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11
Court of Criminal Appeal 12 April 1999

Regina v Campbell

[1999] NSWCCA 76

Assault & violence
CRIMINAL LAW PRACTICE AND PROCEDURE SENTENCE APPEAL

Citation: Regina v Campbell [1999] NSWCCA 76
Court: NSW Court of Criminal Appeal
Date: 12 April 1999
Judge(s): Grove J; Kirby J

Background

The appellant pleaded guilty in the District Court to maliciously inflicting grievous bodily harm under s 35(b) of the Crimes Act 1900. The offence arose from a violent assault at night following a birthday party, in which the appellant, then 20 years old and affected by alcohol, marijuana, and heroin, repeatedly struck the victim on the head with a tyre lever or steel rod inside a vehicle. The victim was left unconscious by the roadside and sustained a depressed compound skull fracture, multiple other fractures, and scalp lacerations.

The sentencing judge in the District Court granted a Griffiths remand (an adjournment of sentencing to allow rehabilitation) so the appellant could attend the Salvation Army's Miracle Haven programme. By the time the matter returned for sentencing in June 1998, the appellant had completed the 12-month programme, received high praise from the Salvation Army, and was assessed as genuinely contrite with a significantly changed attitude.

Acting Judge Nader imposed a total sentence of three years, structured as a minimum term of 12 months and an additional term of two years, adjusted for time in custody. The appellant sought leave to appeal, arguing the sentence was excessive on several grounds.

  • Whether the sentencing judge gave adequate recognition to the guilty plea, entered at the first opportunity
  • Whether the sentencing judge erred in characterising the offence as among the worst examples under the relevant provision
  • Whether the sentencing judge gave insufficient weight to the appellant's youth when applying the principle of general deterrence
  • Whether the year spent in rehabilitation ought to have been taken into account when computing the minimum term

Decision

On the guilty plea, Kirby J found no error. The sentencing judge had expressly acknowledged the plea and accepted contrition. The Court of Criminal Appeal declined to disturb that aspect of the reasoning.

On the characterisation of objective seriousness, Kirby J concluded that the sentencing judge had overstated the severity of the offence. While the assault was undeniably serious and caused significant injury, it was probably not accurate to describe it as among the worst examples of offences under the section. This was a relevant error.

The treatment of general deterrence in the context of the appellant's youth was the weightiest ground. Kirby J drew on established authority holding that, for young offenders, considerations of punishment and general deterrence may properly be displaced in favour of individualised treatment directed to rehabilitation. The sentencing judge had acknowledged the risk of reoffending if the appellant returned to custody, yet nonetheless treated general deterrence as the "overwhelming and dominant" factor. The Court found this placed insufficient weight on the appellant's youth and his strong subjective case.

On the question of the rehabilitation year, Kirby J accepted that the time spent at Miracle Haven had to be factored into the minimum term. Grove J added that, by the time of the appeal, the appellant had also volunteered with the Salvation Army after completing the programme and had secured permanent employment. Both judges agreed that returning him to custody would serve no useful purpose, and the sentence was restructured accordingly.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the East Maitland District Court quashed
  • In lieu thereof, and taking into account the matters on Form 1, the appellant sentenced to a minimum term of penal servitude of 2 months and 25 days, commencing 1 June 1998 and concluding 25 August 1998, together with an additional term of 18 months commencing 26 August 1998
  • Appellant released on parole with effect from 26 August 1998, subject to supervision by the Probation and Parole Service

Key Takeaways

  • For young offenders, established authority permits the sentencing court to largely discount general deterrence in favour of individualised, rehabilitation-focused treatment, though this does not erase the objective seriousness of the offence.
  • Characterising an offence as among the worst examples of its kind carries real sentencing consequences; the Court of Criminal Appeal confirmed that such a characterisation must be supportable on the facts and will be reviewed if overstated.
  • A Griffiths remand, granted to enable rehabilitation, carries an implicit expectation that successful completion will be meaningfully reflected in the eventual sentence structure, including the computation of the minimum term.
  • Where a sentencing court expressly identifies the risk that imprisonment may cause relapse yet still treats general deterrence as the dominant factor, that reasoning may constitute error when weighed against the offender's youth and strong subjective case.
  • Evidence of post-sentence rehabilitation and productive employment, presented by affidavit on appeal, formed part of the factual foundation the Court of Criminal Appeal relied on when resentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(b) (maliciously inflicting grievous bodily harm)

Cases:
- GDP v R (1991) 53 A Crim R 112
- G S & T v R (NSW Court of Criminal Appeal, unreported, 12 October 1989)
- R v Eastway (NSW Court of Criminal Appeal, unreported, 19 May 1992)
- R v Wilcox (unreported, referred to in GDP v R)