Citation: R v Olsen [2005] NSWCCA 243
Court: NSW Court of Criminal Appeal
Date: 14 July 2005
Judge(s): Studdert J, Kirby J, Howie J
Background
The applicant was convicted by jury of maliciously inflicting grievous bodily harm with intent (s 33, Crimes Act 1900), carrying a maximum penalty of 25 years imprisonment, and pleaded guilty to assault occasioning actual bodily harm (s 59, Crimes Act 1900). Both offences arose from a single incident on 4 July 2002 involving a three-and-a-half-year-old child left in the applicant's care, and the child's mother.
The child was found to have 57 areas of injury, including intra-retinal haemorrhages, flexion-extension neck injuries consistent with severe shaking, bite marks, and dehydration requiring two weeks of hospitalisation. When the mother attempted to take the child for medical treatment, the applicant physically prevented her, assaulting her in the process.
In the District Court, Judge O'Reilly sentenced the applicant to 9 years imprisonment with a non-parole period of 5.5 years for the s 33 offence, and 18 months imprisonment for the s 59 offence, both sentences to date from 5 July 2002. The applicant sought leave to appeal against the s 33 sentence only.
Legal Issues
- Whether the sentencing judge erred by treating the applicant's criminal record as an aggravating feature of the offence itself, rather than as a proper sentencing consideration under s 21A of the Crimes (Sentencing Procedure) Act 1999
- Whether the sentencing judge erred by attributing to the applicant injuries to the child, specifically dehydration, that were said to have resulted from the applicant's conduct after the primary assault (preventing the mother from obtaining help), rather than from the assault itself
Decision
On the first ground, the Court found no error warranting intervention. Even if a technical error had been made in the judge's language, his Honour's actual reasoning made clear he was treating the record as a factor relevant to the weight to be given to deterrence and the applicant's attitude toward the law, not as a feature aggravating the offence itself. The extensive history of assault-related offending and prior imprisonment had not deterred the applicant, and the Court held this was a proper basis on which to treat the record as an aggravating factor in determining sentence, consistent with the principles in Veen v The Queen (No 2).
On the second ground, the applicant argued that the dehydration suffered by the child resulted not from the assault but from his subsequent prevention of the mother seeking help, meaning that injury should not have been counted in assessing culpability for the s 33 offence. The Court rejected this. The sentencing judge was entitled to conclude that the child's dehydration formed part of the grievous bodily harm underpinning the charge, and that the applicant's conduct in blocking medical assistance was itself part of his overall culpability for that offence.
The Court noted that the 9-year sentence sat at the top of the relevant range, but found this was justified given the multiple aggravating features: the extreme vulnerability of the victim, the serious and numerous injuries, the absence of remorse, the applicant's prior record including a prior conviction for grievous bodily harm, and his conduct in assaulting the mother to prevent medical care being obtained. The non-parole period of 5.5 years was described as the minimum appropriate given the need for personal and general deterrence.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A criminal record is a legitimate aggravating factor in sentencing where it demonstrates a continuing attitude of disobedience to the law and indicates that prior penalties have not achieved deterrence, consistent with Veen v The Queen (No 2) and s 21A of the Crimes (Sentencing Procedure) Act 1999.
- No error was established simply because a sentencing judge described a criminal record as an "aggravating feature," provided the record was in substance used for a permissible purpose.
- Where conduct following the primary assault, such as preventing a victim from receiving medical care, directly worsens the victim's condition, a sentencing court may treat the resulting harm as part of the overall grievous bodily harm and as part of the applicant's culpability.
- In dismissing the appeal, the Court of Criminal Appeal observed that the concurrent 18-month sentence for the assault on the mother may have been insufficient on its own merits, but declined to intervene given its conclusion that the s 33 sentence was not manifestly excessive.
- A sentence at the top of the statistical range is not in itself a ground of appeal where the facts disclose multiple, significant aggravating factors.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 33, 59
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 21A
Cases
- R v Blair [2005] NSWCCA 78
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Shankley [2003] NSWCCA 253