Sentencing Bench Book — Particular offences

The nature of the injury caused to the victim will, to a very significant degree, determine the seriousness of the offence and the appropriate sentence: R v Mitchell [2007] NSWCCA 296 at [27]; Siganto v The Queen (1998) 194 CLR 656 at [29]; R v Zhang [2004] NSWCCA 358 at [4]. However, there is no rule or principle which mandates that the nature of the injuries sustained will be the most important factor or necessarily determine the assessment of the objective seriousness of the offence: Waterfall v R [2019] NSWCCA 281 at [33], [35]. In general terms, the graver the injury, the more serious the offence. An offence may be characterised as falling close to the worst of its kind by reason of the injuries inflicted upon the victim.

The degree of violence used or ferocity of the attack is a material consideration on sentence: R v Bloomfield (1998) 44 NSWLR 734 at 740; R v Zhang [2004] NSWCCA 358 at [18]. This is so even if the consequences of the attack on the victim are minimal: R v Kirkland [2005] NSWCCA 130 at [33] per Hunt AJA.

Conversely, a victim may suffer very serious injuries but the violence used may have been slight: R v Bloomfield, above, at 740.

The intention with which the offender inflicts harm is also an important consideration. This factor is referred to in the discussion of particular offences, below.

As a charge of common assault does not involve actual bodily harm, an offence is not mitigated by virtue of the fact the injuries suffered by the victim were minor: R v Williams (unrep, 30/5/94, NSWCCA). The offence in that case was found to be objectively serious, as the offender had punched the victim in a cold and calculated manner.

The criminality in a s 61 offence is not generally mitigated on account of there being minimal violence. In R v Lardner (unrep, 10/9/98, NSWCCA) it was held that a submission to that effect “overlooks the fact that the degree of violence involved in common assault cases is invariably moderate, because if the violence is more severe it causes actual bodily harm or wounding and results in a more serious charge.”

In R v Abboud [2005] NSWCCA 251, the offender assaulted his partner on three separate days by punching, choking, grabbing her face, kicking and biting. It was accepted that the criminality and circumstances involved in the assaults were of the most serious kind for an offence under s 61: R v Abboud at [17], [33].

In R v Lardner (unrep, 10/9/98, NSWCCA) the court considered whether the sentencing judge infringed the De Simoni principle by taking into account matters which constituted the more serious offence of assault occasioning actual bodily harm. It was observed that “bodily harm” includes any hurt or injury calculated to interfere with the health or comfort of the victim; it need not be permanent but must be more than merely transient or trifling. Physical and emotional reactions to an assault such as difficulty sleeping, memory problems, anxiety and poor concentration were therefore matters properly taken into account in sentencing for common assault. However, a psychiatric condition could constitute “actual bodily harm” and such a condition should not be taken into account in sentencing for common assault.

Evidence which seeks to demonstrate actual bodily harm should not be admitted on sentence for common assault. In R v Abboud [2005] NSWCCA 251 at [19], the court said:

Section 59 does not define actual bodily harm. Typical examples of injuries that are capable of amounting to actual bodily harm include scratches and bruises: McIntyre v R (2009) 198 A Crim R 549 at [44]. Actual bodily harm will likely have been occasioned where a victim has been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind: Li v R [2005] NSWCCA 442 at [45]. The degree of violence involved in an assault is a material consideration in sentencing: R v Bloomfield (1988) 44 NSWLR 734 at 740. In that case, a single punch led to very severe injuries occasioned by the victim falling on his head. The sentencing judge properly gave considerable weight to the serious injuries occasioned by the assault, but erred in not considering the limited degree of violence involved. Likewise, an offence may be objectively serious due to the nature of the assault notwithstanding minor injuries: see R v Burke [2001] NSWCCA 47 at [17].

The phrase “bodily harm” is to be given its ordinary meaning. It includes “any hurt or injury calculated to interfere with the health or comfort of the victim”: R v Lardner (unrep, 10/9/98, NSWCCA) per Dunford J at 4. In McIntyre v R at [44], Johnson J held:

There is no need to prove a specific intent to cause actual bodily harm for an offence under s 59: Coulter v The Queen (1988) 164 CLR 350. The prosecution need only prove that the accused intentionally or recklessly assaulted the victim and that actual bodily harm was occasioned as a result: R v Bloomfield (1998) 44 NSWLR 734 at 737.

An act forming the basis of an offence under s 59 may result in serious injuries. Care must be taken not to infringe the principle in De Simoni by taking into account injuries and a state of mind which would justify a more serious offence: R v Overall (1993) 71 A Crim R 170 at 175; R v Baugh [1999] NSWCCA 131 at [35].

An offence under s 59 does not require that the Crown prove the offender intended, or was reckless as to, causing actual bodily harm, whereas an offence under s 35 requires proof that the accused realised the possibility that grievous bodily harm or wounding (as the case may be) may possibly be inflicted upon the victim and yet went ahead and acted as he or she did: Blackwell v R [2011] NSWCCA 93 at [82], [120], [170].

