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6
Court of Criminal Appeal 17 May 2004

R v WESTERMAN

[2004] NSWCCA 161

Assault & violence

Citation: R v Westerman [2004] NSWCCA 161
Court: NSW Court of Criminal Appeal
Date: 17 May 2004
Judges: Spigelman CJ, Hulme J, Adams J

Background

The appellant pleaded guilty in the District Court to maliciously inflicting grievous bodily harm on a five-year-old boy, the son of the woman with whom he was living. The child sustained extensive bruising across his face, ears, neck, arms, shoulders, back, and buttocks, along with significant soft tissue swelling and abrasions. The injuries appeared to have been inflicted overnight on 14 to 15 March 2003.

A further offence of assault occasioning actual bodily harm from the previous day was also taken into account on sentence. That earlier offence involved the appellant kicking the child once in the lower back while walking along the street, causing bruising.

District Court Judge Gibson sentenced the appellant to seven years' imprisonment, comprising a non-parole period of five years, commencing 30 January 2003. His Honour declined to apply the standard 25 per cent utilitarian discount for the guilty plea, reasoning that the seriousness of the offence required a sentence commensurate with the crime. The appellant appealed against that sentence.

  • Whether the offence fell within the "worst case" category for the offence of maliciously inflicting grievous bodily harm under s 35(b) of the Crimes Act, such that no discount for the guilty plea was required
  • Whether the sentencing judge erred in refusing to apply the utilitarian discount for a plea of guilty
  • What the appropriate sentence was upon resentencing

Decision

The Court of Criminal Appeal accepted that a case can qualify as a "worst case" without the injuries themselves being the worst type of grievous bodily harm. The seriousness and heinousness of an offender's overall conduct can, in principle, place an offence in that category even where the physical injuries are not the most severe.

However, the Court found that this offence did not reach the worst case threshold. The injuries, although extensive and serious, did not include broken bones, internal injuries, brain injury, or permanent physical harm. The Court noted that the injuries were "so far removed from worst case injuries" that this strongly weighed against treating the offence as being in that category. Accordingly, the sentencing judge erred in withholding the guilty plea discount.

The Court resentenced the appellant, finding that the appropriate sentence before the plea discount was five years' imprisonment. After applying a discount towards the top of the range recognised in R v Thomson and Houlton, the head sentence was reduced to four years with a non-parole period of three years. Hulme J noted a degree of uncertainty about whether three years in custody was sufficient, but was not sufficiently confident to impose more.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Judge Gibson quashed
  • In lieu: sentence of four years' imprisonment, including a non-parole period of three years, both commencing 30 January 2003

Key Takeaways

  • A "worst case" finding for the purpose of withholding a guilty plea discount does not require the injuries to be the most severe type possible; the overall criminality of the offender's conduct is also relevant.
  • Nonetheless, the Court of Criminal Appeal confirmed that where injuries fall well short of the most serious end of the spectrum for the relevant offence, that weighs heavily against a worst case categorisation.
  • Under the principles in R v Thomson and Houlton, a utilitarian discount for a guilty plea should generally be applied except in genuinely worst case offences; declining to apply that discount in an inappropriate case constitutes sentencing error.
  • No discount for the guilty plea had been applied at first instance, but the Court of Criminal Appeal applied a reduction toward the upper end of the Thomson and Houlton range, reducing a notional five-year head sentence to four years.
  • The existence of a prior assault on the same victim, taken into account as an additional offence, did not of itself elevate the principal offence into the worst case category.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(b) (maliciously inflicting grievous bodily harm; maximum penalty seven years' imprisonment)

Cases
- R v Thomson and Houlton [2000] 49 NSWLR 383 (principles governing utilitarian discount for guilty pleas)
- R v O'Kane (unreported, CCA, 9 March 1995)
- R v Clarke (unreported, CCA, 27 March 1995)
- R v Grimmett (unreported, CCA, 1 April 1996)
- R v Rainbow (unreported, CCA, 20 December 1996)
- R v Remilton (unreported, CCA, 6 December 2001)