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Court of Criminal Appeal 30 July 2002

R v McNamara

[2002] NSWCCA 318

Assault & violence
CRIMINAL LAW NO QUESTION OF PRINCIPLE

Citation: McNamara v R [2002] NSWCCA 318
Court: NSW Court of Criminal Appeal
Date: 30 July 2002
Judge(s): Sperling J; Greg James J

Background

The applicant pleaded guilty at the earliest opportunity to maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. The offence occurred at a hotel in Moree on 3 June 2001, when the applicant, who was heavily intoxicated, attacked another patron without any provocation. During the assault, the applicant bit a portion of the victim's nose, exposing the bone. The victim was hospitalised for four days, required a skin graft, and faced further surgery at the time of sentencing.

The applicant was sentenced in the District Court by Kinchington DCJ on 20 November 2001 to four years' imprisonment with a non-parole period of one year and nine months, with special circumstances found. The applicant then sought leave to appeal against that sentence in the Court of Criminal Appeal.

  • Whether the sentencing judge gave sufficient weight to the applicant's demonstrated rehabilitation, his early guilty plea, and the impact of imprisonment on his family
  • Whether the sentence of four years was manifestly excessive in light of the subjective circumstances

Decision

The Court found that the objective circumstances of the offence were serious but not at the upper end of the range for grievous bodily harm offences. The injury, while significant, was below the most severe category of harm seen in such cases.

The Court accepted that strong subjective features justified a reduction in sentence. The applicant had ceased drinking entirely from the date of the offence, had undertaken rehabilitation treatment, had joined Alcoholics Anonymous, had reconciled with his wife, had no relevant prior convictions, and had surrendered himself to police as evidence of remorse and contrition. These factors substantially reduced the weight to be given to personal deterrence.

On the question of family hardship, Sperling J observed that this consideration was of no relevance in the circumstances. Established authority from the Court of Criminal Appeal holds that hardship to family members can only be taken into account in highly exceptional circumstances, and the facts here did not meet that threshold.

The Court applied an approximately 20 per cent discount to a starting sentence of three years and six months to reflect the early guilty plea, arriving at a head sentence of two years and nine months. Special circumstances were found, and a non-parole period of one year and six months was set. Greg James J agreed with both the orders and the reasons.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Original sentence set aside
  • Applicant re-sentenced to imprisonment for two years and nine months, commencing 20 November 2001, with a non-parole period of one year and six months expiring 19 May 2003
  • Order made directing the applicant's release on parole at the end of the non-parole period pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999

Key Takeaways

  • A sentence may be set aside as manifestly excessive where strong subjective features, including genuine rehabilitation and an early guilty plea, are not adequately reflected in the outcome, even where the offence involves serious objective harm.
  • Demonstrated rehabilitation prior to sentencing carries significant weight in reducing the need for personal deterrence as a sentencing purpose.
  • Under the Court of Criminal Appeal's established approach, family hardship is a relevant sentencing consideration only in highly exceptional circumstances; ordinary hardship to dependants does not meet that threshold.
  • An early guilty plea attracts a discount of approximately 20 per cent from the head sentence, consistent with the Court's approach in this decision.
  • Voluntary surrender to police, where the offender would have been apprehended regardless, can still constitute positive evidence of remorse and contrition for sentencing purposes.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50

Cases
- No specific cases were cited by name in the judgment text.