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13
Court of Criminal Appeal 12 September 2001

R v Hayes

[2001] NSWCCA 358

Assault & violence
SENTENCING

Citation: R v Hayes [2001] NSWCCA 358
Court: NSW Court of Criminal Appeal
Date: 12 September 2001
Judge(s): Sully J, Carruthers AJ

Background

The appellant pleaded guilty to maliciously wounding with intent to do grievous bodily harm under s 33 of the Crimes Act 1900, following an attack on his brother's partner at a residential property in January 2000. The victim was beaten with a piece of wood for approximately twenty minutes, suffering a depressed skull fracture, fractures to both arms and hands, fractures to her nose, jaw and facial bones, and other injuries that required more than nine hours of surgery and the insertion of two steel plates and ten screws.

The appellant had a significant prior criminal history, including a 1983 conviction for the murder of his three-year-old daughter, for which he had served fifteen years before being released on parole. He had been living in the same household as the victim at the time of the offence.

The District Court sentenced the appellant to eleven years and eight months imprisonment, with a non-parole period of eight years and nine months, commencing from the date of his arrest. The sentence was to be served in protective custody. The appellant sought leave to appeal on the ground that the sentence was excessive, arguing that insufficient allowance had been made for his guilty plea.

  • Whether the sentencing judge gave sufficient weight to the appellant's guilty plea when fixing the sentence
  • Whether the sentence of eleven years and eight months, which sat at the top of the relevant statistical range, was manifestly excessive having regard to all circumstances
  • Whether the need to serve the sentence in protective custody warranted a reduction in the sentence

Decision

The Court of Criminal Appeal acknowledged that the sentence sat at the upper end of the range reflected in Judicial Commission statistics. However, the court found that the objective criminality of the offence was itself at the very top of the relevant range, describing the crime as "dreadful" in terms of its culpability. The attack was sustained, brutal, and accompanied by explicit statements of intent to kill, and the victim was left without any assistance after the assault.

On the guilty plea discount, the court drew on the principle from Rushby (1977) 1 NSWLR 594 that subjective factors, including a plea of guilty, must be given proper weight, but cannot produce a result disproportionate to the gravity of the offence. The court noted that the guideline in Thomson on discounting for pleas of guilty operates by way of encouragement and not prescription, and emphasised that "instinctive synthesis" remains the proper approach to sentencing discretion.

The court also addressed the protective custody submission. While serving a sentence in protective custody is a recognised hardship, the court was satisfied that the sentencing judge had adequately considered this factor. It did not independently justify reducing a sentence that was otherwise appropriate to the objective seriousness of the conduct.

No appellable error was established. The court concluded that the sentence, though stern, was within the proper exercise of the sentencing discretion and was not excessive.

Orders Made

  • Application for leave to appeal allowed
  • Appeal dismissed

Key Takeaways

  • Where the objective criminality of an offence sits at the very top of the relevant range, the weight available to subjective factors such as a guilty plea is correspondingly reduced, even where those factors are genuine and significant.
  • The guideline in R v Thomson & Anor (2000) 49 NSWLR 383 regarding discounting sentences for pleas of guilty operates as encouragement, not prescription, and does not displace the sentencing process of instinctive synthesis.
  • Serving a sentence in protective custody is a recognised hardship that courts may take into account, but it does not operate as a freestanding basis for reducing an otherwise appropriate sentence.
  • A statistical range drawn from Judicial Commission data does not set a ceiling on sentencing where the facts of the individual case warrant a result at the top of that range.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that proportionality to the gravity of the crime and the protection of the public remain paramount considerations in sentencing for offences of gross violence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 27 and 33
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act (NSW)

Cases:
- Astill (No 2) (1992) 64 A Crim R 289
- Kalache [2000] NSWCCA 2
- R v Costin [1989] 11 Cr App R (s) 182
- R v Lo [2001] NSWCCA 271
- R v Stabler [1984] 6 Cr App R (s) 129
- R v Thomson & Anor (2000) 49 NSWLR 383
- Rushby (1977) 1 NSWLR 594
- Veen v The Queen (No 2) (1988) 164 CLR 465