R v Eckermann [2013] NSWCCA 188

R v Eckermann [2013] NSWCCA 188

The sentencing judge erred in characterising the offence as towards the lower end of the range for s 112(2) offending. It was not open to find that the offence was less frightening because the respondent was known to the victim, and the prior domestic relationship did not reduce seriousness. The judge also gave too much weight to the respondent's motive of concern for his children and overlooked the aggravating significance of the offence being committed in the presence of children. Although no error was shown in the formal approach to suspension, the suspended sentence was manifestly inadequate given the serious domestic violence offending and the need for deterrence, denunciation and...

Jurisdiction
Australia
Judgment Date
15 August 2013
Procedural Posture
Crown Appeal Against Sentence / Appeal to the Court of Criminal Appeal From Sentence Imposed in the District Court; Re Sentencing
Outcome
Appeal allowed; sentence quashed; respondent re-sentenced to imprisonment with a non-parole period and parole direction.
Legal Topics
['aggravated Break and Enter and Commit Serious Indictable Offence' 'assault Occasioning Actual Bodily Harm' 'objective Seriousness' 'suspended Sentence' 'manifest Inadequacy' 'crown Appeal Against Sentence' 'special Circumstances' 'parole Direction']
['criminal Law' 'sentencing' 'domestic Violence'] ['aggravated Break and Enter and Commit Serious Indictable Offence' 'assault Occasioning Actual Bodily Harm' 'objective Seriousness' 'suspended Sentence' 'manifest Inadequacy' 'crown Appeal Against Sentence' 'special Circumstances' 'parole Direction']

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Procedural Posture

Crown Appeal Against Sentence / Appeal to the Court of Criminal Appeal From Sentence Imposed in the District Court; Re Sentencing

Legal Issues

  1. 1 ["Whether the sentencing judge erred in assessing the objective gravity of the respondent's crime." 'Whether the sentencing judge gave too much weight to the fact that the respondent was known to the victim in assessing objective gravity.' "Whether the respondent's motive in going to the home reduced the objective seriousness of the offence." 'Whether the sentencing judge overlooked the aggravating factor that the offence was committed in the presence of children.' 'Whether the sentencing judge erred in his approach to suspension of the sentence.' 'Whether the suspended sentence was manifestly inadequate.' 'Whether the Court should exercise its residual discretion not to intervene on a Crown appeal.']

Ratio Decidendi

The sentencing judge erred in characterising the offence as towards the lower end of the range for s 112(2) offending. It was not open to find that the offence was less frightening because the respondent was known to the victim, and the prior domestic relationship did not reduce seriousness. The judge also gave too much weight to the respondent's motive of concern for his children and overlooked the aggravating significance of the offence being committed in the presence of children. Although no error was shown in the formal approach to suspension, the suspended sentence was manifestly inadequate given the serious domestic violence offending and the need for deterrence, denunciation and...

Court Disposition

Appeal allowed; sentence quashed; respondent re-sentenced to imprisonment with a non-parole period and parole direction.

Orders

  • ['Appeal allowed.' 'Sentence imposed by Hosking SC ADCJ on 26 March 2013 quashed.' 'In lieu thereof sentence the respondent to imprisonment with a non-parole period of 14 months commencing on 23 March 2013 and expiring on 22 May 2014 and a balance of term of 10 months expiring on 22 March 2015.' 'Direct that the...