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Court of Criminal Appeal 4 August 2000

Regina v Drew

[2000] NSWCCA 384

Assault & violence

Citation: Regina v Drew [2000] NSWCCA 384
Court: NSW Court of Criminal Appeal
Date: 4 August 2000
Judge(s): Newman J, Sperling J

Background

The applicant, Clarence Drew, pleaded guilty before Ducker DCJ in the District Court at Lismore to maliciously wounding with intent to do grievous bodily harm, contrary to section 33 of the Crimes Act 1900. The charge arose from a planned group attack on a man named Allan Williams at a football ground in South Casino. The Crown had originally charged the applicant with wounding with intent to murder, but accepted the lesser plea.

The attack was premeditated and carried out by five people, including the applicant, who armed themselves with an iron bar, a piece of timber, a knife, a beer bottle, and a machete. The victim suffered severe injuries, including a 14-centimetre laceration across the bridge of his nose and both cheeks, fractures of the nasal bones, exposure of the cheek bone, and multiple other lacerations to the head.

The background to the attack involved long-standing tensions within an Aboriginal community at Box Ridge, where the victim held authority as administrator of the Bogan Lands Council. It was alleged that those in power distributed scarce community funds to relatives and associates, to the disadvantage of others in the community, including people close to the applicant.

  • Whether the head sentence of ten and a half years (comprising a minimum term of seven years and an additional term of three and a half years) was manifestly excessive
  • What weight should be given to the applicant's disadvantaged Aboriginal background, including the community context of the offence, under the principles in R v Fernando
  • Whether the mitigating force of those background factors was diminished by the applicant's prior criminal history

Decision

Newman J, with whom Sperling J agreed, dismissed the appeal. The Court found the sentencing judge had not erred, and that the objective circumstances of the attack were among the most serious. The attack was premeditated, carried out in company, and involved a machete, a weapon the Court emphasised it treats with great seriousness.

The Court acknowledged the applicant's background of deprivation and the social tensions within the Box Ridge community. The sentencing judge had considered the principles in R v Fernando, which recognise that disadvantaged Aboriginal background can be a mitigating factor. However, following the Court of Criminal Appeal's earlier reasoning in R v Hickey, the Court held that such mitigating considerations carry substantially reduced weight where the offender has a history of similar serious offences. The applicant had multiple prior convictions for violence, including three for malicious wounding.

While the applicant's early guilty plea and the community context were taken into account, the Court held these factors did not render the sentence manifestly excessive. The sentencing judge was entitled to impose what the Court described as "condign punishment" given the gravity of the offending.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the mitigating force of disadvantaged Aboriginal background, recognised under R v Fernando, loses much of its weight where the offender has repeatedly committed similar serious offences in the past.
  • A machete is treated as a very dangerous weapon by the Court of Criminal Appeal, and its use in an assault is regarded as a serious aggravating factor.
  • Premeditation and participation in a group attack are significant aggravating features that bear heavily on the appropriate sentence for wounding offences under section 33 of the Crimes Act 1900.
  • In dismissing the appeal, the Court confirmed that a sentencing judge sentencing for malicious wounding (rather than attempted murder) must keep focus on the actual charge, though the serious objective features of the conduct remain highly relevant.
  • Sentencing statistics from the Judicial Commission may be raised in support of a manifest excess argument, but they do not override a proper assessment of the individual circumstances of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33 (maliciously wound with intent to do grievous bodily harm; maximum penalty 25 years penal servitude)

Cases:
- R v Fernando (1992) 76 A Crim R 58
- R v Hickey, unreported, NSW Court of Criminal Appeal, 27 September 1994