed at the home of the victim by a person who was not lawfully entitled to be there, they did not deal with the question in issue in the present case.

In R v DK [2016] ACTCA 7, a case involving sexual assault by a person entitled to be at the premises, the Full Court of the Supreme Court of the Australian Capital Territory made the following remarks at [56]:

It can thus be seen that, whilst the decisions in Fellows and Joyce provide some limited support for the contentions of the Crown, and DK provides some limited support for the contentions of the applicant, they do not deal with the issue in a conclusive fashion. Ultimately, the matter must depend on the true construction of s 21A(2)(eb).

The principles of construction are well established. The task of statutory construction begins and ends with a consideration of the text itself. Context has utility so far as it assists in understanding the text but cannot displace the meaning of the statutory text: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 51 at [39]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]. The context and purpose of the statute are important because the primary object is to construe the provision so that it is consistent with the language and purpose of all the provisions of the statute. It is not, however, a search for what the person or persons who promoted or passed the statute had in mind: Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [24]-[25]; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [78]; Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523; [2013] HCA 16 at [47].

I have set out the text of s 21A(2)(eb) of the Sentencing Procedure Act above. There are two things to note. First, the section in its terms does not impose as a pre-condition for its operation that the offender be an intruder into the victim’s home. Second, the aggravating factor is not limited to the home of the victim but extends to the home of any other person. On a literal construction, this could, hardly surprisingly, include the offender’s home. It seems to me that, in those circumstances, the legislator did not intend that the operation of the section was limited to circumstances where the offender was an intruder either in the victim’s home or some other home.

That construction promotes the purpose of the section, namely, that a home is a place which should be safe and secure for persons who reside, or are otherwise present, at such a place. Thus, it would extend to persons (for example, children) visiting a relative’s home or, for that matter, persons in a domestic relationship at the home of the offender.

That construction is also consistent with the purpose of the legislature outlined in the Second Reading Speech introducing the subsection, to which I have referred above at [10].

There remains the question of whether, what I would regard as, the textual construction and the clear legislative intention cannot be given effect because of s 21A(4) of the Sentencing Procedure Act or, put another way, whether s 21A(2)(eb) has to be read down so that it is read harmoniously with s 21A(4): Project Blue Sky at [69].

Section 21A(4) limits the power of the Court to take into account an aggravating factor where it would be contrary to a “rule of law” to do so. As I indicated, I am prepared to accept, in the absence of argument, that any part of the “judicially developed body of sentencing principles” constitutes law for the purpose of s 21A(4): see Way at [57]. However, it is not enough for the purpose of s 21A(4) that the particular aggravating factor or the extent of its operation does not form part of such a body of principles. Rather, it is necessary for s 21A(4) to operate such that the taking into account of an aggravating factor in the circumstances of a particular case would be contrary to such principles. Inconsistency with the sentencing principles need be shown before the section has operation.

In the present case, s 21A(4) would not operate to limit the operation of s 21A(2)(eb) merely because general sentencing principles up to the present time only recognise as an aggravating factor the fact that the offence was committed in the victim’s home if the offence was committed by an intruder. Rather, it would be necessary that there be a general sentencing principle that, unless the offender was an intruder or unlawfully present at the home of the victim, the fact that the offence was committed at the victim’s home could not be an aggravating factor on sentence.

The authority which is said by the applicants to support the negative proposition is Comert. There are a number of matters to be noted. First, the proposition as articulated in the later authorities which followed it is derived from the comment by Hidden and Hislop JJ, “we are unable to see how a sexual assault on a woman by her husband is rendered more severe because it was perpetrated in the matrimonial home”. That statement provides limited support for what was derived from it in cases such as EK and Ingham, namely, that the fact that the offence was committed in the victim’s home could not be an aggravating factor unless the offender was an intruder.

Second, it is by no means clear that Hidden and Hislop JJ were intending to lay down a negative proposition of the nature of that contended for by the applicant. Their Honours did not expressly articulate such a proposition, nor did they provide any authority to support it. As Bryson JA pointed out in Kershaw at [23], it does not appear that there was any intention to establish any general principle.

Third, the authorities to which I have referred do not provide authoritative support for the proposition and the Victorian authorities, if anything, are contrary to it.

Fourth, there is no reason in principle to impose the limitation contended for. The reason that the fact that the offence was committed in the victim’s home was said to be an aggravating factor was because of his or her entitlement to feel secure in the home. There is no reason that a breach of that security would constitute an aggravating factor in the case of an intruder but not in the case of a person lawfully on the premises.

In these circumstances, I am unable to agree that there is a rule of law within the meaning of that expression in s 21A(4) of the Sentencing Procedure Act that the fact that the offence was committed in the victim’s home can only be an aggravating factor on sentence if the offender is an intruder. Whilst I am conscious of the care which should be taken in overruling previous decisions of this Court (see, for example, Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9 at 269), I am of the view that the decisions which attributed this principle to Comert are plainly wrong and should be overruled.

It follows that this ground of appeal has not been made out.

There is one further matter I should mention. The fact that s 21A(2)(eb) can extend beyond offences committed by an intruder does not mean that in all cases the fact that the offence occurred in a home will be an aggravating factor. It is necessary for the Court to conclude that, having regard to ordinary sentencing principles, it actually aggravates the offence in question: Gore v The Queen [2010] NSWCCA 330; (2010) 208 A Crim R 353 at [29].

I have had the advantage of reading the judgment of Bellew J in draft. I agree for the reasons he gives that Ground 2 of the grounds of appeal has not been made out.

