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17
Court of Criminal Appeal 26 July 2006

Heron v Regina

[2006] NSWCCA 215

Assault & violence
SENTENCE APPEAL PAROLE PERIOD WHETHER OFFENCE WAS IN MID PAROLE PERIOD

Citation: Heron v Regina [2006] NSWCCA 215
Court: Court of Criminal Appeal, New South Wales
Date: 26 July 2006
Judge(s): Mason P, Kirby J, Hoeben J (Hoeben J delivered the leading judgment; Mason P and Kirby J agreed)

Background

The applicant, a former Sydney Premiership rugby league player and respected Aboriginal youth worker, was convicted after a jury trial of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, contrary to s 33 of the Crimes Act 1900. The offence arose from an altercation at a hotel in Maclean on 19 June 2003. The victim confronted the applicant over an on-field incident involving the victim's son, the argument escalated into a physical struggle, and the applicant struck the victim with a glass, causing a serious laceration to the facial area and throat requiring a large number of stitches. The sentencing judge found that the victim had initiated the confrontation and that the incident was effectively provoked.

At first instance, Ducker ADCJ imposed a non-parole period of five years and six months with a balance of term of two years, for a total head sentence of seven years and six months. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the offence was at the mid-range of objective seriousness for offences under s 33 of the Crimes Act 1900, so as to attract the standard non-parole period of seven years.
  • Whether the sentencing judge correctly applied the aggravating factors in s 21A(2)(d) (offence committed in company) and s 21A(2)(g) (offence committed in the presence of a child) of the Crimes (Sentencing Procedure) Act 1999.
  • Whether the finding of special circumstances was adequate to justify the ratio between the non-parole period and the balance of term imposed.

Decision

Hoeben J (with whom the other judges agreed) identified two errors in the original sentencing. First, the sentencing judge had incorrectly applied two statutory aggravating factors. The evidence did not support a finding that the offence was committed "in company" within the meaning of s 21A(2)(d), nor that it was committed "in the presence of a child" within s 21A(2)(g). These errors infected the overall sentencing exercise and required resentencing.

Second, the Court turned to whether the offence sat at the mid-range of objective seriousness for s 33 offences, which would engage the standard non-parole period of seven years as a baseline. Hoeben J observed that s 33 covers a wide range of conduct and injuries, many considerably more serious than those suffered here. The Court considered that striking someone with a glass does not equate in seriousness to use of a knife or firearm, and that the spontaneous nature of the incident, combined with the provocation offered by the victim, placed this offence below the mid-range.

Because the offence fell below the mid-range, the standard non-parole period of seven years did not apply directly. However, the Court affirmed that the standard non-parole period remains a relevant guidepost even where an offence falls below the mid-range, consistent with the approach in R v Way. Balancing the objective and subjective circumstances, including the applicant's significant community contributions, his prior good works, and the provoked nature of the offence, the Court concluded that a reduced sentence was warranted.

Orders Made

  • Leave to appeal granted.
  • The sentence imposed by Ducker ADCJ on 4 March 2005 was quashed.
  • The applicant was resentenced to a non-parole period of four years, commencing 9 December 2004 and expiring 8 December 2008, with a balance of term of three years expiring 8 December 2011.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where a s 33 offence falls below the mid-range of objective seriousness, the standard non-parole period of seven years does not automatically apply, but it remains a relevant sentencing guidepost rather than an irrelevant consideration.
  • Aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 must be supported by the evidence; applying factors such as "offence committed in company" or "in the presence of a child" without an adequate evidentiary basis constitutes error.
  • Provocation by the victim, the spontaneous nature of an altercation, and the lesser severity of the weapon used relative to other instruments capable of causing grievous bodily harm are all relevant to placing an offence's objective seriousness on the scale.
  • Section 33 of the Crimes Act 1900 encompasses a wide variety of injuries and circumstances; not all offences resulting in grievous bodily harm are automatically in the mid-range, particularly where the injury, while serious, is less severe than permanent disfigurement, brain damage, or loss of a limb.
  • Substantial subjective mitigating circumstances, including community service, rehabilitation, and the applicant's role as a positive influence in an Aboriginal community, can carry real weight in reducing a sentence below the standard non-parole period baseline.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(d), s 21A(2)(g)
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Way (2004) 60 NSWLR 168
- Channon v The Queen (1978) 33 FLR 433
- R v Engert (1995) 84 A Crim R 67
- R v Moffitt (1990) 20 NSWLR 114
- R v P [2004] NSWCCA 218
- R v Simpson (2001) 53 NSWLR 704
- Veen v R (No 2) (1988) 164 CLR 465