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27
Court of Criminal Appeal 17 June 2005

Wilson v R

[2005] NSWCCA 219

Assault & violence
APPEAL AGAINST SEVERITY OF SENTENCE MALICIOUS WOUNDING ASSAULT OCCASIONING ACTUAL BODILY HARM PLEAS OF GUILTY VICTIM IMPACT STATEMENTS SUBJECTIVE CIRCUMSTANCES

Citation: Wilson v R [2005] NSWCCA 219
Court: NSW Court of Criminal Appeal
Date: 17 June 2005
Judges: Simpson J, Barr J, Latham J

Background

The applicant, a 20-year-old with minimal prior criminal history, pleaded guilty in the District Court to two counts of malicious wounding and one count of assault occasioning actual bodily harm. All three offences occurred on the same evening in Newcastle when the applicant armed himself with a 30 cm fishing knife and, alongside two younger associates, tracked down a group of men following an unrelated street altercation. He stabbed all three victims, causing serious abdominal injuries to one (a professional surfer whose career was significantly affected), stab wounds to the limbs of a second, and lacerations to the scalp of the third.

District Court Judge Woods sentenced the applicant to a total effective term of six years' imprisonment, with a non-parole period of three years and nine months. The most serious sentence, five years for the wounding of the first victim, commenced partially cumulatively upon the earlier sentences.

The applicant sought leave to appeal the severity of each sentence, arguing they were manifestly excessive in the circumstances.

  • Whether the sentence imposed for each count was manifestly excessive, having regard to the applicant's subjective circumstances (youth, plea of guilty, remorse, mental health, and minimal criminal history)
  • Whether the sentencing judge erred by adopting a starting point just below the statutory maximum for the most serious count without expressly finding the offence was a "worst case"
  • Whether the accumulation of the sentence for Count 2 upon the earlier sentences was appropriate
  • Whether special circumstances existed warranting a variation in the ratio between the non-parole period and the balance of term

Decision

Simpson J (with Latham J agreeing) found that the sentences for Counts 3 and 4 were not manifestly excessive and dismissed those grounds of appeal. However, her Honour upheld the appeal in relation to Count 2, the most serious offence involving the stabbing of Mr Gresham.

The error identified in Count 2 was the sentencing judge's adoption of a five-year starting point, just below the seven-year statutory maximum, without making an express finding that the offence fell into the worst category of cases. The Court of Criminal Appeal confirmed, consistent with established principle, that a sentence approaching the maximum is reserved for the worst class of offence, and that imposing such a sentence without that finding constitutes error. On that basis, the sentence for Count 2 was quashed.

In substituting the sentence, the Court reduced the term for Count 2 to four years (a non-parole period of two years with a balance of two years), but simultaneously increased the degree of accumulation upon the earlier sentences. The result was a total effective sentence comparable in overall length to that originally imposed. The Court reasoned that a lesser sentence on that individual count was properly offset by greater accumulation, so that the total criminality of the sustained knife attack was still reflected in the aggregate term.

Barr J dissented on this point, concluding that the total effective sentence was warranted by the seriousness of the overall offending and that no lesser aggregate was appropriate. His Honour would have dismissed all grounds of appeal.

Orders Made

  • Leave to appeal against sentences granted
  • Appeals against sentences for Counts 3 and 4 dismissed
  • Appeal against sentence for Count 2 allowed; sentence quashed
  • In lieu of the quashed sentence: imprisonment for two years (non-parole period), commencing 5 August 2005, with a balance of term of two years, expiring 4 August 2009; eligible for parole on 4 August 2007

Key Takeaways

  • A sentencing court cannot adopt a starting point near the statutory maximum without expressly finding that the offence falls into the worst category of cases; failing to make that finding constitutes a specific, identifiable error on appeal.
  • In allowing the appeal on Count 2, the Court of Criminal Appeal did not reduce the overall effective sentence by a corresponding amount, instead increasing accumulation to reflect the totality of the applicant's criminality across all three offences.
  • Youth, absence of prior criminal history, pleas of guilty, remorse, and psychiatric evidence are all relevant subjective factors in sentencing, but they do not automatically render a severe sentence manifestly excessive where the objective circumstances of the offending are serious.
  • Barr J's separate reasons illustrate that a sustained, armed attack on multiple victims can independently justify a total effective sentence in the range imposed, even without the particular error identified in relation to the individual count.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, as amended by the Standard Minimum Sentencing Act 2002, the sentencing framework applicable at the date of the offences governs the exercise of the sentencing discretion on each count.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33, s 35(1)(a), s 59(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 44
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)

Cases:
- R v Slack [2004] NSWCCA 128