The standard non-parole periods are indicated above and apply to offences “whenever committed”: Crimes (Sentencing Procedure) Act 1999, Sch 2, Pt 17.

For detailed discussion of the sentencing considerations applicable to standard non-parole periods, see Standard non-parole period offences — Pt 4 Div 1A at [7-890]ff.

Generally speaking, the seriousness of the offence will significantly depend upon the seriousness of the wounding: McCullough v R [2009] NSWCCA 94 at [37]. The injury inflicted is not the only factor in determining the seriousness of an offence under s 35. The nature of the attack and surrounding circumstances are highly relevant: R v Channells (unrep, 30/9/97, NSWCCA); McCullough v R at [37]. In R v Douglas [2007] NSWCCA 31 at [12], it was held that the number of blows and the circumstances in which they were delivered were relevant to the objective seriousness of the offence.

Section 4(1) defines “grievous bodily harm” to include any permanent or serious disfiguring of the person, the destruction of a foetus, and any grievous bodily disease. At common law, the words “grievous bodily harm” are given their ordinary and natural meaning. “Bodily harm” needs no explanation and “grievous” simply means “really serious”: DPP v Smith [1961] AC 290; Haoui v R (2008) 188 A Crim R 331 at [137], [160]; Swan v R [2016] NSWCCA 79 at [54]–[63].

The way in which grievous bodily harm may be inflicted varies substantially: R v Kama [2000] NSWCCA 23 at [16]. The seriousness of an offence under s 35 may be assessed by reference to the viciousness of the attack and severity of the consequences: R v Kama at [17].

In R v Esho [2001] NSWCCA 415 at [160], the court held the offence was properly characterised as a “worst case” having regard to the number of participants and the ferocity of an attack upon the victim. It is not necessary for the injuries caused to the victim to be of the “worst type” for an offence to fall into the “worst case” category (as that concept was understood prior to The Queen v Kilic (2016) 259 CLR 256); the nature of the offender’s conduct may bring it within that category: R v Westerman [2004] NSWCCA 161 at [17].

In Kanengele-Yondjo v R [2006] NSWCCA 354, the offender was sentenced for two offences of maliciously inflicting grievous bodily harm. The offender infected two victims with HIV, knowing he was carrying the virus. The court agreed with the sentencing judge’s assessment of the offences as “heinous crimes which showed a contemptible and callous disregard” for the lives of the victims: Kanengele-Yondjo v R at [15]–[16], [50]. The offences were rightly described as falling within the worst case category: Kanengele-Yondjo v R at [17]. The expression “worst case category” should now be avoided: see The Queen v Kilic at [18].

“Wounding” is not defined in the Crimes Act. It was been defined at common law to involve the breaking of the skin: R v Shepherd [2003] NSWCCA 351 at [31]; Vallance v The Queen (1961) 108 CLR 56 at 77; R v Hatch [2006] NSWCCA 330 at [16]; R v Devine (1982) 8 A Crim R 45 at 47, 52, 56.

The consequences of a wounding can vary widely: R v Hatch, above, at [17]; and may be quite minor: R v Hooper [2004] NSWCCA 10 at [36]. It need not involve the use of a weapon: R v Shepherd, above at [32]. A case involving significant wounding does not by virtue of that factor alone mean the offence attracts the maximum penalty. The offender’s mental state is a relevant factor, particularly if there is a degree of cognitive disturbance and an absence of premeditation: R v Aala (unrep, 30/5/96, NSWCCA).

Although the same penalty applied for the separate offences under (now repealed) s 35(a), malicious wounding, and s 35(b), malicious wounding with intent to inflict grievous bodily harm, it was not permissible to sentence an offender for injuries not charged where those injuries were more serious: McCullough v R (2009) 194 A Crim R 439. Howie J said at [39]: “To sentence for the infliction of grievous bodily harm on a charge of wounding, seems to me to eradicate the difference between the two offences”. Similar logic must apply to the offences created in s 35(2) and (4).

A sentencer must be careful to differentiate between an offence under s 35 and an offence under s 33 which involves specific intent. That does not mean there is no “room for a ‘worst case’ under s 35 without crossing the boundary of s 33”: R v Esho [2001] NSWCCA 415 at [160].

As the more serious offence under s 33 requires proof of an intention to inflict grievous bodily harm, there is no breach of De Simoni by taking into account in sentencing for an offence under s 35 that the offender intended to inflict actual bodily harm: R v Channells (unrep, 20/9/97, NSWCCA); R v Driscoll (unrep, 15/11/90, NSWCCA).

Offences under s 35 carry higher maximum penalties where the offence is committed in company: s 35(1), (3). It is a breach of the De Simoni principle to treat the circumstance of being in company as an aggravating feature when sentencing an offender for the basic offence: R v Tran [2005] NSWCCA 35 at [17].

