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Court of Criminal Appeal 5 March 2002

Regina v Guivarra

[2002] NSWCCA 69

Assault & violence
CRIMINAL LAW AND PROCEDURE MALICIOUS WOUNDING SENTENCE IMPRISONMENT SUSPENDED NO MISCARRIAGE OF JUDGE'S DISCRETION

Citation: Regina v Guivarra [2002] NSWCCA 69
Court: New South Wales Court of Criminal Appeal
Date: 5 March 2002
Judges: Spigelman CJ, Grove J, Smart AJ

Background

The respondent pleaded guilty to malicious wounding following a violent confrontation in Maroubra in September 2000. The incident arose from ongoing friction after a ten-year de facto relationship ended, and the respondent's former partner commenced a new relationship. On the day in question, an argument between the respondent and the victim escalated into a physical altercation in which the victim struck the respondent with a golf club.

The respondent left the scene but returned armed with a long-bladed knife that he said had been kept in his car. The victim re-emerged carrying an extendable baton. In the renewed fight, the respondent stabbed the victim twice in the abdomen. The victim required emergency surgery and was discharged from hospital four days later.

At the District Court, Finnane DCJ sentenced the respondent to two years imprisonment but suspended that sentence on condition that the respondent enter into a good behaviour recognizance for the full term. The Crown appealed, arguing the sentence was manifestly inadequate.

  • Whether the sentencing judge erred by failing to apply the two-step process for suspended sentences described by Kirby J in The Queen v Dinsdale (2000) 202 CLR 321, namely: first determining whether full-time imprisonment was appropriate, and second whether suspension was warranted.
  • Whether the sentence of two years imprisonment, with execution suspended, was manifestly inadequate for the offence of malicious wounding in all the circumstances.

Decision

The Court of Criminal Appeal, by majority, dismissed the Crown appeal. Grove J, with whom Spigelman CJ agreed, found that the Crown had not demonstrated that Finnane DCJ was wrong in his conclusions. The sentencing judge had before him two probation and parole reports, evidence of the respondent's progress through anger management counselling, and material regarding rehabilitation. His Honour found that the respondent had on the whole behaved in a responsible manner during the lengthy remand period, and that finding was not shown to be in error.

On the two-step process from Dinsdale, the Court reiterated the principle established in R v Foster [2001] NSWCCA 215 and confirmed in R v Zamagias [2002] NSWCCA 17: a failure to expressly advert to the two-stage process does not automatically require the sentence to be set aside and the matter re-sentenced. The critical question remained whether the sentence and order were, in all the circumstances, manifestly inadequate.

The Court weighed a range of subjective factors in the respondent's favour. These included a largely clear record since 1993, a history of regular employment, significant personal hardship including serious illness in childhood, the care he provided to his terminally ill mother, and the fact that the victim and the former partner had relocated to Queensland, removing the risk of further conflict. The Court also noted that while the stab wounds were potentially life-threatening, the victim recovered and was discharged after four days with no indication of need for further treatment.

Comparisons with other cases, including Zamagias and R v Kama, were considered but distinguished on the basis of materially different offences and circumstances, including differences in the applicable statutory maximum penalties and the severity of injuries sustained. Smart AJ, while acknowledging he initially considered the sentence manifestly inadequate and described it as "certainly very lenient," ultimately declined to dissent from the majority.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • A sentencing court's failure to explicitly follow the two-step process for suspended sentences outlined in Dinsdale does not automatically warrant appellate intervention; the question remains whether the outcome was manifestly inadequate on all the circumstances.
  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that significant subjective factors, including rehabilitation progress during an extended remand, can properly support a suspended sentence even for a serious wounding offence.
  • Where the victim and potential source of ongoing friction had relocated, removing the likelihood of future conflict, that fact was a legitimate consideration in the sentencing exercise.
  • Comparative sentencing cases must be applied with care: differences in the specific offence charged, the applicable maximum penalty, and the severity of injuries can render apparent similarities misleading.
  • The Court's threshold for appellate intervention on Crown appeals remains high; a sentence described as lenient will not be disturbed unless it is demonstrated to be manifestly inadequate.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), including ss 33 and 35

Cases:
- The Queen v Dinsdale (2000) 202 CLR 321
- R v Foster [2001] NSWCCA 215
- R v Zamagias [2002] NSWCCA 17
- R v Kama [2000] NSWCCA 23
- Regina v LRS [2001] NSWCCA 338