In the circumstances, in my opinion, the following orders should be made:

BEAZLEY P: I have had the advantage of reading in draft the reasons of the Chief Justice in respect of ground 1 of the appeal with which I agree. I have also had the advantage of reading in draft the reasons of Bellew J in respect of ground 2 of the appeal. I agree with his Honour’s reasons.

Having regard to the issued raised by ground 1 of the appeal, I consider that leave to appeal should be granted. However, as I consider that both grounds 1 and 2 of the appeal should be rejected, the appeal should be dismissed.

HALL J: I agree with the reasons and conclusions in the judgment of the Chief Justice, and with the judgment of his Honour, Bellew J;

BELLEW J: On 18 February 2015 the applicant pleaded not guilty to an indictment containing the following counts:

Following a trial, the applicant was found guilty of each of counts 1, 4 and 5.

On 12 June 2015, the applicant was sentenced to an aggregate term of nine years imprisonment, comprising a non-parole period of six years and five months imprisonment, commencing on 27 February 2015 and expiring on 26 July 2021, the balance of term being two years and seven months imprisonment commencing on 27 July 2021 and expiring on 26 February 2024.

By notice filed on 12 April 2016, the applicant seeks leave to appeal on the following grounds:

At the hearing, senior counsel for the applicant did not press ground 3.

I have read, in draft, the judgment of Bathurst CJ in respect of ground 1. I respectfully agree with his Honour’s conclusions in respect of ground 1.

Before turning to consider ground 2, it is necessary to set out the facts of the offending.

Commencing at ROS 2, the sentencing judge found the facts of the offending to be as follows:

Commencing at ROS 6, the sentencing judge considered the objective seriousness of the offending in count 1. Having summarised the circumstances of that offending, his Honour said (at ROS 7):

Subsequently, his Honour commenced (at ROS 11) to consider the aggravating factors under s. 21A of the Sentencing Procedure Act. In the course of doing so, his Honour said (at ROS 12):

Senior counsel for the applicant submitted that those passages of his Honour’s remarks set out at [67] above amounted to a “second treatment” of the fact that the offending had occurred in the presence of a child which went “beyond the sentencing judge simply expanding upon his Honour’s earlier finding”. It was submitted that in these circumstances, it was apparent that the sentencing judge had double counted this aggravating factor when assessing the objective seriousness of count 1.

In support of that conclusion, senior counsel pointed out that when dealing with the objective seriousness of the offending, the sentencing judge had found (at ROS 7) that it involved a series of criminal acts, but that he had subsequently stated (at ROS 11) that he did not consider this as an aggravating factor because he had “already taken this into account in assessing the objective seriousness of the offence”. It was submitted that in the absence of a similar indication being given by his Honour in respect of the offending having been committed in the presence of a child, the unavoidable conclusion was that such factor had been double counted.

The Crown submitted that aggravating factors, by their very nature, inform an assessment of the objective seriousness of offending, and that it is unexceptional for reference to be made to them on more than one occasion in the course of reasons being delivered. It was submitted that such an approach was completely consistent with the process of instinctive synthesis in which a sentencing judge must engage in determining an appropriate sentence.

The Crown submitted that the fact that his Honour had referred to this particular aggravating factor twice did not, of itself, lead to the conclusion that the applicant had been doubly punished. It was further submitted that the absence of any mention, in the passage of his Honour’s sentencing remarks set out in [67] above, to his earlier reference to this issue was a clear indication that the matter had not previously been taken into account.

In considering this ground it is necessary to be mindful of the context in which the sentencing judge’s statements were made.

In the passage of his sentencing remarks set out in [66] above, the sentencing judge concluded that the objective seriousness of the offending in count 1 fell below the mid-range. It is apparent that in reaching that view, his Honour had regard to the nature and extent of the victim’s injuries, particularly the perforation of her ear drum which he found had been caused by the applicant. It was in that context that his Honour made reference to the evidence of the applicant’s child. His Honour obviously viewed that evidence as supporting a conclusion that the applicant had caused that injury. That was followed by his Honour’s observation that the offending in count 1 “could be considered to be committed in the presence of an eight year old child”.

Viewed in this way, his Honour’s remarks do not indicate that when assessing the objective seriousness of the offending in count 1 he took into account the fact that such offending was committed in the presence of the applicant’s child. When read as a whole, the emphasis of that part of his Honour’s remarks set out in [66] above was upon the victim’s injury, and the evidence given by the applicant’s child which his Honour clearly regarded as supporting the conclusion that such injury was caused by the applicant. It was the injury, not the fact that the offending was committed in the presence of the applicant’s child, which was the primary focus of this part of his Honour’s remarks, and which his Honour took into account in reaching his conclusions regarding the objective seriousness of the offending.

Plainly, in the latter passage of his remarks (set out at [67] above) his Honour found that the offending was aggravated because it was committed in the presence of the applicant’s child. Nothing said by his Honour in that passage suggests, even remotely, that this had already been taken into account. Indeed, the absence of any reference to it having already been taken into account only serves to confirm that his Honour had not done so. In my view, the contrast drawn by counsel for the applicant in respect of his Honour’s approach to different aggravating factors fortifies, rather than weakens, a conclusion that there was no double counting.

It follows that this ground is not made out.

I agree with the orders proposed by Bathurst CJ.

N ADAMS J: I have had the advantage of reading in draft the reasons of both the Chief Justice and Bellew J. I agree with both of their Honours’ reasons and the proposed orders and have nothing further to add.