A standard non-parole period of seven years applies to s 33 offences committed on or after 1 February 2003: Crimes (Sentencing Procedure) Act 1999, ss 54A–54D.

For discussion of the sentencing considerations applicable to standard non-parole periods, see Standard non-parole period offences — Pt 4 Div 1A at [7-890]ff.

For a useful summary of the relevant sentencing principles see AM v R [2012] NSWCCA 203 at [67]–[74].

The maximum sentence of 25 years imprisonment indicates the seriousness with which an offence under s 33 is regarded: R v Zhang [2004] NSWCCA 358 at [28]; R v Watt (unrep, 2/4/97, NSWCCA); R v Zamagias [2002] NSWCCA 17 at [11]. It is the longest determinate sentence available for an offence in the Crimes Act 1900: R v Hookey [2018] NSWCCA 147 at [57].

A breadth of conduct and consequences is comprehended by s 33: R v Williams [2004] NSWCCA 246 at [51]; Heron v R [2006] NSWCCA 215 at [54]. It is important for the sentencer to analyse the facts of each case. Notwithstanding the circumstances giving rise to the offence vary widely and the range of culpability is vast, some assistance may be gained from considering the sentences imposed in other cases to achieve consistency: Newman v R [2015] NSWCCA 270 at [19].

In Kennedy v R [2008] NSWCCA 21 it was held that the offender’s psychological condition — not just the physical act — is relevant in determining the objective seriousness of an offence under s 33: at [41]. However, in Muldrock v The Queen (2011) 244 CLR 120, the High Court appear to exclude an offender’s mental condition from an assessment of objective seriousness: at [54]–[55].

In respect of injuries for offences under s 33, subss (1)(a) and (2)(a) relate to wounding and subss (1)(b) and (2)(b) relate to grievous bodily harm.

In Maybury v R [2022] NSWCCA 233, the sentencing judge did not err in assessing a s 33(1)(a) offence’s objective seriousness by finding the injuries amounted to grievous bodily harm. When sentencing for such an offence, the correct approach involves:

In this case, the offender was not tried for a s 33(1)(b) offence.

In R v Williams [2004] NSWCCA 246, the fact the injury consisted of a single superficial stab wound was taken into account in holding that the lengthy sentence imposed at first instance was not warranted. The wound was not life threatening and did not cause any lasting physical damage: R v Williams at [54].

The extent of the injuries may bring an offence into the very serious category. In R v Mitchell [2007] NSWCCA 296, the victim suffered a serious brain injury and was reduced to a vegetative state after a brutal attack. Howie J said at [27]:

In R v Kirkland [2005] NSWCCA 130 and R v Bobak [2005] NSWCCA 320 (two offenders jointly involved in maliciously inflict grievous bodily harm with intent), the victim was attacked with a hammer and left with extremely serious physical and mental injuries. Both cases were characterised as at the very upper end of the range of seriousness, while falling short of a worst case: R v Kirkland at [36]; R v Bobak at [32]. Similarly, in R v Nolan [2017] NSWCCA 91, an assault leaving an infant with horrific injuries and permanent brain damage was characterised as being in the “high range” (at [73]) but did not warrant the maximum penalty because of the offender’s favourable subjective case (at [67]–[68]).

In R v Hookey [2018] NSWCCA 147, an unprovoked road rage case, where the offender alighted his car and stabbed the victim three times with a knife, with no provocation, the court found the objective circumstances of the case were extremely serious and the victim’s injuries so serious, only luck prevented his death. Although, in the particular circumstances of that case, the court was satisfied the sentence imposed at first instance was manifestly inadequate, the residual discretion not to intervene was exercised. Rothman J said “if it were not for the subjective circumstances, I could not imagine, given the need for general and specific deterrence in particular, that a sentence lower than 8 years would be appropriate: at [64].

The objective gravity of an offence under s 33 “is not determined merely by considering the injuries”: Vragovic v R [2007] NSWCCA 46 at [32]. In that case, the circumstances of the offence, including the fact that the victim was a 57-year-old female, attacked with a metal club in her home, and that the assault was premeditated and involved repeated blows, justified the sentencing judge’s characterisation of the offence as “near the top of the range of seriousness”: Vragovic v R at [32]–[34]. Nor must a judge be satisfied beyond reasonable doubt as to precisely how the injury was sustained because it may not be possible for the court to determine the precise mechanism by which the offender injured the victim: R v Nolan at [72].

Even where the injuries fall into the lower end of the range of grievous bodily harm, the circumstances in which they were inflicted may still warrant the characterisation of the offence as serious: R v Testalamuta [2007] NSWCCA 258 at [31].

