McLaughlin v R [2013] NSWCCA 152

McLaughlin v R [2013] NSWCCA 152

The sentencing judge erred by treating the offences as aggravated by the generalised presence of a child, because the strict evidentiary requirements for s 21A(2)(ea) were not met. However, having regard to the objective and subjective circumstances, including repeated domestic violence against a vulnerable victim, psychological harm, the applicant's record, and the commission of counts 2 and 3 in breach of a bond and an AVO, the sentences were not manifestly excessive and no lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912.

Jurisdiction
Australia
Judgment Date
03 July 2013
Procedural Posture
Application for Leave to Appeal Against Severity of Sentence / Court of Criminal Appeal; Leave to Appeal Granted and Appeal Dismissed
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['severity Appeal' 'assault Occasioning Actual Bodily Harm' 'common Assault' 'domestic Violence' 'aggravating Factors' 'offence Committed in the Presence of a Child' 'manifest Excess' 'apprehended Violence Order' 'bond Breach']
['criminal Law' 'sentencing' 'criminal Appeals'] ['severity Appeal' 'assault Occasioning Actual Bodily Harm' 'common Assault' 'domestic Violence' 'aggravating Factors' 'offence Committed in the Presence of a Child' 'manifest Excess' 'apprehended Violence Order' 'bond Breach']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Severity of Sentence / Court of Criminal Appeal; Leave to Appeal Granted and Appeal Dismissed

Legal Issues

  1. 1 ['Whether the sentencing judge erred by finding that the offences were aggravated by being committed in the generalised presence of a child under 18 years of age.' 'Whether the sentences imposed were manifestly excessive, individually or in the aggregate.' 'Whether, despite the established error, a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912.']

Ratio Decidendi

The sentencing judge erred by treating the offences as aggravated by the generalised presence of a child, because the strict evidentiary requirements for s 21A(2)(ea) were not met. However, having regard to the objective and subjective circumstances, including repeated domestic violence against a vulnerable victim, psychological harm, the applicant's record, and the commission of counts 2 and 3 in breach of a bond and an AVO, the sentences were not manifestly excessive and no lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

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