Citation: Regina v France [1999] NSWCCA 428
Court: NSW Court of Criminal Appeal
Date: 29 October 1999
Judge(s): Simpson J; Kirby J
Background
The applicant, a young man aged nineteen at the time of the offence, pleaded guilty in the District Court to a charge of malicious wounding under the Crimes Act 1900. The offence arose from an altercation on 5 December 1997, when the applicant became involved in a loud argument on a public telephone and was asked by a nearby video store proprietor to lower his voice. What followed was disputed: the victim suffered an injury to his left temple, and the applicant was in possession of a knife, though he maintained it remained concealed in its scabbard throughout.
The applicant handed himself in to police two days after the incident, participated in a lengthy interview, and acknowledged the assault, though his version of events differed from the victim's in material respects. He had an extensive criminal history, including offences committed before and after this incident, for which he had been sentenced separately in the Local Court in April 1998.
Twigg DCJ sentenced the applicant on 11 December 1998 to a total term of five years penal servitude, structured as equal minimum and additional terms of two and a half years each. The sentence was backdated to commence on 21 April 1998 to align with the earlier Local Court sentences, meaning the practical effect was an additional fifteen months of minimum term on top of what the applicant was already serving.
Legal Issues
- Whether the sentencing judge erred in proceeding on the factual basis that the applicant used his knife as a weapon during the assault, when this was disputed and the victim did not give evidence at the sentencing hearing
- Whether the total sentence of five years was excessive in all the circumstances, including the applicant's youth, background, subjective circumstances, and prospects of rehabilitation
- How to properly structure a sentence where an offender has already been sentenced for related offences committed around the same time
Decision
The Court of Criminal Appeal identified a significant factual dispute at the heart of the sentencing. The victim's account suggested the applicant struck him with the knife's butt, but the victim himself did not allege the blade was directed at him. The applicant denied producing the knife at all, maintaining it fell from him during the scuffle. Because the victim did not give evidence at the sentencing hearing, the Court found the sentencing judge could not proceed on the basis that the knife was actively used as a weapon.
On the question of the overall sentence, the Court noted that the five-year total term was at the higher end for an offence carrying a maximum of seven years, particularly given the applicant's youth, his guilty plea, and his voluntary attendance at police. The Court acknowledged the sentencing judge's approach of backdating the sentence to overlap with the Local Court sentences, but observed it would have been preferable for all offences to have been dealt with together given they arose from broadly the same period of offending.
Taking into account the factual errors in the sentencing exercise, the Court conducted a re-sentencing. It also had regard to what was described as commendable conduct by the applicant during his time in custody, including participation in rehabilitation programmes and demonstrated prospects of rehabilitation, notwithstanding difficult conditions including periods in protective custody and episodes of depression.
Orders Made
- Leave to appeal granted
- Appeal allowed and the original sentence quashed
- In substitution, the applicant was sentenced to a total term of penal servitude of three and a half years, comprising a minimum term of one year and nine months commencing 20 April 1998 and expiring 19 January 2000, and an additional term of one year and nine months commencing 20 January 2000 and expiring 19 October 2001
Key Takeaways
- Where a disputed factual matter at sentencing is resolved against an offender, that finding must be supported by the evidence before the court; where the victim did not give oral evidence, the sentencing court could not rely on a version of events that the offender had directly contested.
- A sentence of five years for malicious wounding, against a statutory maximum of seven years, was found to be excessive in circumstances involving a young first-time custodial offender, a guilty plea, voluntary surrender to police, and no established use of the knife as a weapon.
- Sentencing courts dealing with offences committed around the same time as other matters for which an offender has already been sentenced should, where possible, deal with all offences together; where that does not occur, the cumulative practical effect on the offender's minimum term remains a relevant consideration.
- In re-sentencing, the Court of Criminal Appeal treated evidence of rehabilitation efforts and improved conduct in custody as material factors bearing on the appropriate sentence.
- Under s 35(a) of the Crimes Act 1900, malicious wounding carries a maximum penalty of seven years penal servitude; the proximity of a sentence to that maximum requires justification commensurate with the objective seriousness of the particular offence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 35(a) (malicious wounding; maximum penalty of seven years penal servitude)
- Sentencing Act 1989 (NSW), s 5(2) (special circumstances permitting variation of minimum and additional term ratio)
Cases cited: None identified in the provided text.