An offence may be aggravated by the infliction of an injury that exceeds the minimum necessary to qualify as grievous bodily harm: R v Chisari [2006] NSWCCA 19 at [22]; R v Jenkins [2006] NSWCCA 412 at [13]; R v Zoef [2005] NSWCCA 268 at [123]. Any injury in excess of the bare requirements of grievous bodily harm can be taken into account as a matter of aggravation: Heron v R [2006] NSWCCA 215 at [49]. A sentencing judge should not speculate as to what might have occurred had the victim not received medical assistance: Heron v R at [49].

The mental element of an offence under s 33 is the intention that the harm inflicted be grievous bodily harm, differentiating the offence from the less serious offence under s 35: R v Wiki (unrep, 13/9/1993, NSWCCA). The degree of harm intended in a particular case may make the absence of premeditation less significant: R v Zamagias [2002] NSWCCA 17 at [13]–[14].

The degree of harm intended or foreseen by the offender, as evidenced by the offender’s conduct, was considered in R v Mitchell [2007] NSWCCA 296. The victim was reduced to a vegetative state following a brutal and sustained attack as he lay unconscious on the ground. Howie J said at [35]:

The degree of violence used or the ferocity of the attack is a material consideration on sentence: R v Zhang [2004] NSWCCA 358 at [18]. The consequences to the victim are not the only important factor and the acts of the offender which led to those consequences should also be considered: R v Kirkland [2005] NSWCCA 130 at [33].

See generally the discussion with regard to the worst case category at [10-005] Cases that attract the maximum: see also The Queen v Kilic (2016) 259 CLR 256.

In R v Baquayee [2003] NSWCCA 401, the court held that the combination of the use of a handgun (an aggravating feature) and the severity of the wounds placed the crime in the worst case category. The sentencing judge should have considered imposing the maximum sentence: R v Baquayee at [12].

In R v Stokes and Difford (1990) 51 A Crim R 25, it was held that the repeated attack on a fine defaulter by prison inmates, rendering the victim a quadriplegic, fell within the worst case category: R v Stokes and Difford at 34.

In R v Pillay [2006] NSWCCA 402, the offender was acquitted of attempted murder (s 27) and convicted of maliciously wound with intent to inflict grievous bodily harm. The sentencing judge erred in taking into account, as aggravating factors, the pre-meditation and planning of the offence whereby the offender had forced the victim to write a false suicide note. Such factors implicitly ascribed an intention to murder and breached the principle in De Simoni: at [16].

In Maybury v R, the offender was convicted of a s 33(1)(a) wounding offence and the sentencing judge did not breach the principle in De Simoni in assessing the offence’s objective seriousness by finding the victim’s injuries inflicted in one violent attack amounted to grievous bodily harm. All of the injuries sustained properly informed the nature and extent of the wounds and their consequences, and the intention to inflict grievous bodily harm element of the offence: at [115]–[116], [123]–[124].

The actual or threatened use of violence cannot be considered as an aggravating factor of an offence under s 33 as the infliction of actual violence is an element of the offence of malicious wounding: R v Cramp [2004] NSWCCA 264 at [53]–[58]; R v LNT [2005] NSWCCA 307 at [28]. In R v Hookey [2018] NSWCCA 147 the judge erroneously found the “use of a weapon” was an element of the offence under s 33(1)(a). However, if it is taken into account in determining the objective seriousness of the offence, it cannot be counted again as an aggravating feature under Crimes (Sentencing Procedure) Act 1999, s 21A(2)(c): R v Hookey at [44], [67].

Section 25A(2) sets out the aggravated form of the s 25A(1) offence. A person aged 18 or above who commits an offence under s 25A(1) when intoxicated commits an offence under s 25A(2).

The maximum penalty for an offence under s 25A(2) is 25 years imprisonment.

Section 25B(1) sets a mandatory minimum sentence of imprisonment of not less than 8 years and further provides that any non-parole period is also required to be not less than 8 years. Section 25B(2) provides that “… nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or no sentence (or to impose a lesser non-parole period)”.

Section 25A(3) provides that an assault causes the death of a person whether the person is killed as a result of the injuries received directly from the assault or from hitting the ground or an object as a consequence of the assault. Section 25A(4) further provides that it is not necessary for the Crown to prove that the death was reasonably foreseeable for the purposes of the basic or aggravated offence.

In R v Hamilton (1993) 66 A Crim R 575, Gleeson CJ said 581:

Remarks to similar effect were made in R v Barton [2001] NSWCCA 63 at [33].

