Criminal law: February 2017

Jonson v R [2016] NSWCCA 286 and R v Lulham [2016] NSWCCA 287

Aggravating factors on sentence – offence committed in the home of the victim or another – offender committed offence in their own home

The Crimes (Sentencing Procedure Act) 1999 (NSW) s 21A(2)(eb) provides that an offence is aggravated if committed in the home of the victim or any other person. There has been debate for some time about whether this applied to offenders in their own homes – that is, when they were not intruders. The CCA has now settled the question: the offender need not be an intruder, meaning an offence could be aggravated even if the offender commits an offence in their own home.

As a result of the ongoing debate on this topic, the Court of Criminal Appeal (‘CCA’) convened a five-judge bench to hear these two otherwise-unrelated decisions which shared this common issue.

Jonson twice sexually assaulted his partner and also recklessly inflicted grievous bodily harm on her, apart from other abusive conduct like forcing their children to tell the victim she was a bad mother and throwing a cup of tea at her. The judge took into account, amongst other things, that the offence was aggravated because the offences occurred in the victim’s home (also the offender’s home). The offender was sentenced to 9 years with a non-parole period of 6 years and 5 months. He appealed on the basis the sentence was excessive.

Lulham was convicted of wounding with intent to cause grievous bodily harm, with two counts of destroying some property taken into account on a Form 1. He was in a kind of relationship with a woman. He found out that the woman’s stepfather had been touching her inappropriately, and that he had also been abusing his wife (the woman’s mother). In a rage, Lulham initially smashed some property in the stepfather’s room.

Later, when the stepfather returned home, Lulham smashed his car mirror, and then finally hit him in the head twice with a hammer resulting in (relatively minor) wounds. Lulham was sentenced to 2 years imprisonment with a non-parole period of 1 month and 13 days (coincidentally, the exact amount of time he had spent bail refused – with the consequence he had no further non-parole period to serve). The judge took into account that the offences had occurred at the home of the victim, which was also the offender’s home. The Crown appealed, on the basis the sentence was manifestly inadequate.

Jonson and Lulham were heard the same day, by the same five judges. If you are only going to read one of them (and who, other than maybe a lowly case note author, has time to read all these decisions?) then Jonson is the more thorough. After reviewing the authorities on the question, Bathurst CJ (Beazley P; Hall, Bellew and N Adams JJ agreeing) concluded there was no basis for limiting the aggravating factor to circumstances where the offender was an intruder (at [40]-[41], [50] of Jonson). That is: the aggravating factor also applies in circumstances where the offender is in his or her own home. That is so because the language of the section does not, in terms, exclude that result. Moreover, the interpretation is supported by the Second Reading Speech, which specifically said ‘The Government takes the position that any offence committed in the home of the victim, even if it is also the home of the accused … violates that person’s reasonable expectation of safety and security.’ (at [10] – emphasis added).

However, the Court also noted that the mere fact that the aggravating factor
can extend to offences where the offender was not an intruder does not mean that it simply applies in all circumstances where the offence occurs in a home. A sentencing court must come to the conclusion that it actually aggravates the offence in question
(at [52]).

That is, practitioners may still be able to submit that in the particular circumstances of the case at hand, the aggravating factor did, or did not, add anything to the criminality involved (bearing in mind the entitlement of victims to feel safe in their own homes).

The appeal by Jonson was duly dismissed. Although the CCA found that the original sentence in Lulham was manifestly inadequate, it declined to allow the appeal for discretionary reasons (the so-called ‘residual discretion’) relating to the fact the sentence had almost expired and he had made significant progress to rehabilitation.