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Court of Criminal Appeal 25 October 1999

R v Hampton

[1999] NSWCCA 341

Assault & violenceFirearms & weapons

Citation: R v Hampton [1999] NSWCCA 341
Court: New South Wales Court of Criminal Appeal
Date: 25 October 1999
Judge(s): Stein JA; Hulme J; Greg James J

Background

The appellant, Julie Ann Hampton, pleaded guilty in the District Court to two counts of assault occasioning actual bodily harm arising from a street altercation on New Year's Eve 1997. During the incident, she punched one victim and then produced a knife, stabbing a second victim twice in the back. Two further matters were taken into account on a Form 2 (a procedure allowing related charges to be considered at sentencing without a formal conviction).

Judge Latham of the District Court sentenced Hampton to a minimum term of two years and three months penal servitude, with an additional term of nine months on the first count, and a concurrent fixed term of one year on the second count. The sentencing judge noted Hampton's extensive criminal history dating from age twelve, her entrenched heroin addiction, and the objective seriousness of the offences.

Hampton sought leave to appeal against the sentence, arguing that the sentencing judge had improperly taken into account matters beyond the scope of the charges and that the sentence was manifestly excessive.

  • Whether Judge Latham breached the principle in R v De Simoni by taking into account the nature and extent of the stab wounds when sentencing for the lesser offence of assault occasioning actual bodily harm, effectively punishing for a more serious offence not charged.
  • Whether the sentence imposed was manifestly excessive having regard to comparable sentences and the Judicial Commission statistics.
  • Whether the sentencing court properly applied the principle from Veen v R (No 2) when considering Hampton's prior criminal record.

Decision

The Court of Criminal Appeal rejected the De Simoni argument. The sentencing judge had herself carefully acknowledged the De Simoni principle, expressly stating that she was not sentencing on the basis that Hampton had intentionally or recklessly wounded the victim. The Court found that taking into account the production of a knife as an aggravating circumstance was permissible: a person can produce a knife during an assault occasioning actual bodily harm without thereby committing the more serious offence of wounding. The sentencing judge had drawn this distinction correctly.

The argument that the sentencing judge's language, including references to "stab wounds" and injuries "inflicted upon the victims," revealed a departure from the stated approach was rejected. Hulme J observed that the Crown held evidence capable of supporting substantially more serious charges, and that the characterisation of the offences as "objectively serious" was plainly open on the facts.

On the question of manifest excess, the Court accepted that the sentence sat at the high end of the range indicated by Judicial Commission statistics. All three judges concluded, however, that the sentence remained within the legally permissible range when Hampton's lengthy criminal history, the objective seriousness of the offending, and the need to protect the community were considered. Greg James J confirmed that the appellate task is not to substitute the appeal judges' own view of an appropriate sentence, but to determine whether the sentencing discretion was exercised within permissible limits.

The Court also confirmed, per Hulme J and Greg James J, that the reference to Hampton's prior record was made in the limited sense endorsed in Veen v R (No 2): not to aggravate the offence itself, but to assess whether leniency was appropriate and to account for the protection of the community.

Orders Made

  • Application for leave to appeal refused.

Key Takeaways

  • Producing a knife during an assault occasioning actual bodily harm can be treated as an aggravating circumstance at sentence without offending the De Simoni principle, provided the sentencing court does not punish the offender for the more serious elements of an uncharged offence such as wounding.
  • Under De Simoni, a sentencing court may take into account circumstances that aggravate the charged offence, but must stop short of treating conduct that would constitute a more serious uncharged offence as a basis for the sentence.
  • A prior criminal record is relevant at sentencing in the manner confirmed by Veen v R (No 2): it informs whether leniency is appropriate and bears on the protection of the community, but does not operate to aggravate the seriousness of the offence itself.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that appellate intervention requires identification of an error of principle or a result so far outside the available range as to demonstrate such error; the mere fact that appeal judges might have imposed a different sentence is not sufficient.
  • No error was established in the sentencing judge's characterisation of the offences as objectively serious, even where the language used to describe the facts reflected the gravity of the physical harm caused.

Legislation and Cases Referenced

Cases:
- R v De Simoni (1980-1981) 147 CLR 383
- Veen v R (No 2) (1988) 164 CLR 465

Legislation:
- Crimes Act 1900 (NSW), s 35 (malicious wounding/grievous bodily harm, referenced in the context of the De Simoni argument)