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Court of Criminal Appeal 25 February 2005

Regina v BUDDLE

[2005] NSWCCA 82

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE PLEA OF GUILTY PROVOCATION WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Regina v Buddle [2005] NSWCCA 82
Court: NSW Court of Criminal Appeal
Date: 25 February 2005
Judge(s): Spigelman CJ, Wood CJ at CL, Barr J

Background

The applicant pleaded guilty in the District Court to maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. A related charge of assault occasioning actual bodily harm was taken into account on a Form 1 (a procedure by which additional offences are formally noted at sentencing without recording separate convictions).

The offences arose after two men, in a drunken state, damaged the applicant's security door, struck his son, and then assaulted the applicant. The applicant and his son armed themselves with baseball bats or timber, pursued the two men by car, and caught up with them. The applicant struck one victim with a full-force blow to the head. He and his son continued to strike and kick that victim while he lay unconscious and defenceless, and also attacked the second man when he tried to help.

The primary victim suffered a fractured skull, fractured rib, intracranial haemorrhage requiring surgery, and a lacerated spleen. He was left with permanent disabilities. The District Court imposed a head sentence of 6 years and 6 months with a non-parole period of 4 years and 3 months, including a 10 percent discount for the late guilty plea.

  • Whether the head sentence of 6 years and 6 months was manifestly excessive
  • Whether the sentencing judge overstated the objective seriousness of the offending
  • Whether the sentencing judge gave sufficient weight to the applicant's subjective circumstances, including provocation, personal history, psychological state, and community contributions

Decision

The Court of Criminal Appeal found no error in the sentencing judge's assessment of objective criminality. The applicant had argued that the judge overstated the gravity of the attack by describing it as difficult to envisage "a more cowardly" assault. The Court of Criminal Appeal rejected this, reading that remark in context as a reference to the continued assault on a defenceless and unconscious man, and citing the principle from Veen v The Queen (No 2) that it is not useful to construct hypothetical worse scenarios. While provocation provided context and reduced moral culpability, it did not excuse the conduct. The applicant's response was found to be a gross over-reaction warranting both personal and general deterrence.

On subjective circumstances, the Court accepted that the sentencing judge had not overlooked any relevant factor, but concluded that the combination of those factors was so compelling that the sentence fell outside the permissible range of the sentencing discretion. The applicant was 44 years old, had been the sole carer of his sons for 15 years, had an unblemished criminal record for 20 years, had overcome a heroin addiction, and had made extensive community contributions including coaching youth rugby league, surf lifesaving, and involvement with ATSIC. At the time of the offending he was in a fragile psychological state, affected by multiple serious personal stressors including a recent death in custody of a young person in his care and a terminal diagnosis in a family member.

The Court also found special circumstances justifying a departure from the standard statutory ratio between the non-parole period and the head sentence, given the applicant's need for extended post-release supervision due to his psychological condition and reintegration needs.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence quashed and replaced with imprisonment for 5 years, commencing 21 November 2003, with a non-parole period of 3 years also commencing 21 November 2003 and expiring 20 November 2006

Key Takeaways

  • Provocation can be a significant mitigating factor in assessing objective criminality, but does not excuse a disproportionate retaliatory attack or displace the relevance of personal and general deterrence.
  • A sentencing judge's characterisation of an offence's gravity must be read in its full context. The Court of Criminal Appeal declined to treat an emphatic description of a particular attack as a formal finding that no worse offence could be imagined.
  • Under Veen v The Queen (No 2), constructing hypothetical scenarios more serious than the facts before the court is not a productive method for testing whether a sentencing judge has overestimated objective seriousness.
  • Where a combination of subjective factors is sufficiently compelling, including personal history, psychological vulnerability, good character, community contribution, and the contextual nature of the offending, a sentence may be found manifestly excessive even where no individual error of law is identified.
  • Special circumstances justifying a reduced non-parole period relative to the head sentence can be established where an offender requires extended post-release supervision for psychological reasons and to assist community reintegration.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518
- R v Watt NSWCCA, 2 April 1997
- R v Wiki NSWCCA, 13 September 1993