Citation: Regina v Joseph Brian Dickinson [2004] NSWCCA 457
Court: NSW Court of Criminal Appeal
Date: 16 December 2004
Judge(s): Wood CJ at CL, Simpson J, Barr J
Background
The respondent pleaded guilty to malicious wounding with intent to cause grievous bodily harm, following negotiations that reduced a charge of wounding with intent to murder. The offence arose after the respondent, learning that his former partner had a new man at her home while his young daughter was present, drove to the house armed with a carving knife and attacked the new partner.
The victim grabbed the knife blade with both hands to defend himself, suffering serious lacerations to his left hand including a seventy percent laceration of the thumb muscle, which required surgery. He was also superficially cut on the chest. Permanent scarring resulted.
In the District Court, Armitage QC DCJ sentenced the respondent to two years imprisonment with a twelve-month non-parole period, then suspended the entire sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999, placing the respondent on a supervised good behaviour bond. The Crown appealed that sentence as inadequate.
Legal Issues
- Whether the suspended sentence imposed by the District Court was manifestly inadequate for an offence of malicious wounding with intent to cause grievous bodily harm
- Whether, if resentencing was warranted, periodic detention was an appropriate sentencing disposition given the respondent's medical history and changed circumstances
Decision
The Court of Criminal Appeal found the suspended sentence was inadequate. The offence involved a deliberate, premeditated attack with a weapon, causing serious and permanent injury. Although the sentencing judge had carefully considered the respondent's background, including his difficult childhood, sexual abuse by a cousin, post-traumatic stress disorder, diabetes, and his psychologist's assessment that he was not prone to anti-social behaviour, the Court concluded these matters did not justify the level of leniency reflected in full suspension.
The Court accepted the mitigating circumstances but weighed them against the objective seriousness of the offence. The respondent had armed himself, driven to the victim's location, and carried out a violent attack. The resulting injuries were significant, and the sentencing outcome needed to reflect both the gravity of the conduct and the need for general deterrence.
On resentencing, the Court considered periodic detention rather than full-time custody. At the time of the original sentence, the Probation and Parole Service had assessed the respondent as unsuitable for periodic detention due to a medical condition. By the time of the appeal, however, evidence placed before the Court demonstrated that condition had resolved sufficiently to no longer present an obstacle. The Court was satisfied the respondent was suitable and that periodic detention was appropriate in all the circumstances.
Orders Made
- The appeal was allowed and the original sentence was quashed
- The respondent was resentenced to a fixed term of imprisonment of two years and two months, commencing 1 January 2005 and expiring 27 February 2007
- The sentence was ordered to be served by way of periodic detention, with the respondent directed to report to Tomago Periodic Detention Centre at 8:30am on Saturday 1 January 2005, and thereafter at 7pm each Friday
Key Takeaways
- A fully suspended sentence for a premeditated knife attack causing serious and permanent injury was held to be manifestly inadequate, even where the offender had significant personal mitigating circumstances including mental health diagnoses and a difficult background.
- Mitigating factors such as post-traumatic stress disorder, a history of childhood sexual abuse, and a psychologist's assessment that the offence was out of character did not, in this case, reduce the objective seriousness of the offence to a level justifying full suspension.
- Changed circumstances between the original sentencing and an appeal can be taken into account on resentencing: the Court relied on fresh evidence that a medical condition previously disqualifying the respondent from periodic detention had resolved.
- Under section 66 of the Crimes (Sentencing Procedure) Act 1999, a court must be satisfied of several matters before ordering periodic detention, including the offender's suitability, availability of accommodation at a nominated centre, transport arrangements, and the offender's signed undertaking to comply.
- A fixed term without a parole period was considered appropriate where the conditions of supervision attached to periodic detention were themselves sufficient to meet the purposes that a parole period would otherwise serve.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences) and s 66 (periodic detention requirements)
Cases:
No cases were cited in the portion of the judgment provided.