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7
Court of Criminal Appeal 28 November 2003

R v Shepherd

[2003] NSWCCA 351

Assault & violence
CRIMINAL PRACTICE & PROCEDURE MALICIOUS WOUNDING WHETHER A WOUNDING SUFFICIENCY OF EVIDENCE WHETHER SENTENCE EXCESSIVE

Citation: Shepherd v R [2003] NSWCCA 351
Court: NSW Court of Criminal Appeal
Date: 28 November 2003
Judge(s): Meagher JA, Kirby J, Shaw J

Background

The appellant had pleaded guilty to affray and malicious wounding following a violent brawl at a café in Wilcannia on 7 April 2002. He and two companions, after a dispute over an unpaid order, returned to the premises and attacked the shopkeeper. A co-offender stabbed the shopkeeper with a concealed knife; another tackled him to the floor. The appellant ran forward to join the assault, though precisely what blows he landed was unclear on the evidence.

The sentencing judge at the District Court imposed 3 years and 9 months imprisonment (with a 2-year non-parole period) on the malicious wounding count. The shopkeeper's injuries included stab and laceration wounds requiring stitches, as well as lacerations to his lips consistent with being punched.

The appeal raised questions about whether the evidence before the sentencing court was sufficient to sustain the malicious wounding plea, and whether the sentence imposed was manifestly excessive having regard to the appellant's actual role in the offending.

  • Whether the evidence before the sentencing judge was sufficient to establish a "wounding" for the purposes of the malicious wounding charge, given uncertainty about the appellant's precise role in the assault
  • Whether the sentencing judge erred by treating the appellant as equally culpable as his co-offenders when one co-offender was sentenced for the more serious offence of wounding with intent to cause grievous bodily harm
  • Whether insufficient weight was given to the appellant's subjective case
  • Whether the sentence was manifestly excessive

Decision

Before proceeding to the sentence appeal, the Court of Criminal Appeal raised a threshold question about the evidential basis for the malicious wounding plea. The issue turned on what injuries could properly be attributed to the appellant. Given the uncertainty about his role, the Court considered whether the stabbing injuries caused by the co-offender could be sheeted home to the appellant via complicity, which in turn depended on whether he knew his co-offender had a knife.

The Court found that the evidence did not establish that the appellant knew of the knife before the stabbing occurred. His police interview was ambiguous at best on that point. Accordingly, the stabbing wounds could not be attributed to him for sentencing purposes. However, the lip lacerations, consistent with a punch, could be. The Court accepted that a split lip caused by a punch constitutes a "wounding" within the meaning of the Crimes Act 1900, as it involves a breaking of the skin sufficient to satisfy the legal definition.

On sentence, Kirby J held that treating the appellant as equally culpable as the co-offenders was an error, given that the offending actually attributable to him was limited to the punch causing the lip injuries. The Court characterised his criminality as sitting at the lower end of the scale. His subjective case was described as strong, noting his improvement in literacy and participation in rehabilitation programs while in custody, together with his limited prior criminal history.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The sentence on Count 2 imposed by Finnane DCJ on 17 December 2002 was quashed
  • In lieu, the appellant was sentenced to 2 years imprisonment commencing 8 October 2002 and expiring 7 October 2004, with a non-parole period of 1 year expiring 7 October 2003, resulting in immediate release to parole

Key Takeaways

  • A split lip caused by a punch can constitute a "wounding" within the meaning of the Crimes Act 1900, provided it involves a sufficient breaking of the skin to satisfy the legal definition.
  • Where an offender's liability for a co-offender's more serious acts (such as stabbing) depends on complicity, the prosecution must establish that the offender knew of, and contemplated the use of, the relevant weapon; ambiguous evidence in a police interview was insufficient to establish that knowledge here.
  • In sentencing a participant in a group assault, the court must confine its assessment of culpability to the harm actually attributable to that offender and must not treat co-offenders as equivalently culpable where one faces a substantially more serious charge.
  • Under the Crimes (Sentencing Procedure) Act 1999, a finding of special circumstances may justify a non-parole period exceeding the default statutory proportion, particularly where an offender is likely to benefit from supervised parole and where underlying issues such as alcohol dependency are present.
  • Positive rehabilitation undertaken in custody, limited prior criminal history, and the relatively low-level nature of the offending when properly assessed all bore on the resentencing outcome and resulted in a substantially reduced term.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 35(a), 93C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Savvas v The Queen (1995) 183 CLR 1
- R v Stokes and Difford (1990) 51 A Crim R 25
- R v Fernando (1992) 76 A Crim R 58
- R v Newman (1948) ALR 109
- R v Smith (1837) 8 Carrington & Payne 173
- R v Bullock (1868) LR 1 CCR 115