R v Sharrouf [2023] NSWCCA 137
R v Sharrouf [2023] NSWCCA 137 · Read the judgment on AustLII
Catchwords: Sentencing – Domestic Violence offences – Conviction only outcomes
In this decision the Court of Criminal Appeal (‘CCA’) has determined that the use of a s 10A (i.e. a conviction with no other penalty) should be rare in domestic violence offences where the offence is considered to be objectively serious.
Following a judge-alone trial, the respondent (this was a Crown appeal) was found guilty of 24 counts out of an original 40 on indictment. The offences were committed against his partner, to whom he was married (albeit it was a cultural marriage and not registered as a legally-recognised union). Ten of the counts of which he was found guilty were of a sexual nature ranging from aggravated sexual assault to indecent assault, with the balance being offences of violence variously involving choking, using an offensive weapon to intimidate, assault occasioning actual bodily harm, and common assault. The respondent was sentenced to 10 years with a non-parole period of 5 years. Crucially for present purposes, seven of the offences (five common assaults, one assault occasioning actual bodily harm, and the indecent assault) resulted in an order under s 10A of the Crimes (Sentencing Procedure) Act 1999 (‘the Sentencing Act’) – that is, a conviction with no further penalty.
The Crown appealed against the asserted inadequacy of the overall sentence on grounds including that the judge erred in imposing four out of those seven s 10A penalties, and that the sentence overall was manifestly inadequate; this summary only deals with those aspects of the judgment.
The facts for the offences which which resulted in s 10A orders involved, at various times, repeatedly slamming the victim’s head into the closed passenger side window of the car, repeatedly striking the victim with a rolling pin and then placing a pillow over the her head so that she felt like she was choking, and kissing the victim so roughly that her lips bled and sucking her neck so forcefully that she was left with bruising. All the offending, it was found by the Court, was motivated by the respondent’s desire to dominate his wife, using violence to instil fear and control her (at [180]).
The Court (Price J, with whom Wilson J agreed, Dhanji J agreeing in part and dissenting in part) referred to a range of statements by the CCA and the High Court which emphasise the gravity of domestic violence offences (at [182]-[186]). The recording of a conviction may have serious consequences for an offender, but general sentencing principles still apply to s 10A, and where an offence is objectively serious and it is important to reflect general deterrence, denunciation, and the protection of the community, then the scope for the use of s 10A must necessarily be substantially diminished. Indeed, whilst the current sentencing legislation does not prohibit a s 10A outcome in domestic violence cases, nevertheless the appropriate use of a s 10A outcome in those matters must be rare (at [188]). That is particularly so given ss 4A of the Sentencing Act, which emphasises the seriousness of domestic violence offences, and requires that if a sentencing judge or magistrate does not impose fulltime detention or a supervised order, then reasons must be provided (at [190]).
For those and other reasons, the sentence was held (unanimously) to be manifestly inadequate, and (by majority) the respondent was resentenced to 14 years with a non-parole period of 9 years.