General deterrence must play a significant role in the sentencing of offenders for offences contrary to s 33B: Sharpe v R [2006] NSWCCA 255 at [72]. In R v Perez (unrep, 11/12/91, NSWCCA), a case involving the driving of a vehicle towards police officers, Kirby P (with whom Gleeson CJ and Campbell J agreed) said at pp 20–21:

The threat of violence constituted by an offender using an offensive weapon to prevent lawful apprehension cannot be considered an aggravating factor of an offence under s 33B(1)(a) as this is an essential element of that offence: R v Franks [2005] NSWCCA 196 at [26]–[27]; s 21A(2) Crimes (Sentencing Procedure) Act 1999. By contrast, that the victim is a police officer may be taken into account as an aggravating factor as s 33B was not enacted to specifically protect police and the offence contemplates a broad range of victims: Courtney v R [2022] NSWCCA 223 at [51]–[53].

In R v Mostyn [2004] NSWCCA 97, it was an aggravating factor that, as a result of the offence, the victim (a police officer) suffered from a Post Trauma Distress Disorder that left him permanently disabled so far as his police duties were concerned: R v Mostyn at [186].

The brandishing of a firearm constitutes a serious form of the offence, even if the firearm is incapable of being discharged: R v Mostyn [2004] NSWCCA 97 at [187]. In Curtis v R [2007] NSWCCA 11, it was noted that the brandishing of knives was sufficient to constitute the offence. The offender’s use of a knife to kill a police dog aggravated the offence and took it into the higher levels of objective seriousness: Curtis v R at [66]–[67].

Using a syringe to threaten a store’s employees attempting to apprehend a shoplifter was characterised as “serious criminal responsibility” in R v Carter (unrep, 29/10/97, NSWCCA).

In R v Sharpe [2006] NSWCCA 255, it was held that it would be impermissible to have additional regard to the threatened use of a weapon as an aggravating factor given that the threat to use an offensive weapon is an element of an offence under s 33B: R v Sharpe at [49]–[50].

It is a breach of the principle in De Simoni to take into account that grievous bodily harm was occasioned for an offence under s 33B: R v Kumar [2003] NSWCCA 254 at [11].

Under ss 54A–54D Crimes (Sentencing Procedure) Act 1999, the standard non-parole period of three years for s 60(2) offences and five years for s 60(3) apply to offences committed on or after 1 February 2003: see Winn v R [2007] NSWCCA 44; and Kafovalu v R [2007] NSWCCA 141. In Kafovalu it was held that the sentencing judge did not err in treating an offence under s 60(2) involving a single but heavy blow to the officer’s head as one falling within the mid-range of objective seriousness.

For detailed discussion of the sentencing considerations applicable to standard non-parole periods, see Standard non-parole period offences — Pt 4 Div 1A at [7-890]ff.

In 2002, the Attorney General unsuccessfully sought a guideline judgment in relation to offences under s 60(1): Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) [2002] NSWCCA 515 at [64]. However, Spigelman CJ emphasised the importance of deterrence as a consideration in sentencing offenders for assault against police officers at [22] and [26]:

The court pointed out that these principles applied to sentencing in both the Local and District Courts: at [27]. The court also recognised that offences under s 60(1) encompass a wide range of behaviour, and that whether a custodial sentence is required will depend on the nature of the assault: at [38]–[39].

In Bolamatu v R [2003] NSWCCA 58, the offender ran over a police officer while leaving the scene in a car. The police officer had stood in front of the car holding out her arm to signify “stop”. The officer suffered grave injuries. It was held that this was “as reprehensible as [an offence under s 60(2)] can be, and therefore could be seen as demanding something like the maximum possible sentence”: Bolamatu v R at [10].

In R v Pickett [2004] NSWCCA 389, the offender pleaded guilty to assault occasioning actual bodily harm to a police officer (s 60(2)) after being originally charged with using an offensive weapon, namely a motor vehicle, with intent to avoid lawful apprehension (s 33B(1)). So long as the sentencing judge did not find that the motor vehicle was used with the intention of avoiding lawful apprehension there would be no infringement of the De Simoni principle: at [14]. A finding that the offender had acted intentionally or deliberately did not necessarily entail a conclusion that he was guilty of the more serious offence under s 33B. There was no infringement of De Simoni. It was open to find there was an intention to commit the assault without taking the further step of concluding that there was also an intention in doing so to avoid lawful apprehension: R v Pickett at [16].

In R v Newton [2004] NSWCCA 47, the offender was charged with various offences including use of an offensive weapon to avoid lawful apprehension (s 33B) and assault police in execution of duty (s 58). The fact the offender was, around the time of the assault, armed with and brandishing knives was relevant to the objective gravity of the offence and did not infringe the De Simoni principle: R v Newton at [22]–[23]; cf R v Simpson [2001] NSWCCA 239 at [15]–[18].

For a discussion of the general sentencing approach to domestic violence, see Domestic violence offences at [63-500]ff.

The High Court has recognised that current sentencing practices for offences involving domestic violence have departed from past practices due to changes in societal attitudes to domestic relations: The Queen v Kilic (2016) 259 CLR 256 at [21]. Rigorous and demanding consequences for the perpetrators of domestic violence are necessary to protect partners, family members and the wider community: Cherry v R [2017] NSWCCA 150 at [78].

