DH v R [2017] NSWCCA 64

DH v R [2017] NSWCCA 64

The sentencing judge did not err in assessing objective seriousness: the relevant finding was that the overall criminality was around the midpoint of objective seriousness, not objectively high, and that assessment was justified by the premeditated forced entry, significant aggression and violence, the presence of children, the offence occurring in the victim's home, and the Applicant being on conditional liberty. The comparable cases and statistics did not show manifest excess. The triple-0 recording was permissibly used to understand the context and atmosphere of the offending, not to contradict the agreed facts. The sentence was stern but not so wrong as to demonstrate misapplication...

Jurisdiction
Australia
Judgment Date
07 April 2017
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From an Aggregate Sentence Imposed by Robison DCJ on 21 April 2016
Outcome
Leave to appeal against sentence granted; appeal dismissed.
Legal Topics
['domestic Violence' 'aggregate Sentence' 'break and Enter With Intention to Commit Serious Indictable Offence' 'contravention of Apprehended Violence Order' 'objective Seriousness' 'manifest Excess']
['criminal Law' 'sentencing'] ['domestic Violence' 'aggregate Sentence' 'break and Enter With Intention to Commit Serious Indictable Offence' 'contravention of Apprehended Violence Order' 'objective Seriousness' 'manifest Excess']

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From an Aggregate Sentence Imposed by Robison DCJ on 21 April 2016

Legal Issues

  1. 1 ['Whether the sentencing judge erred in classifying the objective seriousness of the aggravated break and enter offence under s 112(2) of the Crimes Act 1900.' 'Whether the aggregate sentence, or the indicative sentence for the s 112(2) offence, was manifestly excessive.' 'Whether the sentencing judge gave undue weight to the triple-0 recording.']

Ratio Decidendi

The sentencing judge did not err in assessing objective seriousness: the relevant finding was that the overall criminality was around the midpoint of objective seriousness, not objectively high, and that assessment was justified by the premeditated forced entry, significant aggression and violence, the presence of children, the offence occurring in the victim's home, and the Applicant being on conditional liberty. The comparable cases and statistics did not show manifest excess. The triple-0 recording was permissibly used to understand the context and atmosphere of the offending, not to contradict the agreed facts. The sentence was stern but not so wrong as to demonstrate misapplication...

Court Disposition

Leave to appeal against sentence granted; appeal dismissed.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal dismissed.']