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Court of Criminal Appeal 21 April 2005

Regina v Kirkland

[2005] NSWCCA 130

Assault & violenceTheft & property

Citation: Regina v Kirkland [2005] NSWCCA 130
Court: Court of Criminal Appeal, New South Wales
Date: 21 April 2005
Judge(s): Hunt AJA (with whom Grove J and Hall J agreed)

Background

The appellant pleaded guilty in the District Court to two offences: maliciously inflicting grievous bodily harm with intent, and aggravated break and enter with stealing. Both offences were committed against the same victim and arose from a dispute about a gold bracelet. The plea to the grievous bodily harm charge was accepted in discharge of a more serious count of causing grievous bodily harm with intent to murder.

The underlying facts were extremely serious. The appellant and his co-offender lured the victim into an alleyway and attacked him with a plasterer's hammer, a tool with a hammer head on one side and an axe blade on the other. The co-offender drove the axe blade into the victim's skull, penetrating his brain. The appellant then slammed the victim's head into the ground, stomped and jumped on his head twice, and kicked him, leaving the embedded tool in place. The victim underwent emergency neurosurgery and sustained permanent, severe traumatic brain injury requiring full-time care.

The sentencing judge imposed twelve years' imprisonment with a non-parole period of eight years for the grievous bodily harm offence (the maximum for that offence being twenty-five years), with a concurrent two-year sentence for the break and enter. The appellant sought leave to appeal, contending the sentence was manifestly excessive and that the sentencing judge had erred in applying the "worst category" analysis and in certain factual findings.

  • Whether the sentencing judge erred by invoking the "worst category of cases" analysis when the sentence imposed was not the maximum sentence
  • Whether a sentence at "the very upper end" of sentences imposed for the relevant offence type is the same as, or requires the same justification as, the maximum sentence
  • Whether a sentence of twelve years (approximately 80% of the maximum of twenty-five years) was manifestly excessive
  • Whether the judge made an erroneous factual finding about the appellant's knowledge that the co-offender had armed himself with the plasterer's hammer before leaving to find the victim
  • Whether the standard non-parole period in the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 was relevant as a guide, given the offence pre-dated 1 February 2003

Decision

The Court accepted that the sentencing judge had made one factual error: finding that the appellant knew the co-offender had armed himself with the plasterer's hammer when they left the unit, when the evidence only supported a finding that the appellant knew of the hammer's presence on the table inside the unit. Counsel for the appellant conceded this error would have had minimal effect on the sentence, and the Court agreed.

On the "worst category" argument, the Court of Criminal Appeal clarified an important distinction. A "worst category of cases" analysis is only engaged when a court is considering the maximum sentence. A finding that an offence sits at "the very upper end" of the range of sentences imposed for offences of that type is a separate and distinct exercise. It does not require a threshold determination that the case is among the worst category, and the two concepts should not be conflated.

The Court further noted that a sentence of twelve years, representing approximately 80% of the maximum of twenty-five years, is neither the maximum sentence nor a sentence calling for a worst-category analysis. Given the extreme violence, the prior planning and premeditation, the severe and permanent harm to the victim, and the applicant's active participation even after the axe blade was embedded in the victim's skull, the Court regarded the sentence as entirely appropriate.

The argument that the standard non-parole period in the Table to Division 1A should have acted as a guide was dismissed on several grounds. The offence was committed before 1 February 2003, the earliest date for offences to which Division 1A applies. Even where Division 1A does apply, the Table's standard non-parole periods are designed as starting points for mid-range offences and are not equivalent to the non-parole periods imposed under prior sentencing law. The Court also noted that it is erroneous to apply or even consider the Table as guidance for offences to which Division 1A does not apply.

Orders Made

  • Leave to appeal against sentence granted.
  • The appeal dismissed.

Key Takeaways

  • The "worst category of cases" principle is only engaged when a court is actually considering whether to impose the maximum sentence. It is not a prerequisite for imposing a sentence at the upper end of the range for the relevant offence type.
  • A sentence representing approximately 80% of the maximum is neither the maximum sentence nor, without more, a sentence requiring a worst-category finding to justify it.
  • Under the Crimes (Sentencing Procedure) Act 1999, Division 1A and its standard non-parole period Table apply only to offences committed on or after 1 February 2003. Sentencing judges must not apply or refer to that Table for offences predating that threshold.
  • Even where a standard non-parole period Table is applicable in principle, its figures represent starting points for mid-range offences, making them generally different from non-parole periods imposed under prior sentencing law.
  • In dismissing the appeal, the Court confirmed that a single factual error by a sentencing judge will not automatically warrant intervention if the error had minimal effect on the sentence ultimately imposed and the sentence remains appropriate to the overall circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including Division 1A, Part 4 and s 54A(2)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2000 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Ibbs v The Queen (1987) 163 CLR 447
- Knight v The Queen (1992) 175 CLR 495
- Pearce v The Queen (1998) 194 CLR 610
- The Queen v Olbrich (1999) 199 CLR 270
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Regina v O'Neill [1979] 2 NSWLR 582
- Regina v Walters (1992) 62 A Crim R 16
- Regina v Szeto [1999] NSWCCA 296
- Regina v Story [1998] 1 VR 359
- Regina v Way (2004) 60 NSWLR 168
- Regina v Ohar (2004) 59 NSWLR 596
- Regina v Wilkinson [2004] NSWCCA 83