General deterrence, personal deterrence and denunciation are particularly important in cases of domestic violence: DPP v Darcy-Shillingsworth [2017] NSWCCA 224 at [82]–[84]; Hurst v R [2017] NSWCCA 114 at [166]; Vragovic v R [2007] NSWCCA 46 at [33]; R v Hamid (2006) 164 A Crim R 179 at [68]. The importance of these principles was reiterated in R v JD [2018] NSWCCA 233, where the offending was committed by the respondent against his wife and daughter over a six year period: at [80]–[81], [102].

The imposition of suspended sentences for three assault and wounding offences was found in DPP v Darcy-Shillingsworth at [85] not to reflect the community’s interest in general deterrence in domestic violence cases. The criminal law must “play its part in the endeavour to quell and redress violence of this nature … even when committed by a man with much to be said for his otherwise good character”: DPP v Darcy-Shillingsworth at [108].

A prior relationship between the offender and the victim does not mitigate an offence of personal violence: Raczkowski v R [2008] NSWCCA 152 at [46]. An offence committed during a domestic relationship necessarily entails the abuse of a relationship of trust: The Queen v Kilic at [28]. A sentencing judge should not enter into a determination of the merits of matrimonial disputes: R v Kotevski (unrep, 3/4/98, NSWCCA). Distress at the breakdown of a relationship is no excuse for violence: Walker v R [2006] NSWCCA 347 at [7]. Nor should an indication of forgiveness on the victim’s part be used to reduce an otherwise appropriate penalty, given that victims of domestic violence “may be actively pressured to forgive their assailants or compelled for other reasons to show a preparedness to forgive them”: Shaw v R [2008] NSWCCA 58 at [27]; R v Quach [2002] NSWCCA 173 at [28]: R v Rowe (1996) 89 A Crim R 467 at 472–473; R v Fahda [1999] NSWCCA 267 at [26]; R v Berry [2000] NSWCCA 451 at [32]. However, in Shaw v R, the victim’s forgiveness and expression of ongoing support was given some weight on re-sentence because, in the particular circumstances of that case, it was an indication of the offender’s favourable prospects of rehabilitation: Shaw v R at [45].

In Hurst v R, the underlying themes of the violent attacks on the victim, which included gratuitous cruelty, control, and an intention to humiliate and demean her, were said to demonstrate the very worst aspects of domestic violence and to indicate a very high level of moral culpability: Hurst v R at [162]–[164].

It is an aggravating factor if an offence is committed in breach of an Apprehended Domestic Violence Order (ADVO): Kennedy v R [2008] NSWCCA 21 at [8]; R v Macadam-Kellie [2001] NSWCCA 170 at [37]–[38]; R v Rumbel (unrep, 15/12/94, NSWCCA). Breaching an ADVO is distinct from a breach of conditional liberty simpliciter because it involves breaching an order specifically designed to protect the victim from further attacks: Cherry v R, above, at [80].

Section 12 Crimes (Domestic and Personal Violence) Act 2007 provides for the recording of “domestic violence offences” on a person’s criminal record when a person pleads guilty to or is found guilty of such an offence: s 12(2). If the court directs that an offence be recorded as a domestic violence offence, the prosecution may apply for further offences on the person’s record to be so classified: s 12(3). In the Second Reading Speech to the Bill, it was said that having a conviction for domestic violence “would leave a permanent stain on a person’s record and would be readily identifiable by a sentencing court or a court making a bail determination”.

A domestic violence offence is committed against a person with whom the offender has a domestic relationship. It is either a personal violence offence or an offence that arises substantially from the same circumstances as those from which a personal violence offence has arisen or is committed with the intention to coerce or control the victim or to cause that person to be intimidated or fearful (or both): s 11. A “domestic relationship” is defined in s 5. The definition of “personal violence offence” in s 4 includes all assault and wounding offences referred to in the list at [50-000] Introduction and statutory framework, except for the offences against s 25A Crimes Act 1900.

In addition, on convicting an offender of a domestic violence offence, a court must make an ADVO for the victim’s protection unless satisfied an order is “not required”: s 39 Crimes (Domestic and Personal Violence) Act 2007.

In R v Smith [2005] NSWCCA 286 Latham J said at [54]:

Similar comments were made in R v O’Kane (unrep, 9/3/95, NSWCCA), a case involving seven counts of maliciously inflicting grievous bodily harm by the offender on his infant son:

Personal and general deterrence are important considerations in sentencing for offences of violence against prison officers: R v Davis (unrep, 4/2/94, NSWCCA).

The vast power differential arising when a prison officer assaults an inmate is relevant to assessing the objective seriousness of the offence, particularly as it relates to matters of aggravation. Prison officers have authority over inmates who are entitled to assume such officers will not abuse that position of authority: Waterfall v R [2019] NSWCCA 281 at [34]–[37]. In that case, an appeal against a sentence of 5 years, 9 months imprisonment with a non-parole period of 3 years, 9 months was dismissed. The court concluded that while the sentence was substantial, it appropriately reflected the gravity of the offence: at [52]–[53].

General deterrence is also important in cases of very serious violence in a prison and sentences for such offences must demonstrate that violence and disorder between prisoners is not tolerated. Prisoners are sentenced to be deprived of their liberty, not suffer brutality at the hands of other prisoners. It is material to the seriousness of an offence that an inmate is vulnerable because their movements are restricted: Tohifalou v R [2018] NSWCCA 283 at [40]–[41].

In R v Duncan [2004] NSWCCA 431, Wood CJ at CL said at [218]:

The actual or threatened use of a weapon will generally aggravate a personal violence offence: s 21A(2)(c) Crimes (Sentencing Procedure) Act 1999 — provided it does not constitute an inherent element of the offence.

While it is rare for an offence under s 33 not to involve the use of a weapon, the use of a weapon is not an essential element of that offence. Where a weapon has been used in the commission of an offence under s 33 it should be taken into account as an aggravating factor: R v Chisari [2006] NSWCCA 19 at [31]; R v Deng [2007] NSWCCA 216 at [7], [63]; R v Dickinson [2004] NSWCCA 457 at [23]–[24]; Nowak v R [2008] NSWCCA 89 at [17].

In R v Sharpe [2006] NSWCCA 255 (threaten use of weapon to resist arrest, s 33B(2)), it was held that it would be impermissible to have additional regard to the threatened use of a weapon as an aggravating factor given that the threat to use an offensive weapon is an element of the s 33B(2) offence: R v Sharpe at [49].

Many objects not inherently answering the description “weapon” (for example, motor vehicles: R v Barton [2001] NSWCCA 63; R v Kumar [2003] NSWCCA 254), are nonetheless capable of being so regarded by virtue of their use as a weapon: R v Smith [2005] NSWCCA 286 at [38].

The degree of premeditation or planning is a relevant factor when assessing the objective seriousness of an offence: R v King [2004] NSWCCA 444 at [174]; Vragovic v R [2007] NSWCCA 46 at [32] (both s 33 cases). Section 21A(2)(n) provides as an aggravating factor the fact that the “offence was part of a planned or organised criminal activity”. The converse is a mitigating factor: s 21A(3)(b).

The fact that an offence is unprovoked and unjustified is a matter to be taken into account when assessing its objective seriousness: R v Matzick [2007] NSWCCA 92 at [23]; R v Reid [2005] NSWCCA 309 at [25]; R v Mackey [2006] NSWCCA 254 at [14] (all s 33 cases). Members of the public have a fundamental right to go about their business without fear of being attacked: R v Woods (unrep, 9/10/1990, NSWCCA); Vaeila v R [2010] NSWCCA 113 at [22]; Mansour v R; Hughes v R [2013] NSWCCA 35 at [43]; R v Tuuta [2014] NSWCCA 40 at [52]; Kocyigit v R [2018] NSWCCA 279 at [36].

It is an aggravating factor where the offence is committed in company: R v Maher [2005] NSWCCA 16 at [34]; s 21A(2)(e) Crimes (Sentencing Procedure) Act 1999.

The exception is where this factor is an element of the offence, for example, offences under ss 59(2), 35(1), 35(3) and 33B(2). Furthermore, it would be erroneous to take into account as an aggravating factor the commission of an offence in company where that factor would warrant a conviction for a more serious offence: R v Tran [2005] NSWCCA 35 at [17].

Section 21A(2)(l) provides as an aggravating factor the fact “that the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant)”. The fact that the victim was a security officer is an aggravating factor pursuant to s 21A(2)(l): R v Do [2005] NSWCCA 183.

In Nowak v R [2008] NSWCCA 89, the judge erred in finding that it was an aggravating factor that the victim was “vulnerable in the extreme” on the basis that the victim was unarmed when struck by a man wielding a bottle. It was observed, “All victims are, to some extent at least, vulnerable. But that is not the sense in which the expression is to be understood in the present context”: at [28]. Reference was made in that case to R v Tadrosse (2005) 65 NSWLR 740, where it was said that s 21A(2)(l) “is concerned with the weakness of a particular class of victim and not with the threat posed by a particular class of offender”: at [26].

The fact that the victim was unarmed would not generally constitute an aggravating factor under s 21A(2)(l), although such vulnerability may arise from defencelessness or helplessness: Morris v R [2007] NSWCCA 127 at [15]. However, there may be greater scope for a finding of vulnerability at common law on the basis that the common law survives the introduction of s 21A (s 21A(1)(c)); see R v Porter [2008] NSWCCA 145 at [87]. In R v Esho [2001] NSWCCA 415 the court held that the fact that the applicant, who was armed with a knife, knew that the victim was defenceless, was a factor that aggravated the offence: R v Esho at [142].

The commission of the offence in the security of the victim’s home aggravates an offence: R v Pearson [2002] NSWCCA 429 at [90]; R v Achurch [2004] NSWCCA 180 at [33]; R v Brett [2004] NSWCCA 372 at [46]; R v Hookey [2004] NSWCCA 223 at [18]; s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999. See further the discussion in Section 21A factors “in addition to” any Act or rule of law at [11-105].

Section 21A(2)(f) provides that an offence is aggravated if it involves gratuitous cruelty. Gratuitous cruelty requires more than an offence being committed without justification and causing great pain: McCullough v R [2009] NSWCCA 94 at [30]. For offences that are by their nature violent, there needs to be something more than the offender merely having no justification for causing the victim pain: McCullough v R at [30]. For instance, the factor may be present in a case of malicious wounding due to the nature and purpose of the wounding, for example, it involved torture: McCullough v R at [31].

The 3½-year-old victim in R v Olsen [2005] NSWCCA 243 was found to have 57 injuries, including intra-retinal haemorrhages and flexion extension injuries to the neck indicating that he had been severely shaken. The child was also suffering from dehydration. The injuries inflicted included bite marks and indicated that there had been a large number of forcible impacts with the child’s body. It was held that the sentencing judge correctly found that the offence involved gratuitous cruelty: at [17].

Punching and kicking a pregnant woman in the abdomen causing her foetus to miscarry constitutes gratuitous cruelty: R v King [2004] NSWCCA 444 at [139].

In R v Smith [2005] NSWCCA 286 it was held that the throwing of hot water onto a child did not constitute gratuitous cruelty. Latham J said at [37] that gratuitous cruelty:

Section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 provides as an aggravating factor that “the injury, emotional harm, loss or damage caused by the offence was substantial.” The converse is a mitigating factor under s 21A(3)(a).

Since inflicting of grievous bodily harm is an element of offences under both s 35(1)–(2) and s 33(1)(b) and (2)(b), the bare fact that grievous bodily harm was caused cannot be treated as an aggravating factor of itself: R v Zoef [2005] NSWCCA 268 at [123]; R v Cramp [2004] NSWCCA 264 at [65] (s 33 cases); R v Heron [2006] NSWCCA 215 at [49]; Nowak v R [2008] NSWCCA 89 at [19]–[26] (s 35). However, where the extent of the victim’s injury significantly exceeds the minimum necessary to qualify as grievous bodily harm, the injury may constitute an aggravating factor: R v Zoef, above, at [123] (where the victim suffered permanent paralysis); R v Chisari [2006] NSWCCA 19 at [22] (where the victim was required to undergo surgery, had ongoing medical problems and was unable to work).

In R v Heron [2006] NSWCCA 215, it was held that the sentencing judge also erred in having regard to the potential effect of the injury by speculating as to what might have happened had first aid not been provided. The potential of the injury was not a matter which could be properly taken into account for the purposes of s 21A(2)(g). What might have occurred had timely first aid not been provided is an irrelevant consideration when applying s 21A(2)(g): at [49].

The fact that the victim’s injuries healed or were not substantial may be taken into account in the offender’s favour: R v Shauer [2000] NSWCCA 91 at [13]; s 21A(3)(a) Crimes (Sentencing Procedure) Act 1999.

Section 21A(3)(c) Crimes (Sentencing Procedure) Act 1999 provides that it is a mitigating factor where the offender was provoked by the victim into committing the offence. In R v Ferguson [1999] NSWCCA 214 at [29], Smart AJ stated: “It is of the essence of provocation that the acts of others cause offenders to lose their self control and embark upon criminal conduct often of the utmost gravity”.

Provocation can reduce the objective criminality appreciably: R v Ferguson, above, at [29]; see for example, R v Fragoso (unrep, 24/2/94, NSWCCA). In R v Ryan [2006] NSWCCA 394, the fact that the offence of maliciously inflict grievous bodily harm (s 35) was triggered by what both offenders reasonably thought had been a sexual assault on one of their partners was held to be a mitigating factor under s 21A(3)(c): at [28]. On the other hand, it was held in R v Mitchell [2007] NSWCCA 296 at [30] that a vicious attack in retribution for alleged prior sexual abuse was “of limited mitigating value”.

The extent to which provocation constitutes a mitigating factor depends on the relationship and proportion between the provocative conduct and the offence. In R v Buddle [2005] NSWCCA 82, Wood CJ at CL said at [11]:

In some cases the offender’s conduct will be so disproportionate to the provocation that it will be open to find that there was no mitigation: R v Mendez [2002] NSWCCA 415 at [16]. In Shaw v R [2008] NSWCCA 58 at [26], it was held that “relationship tension and general tension” in the context of domestic violence offences did not constitute provocative conduct such as to amount to mitigation.