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Court of Criminal Appeal 25 August 2006

Mackey v Regina

[2006] NSWCCA 254

Assault & violence
CRIMINAL LAW SENTENCE STANDARD NON PAROLE PERIOD DELAY EXTRA CURIAL PUNISHMENT SENTENCE NOT MANIFESTLY EXCESSIVE.

Citation: Mackey v Regina [2006] NSWCCA 254
Court: NSW Court of Criminal Appeal
Date: 25 August 2006
Judge(s): Beazley JA, Hulme J, Hislop J

Background

The appellant was convicted by jury of maliciously wounding a stranger at a Pyrmont hotel in the early hours of 11 July 2004, contrary to section 33 of the Crimes Act 1900. The incident began when the victim accidentally bumped the appellant, causing him to spill beer. After an exchange of words, the appellant struck the victim in the face with a schooner glass he was still holding, causing lacerations that required approximately 40 stitches and left the victim with substantial, permanent scarring.

The District Court sentenced the appellant to a total term of 10 years and 8 months imprisonment, with a non-parole period of 8 years. That non-parole period exceeded the standard non-parole period of 7 years applicable to the offence under the Crimes (Sentencing Procedure) Act 1999.

The appellant sought leave to appeal against sentence, raising four grounds: error in assessing objective seriousness against the standard non-parole period framework, failure to account for delay in the sentencing proceedings, insufficient weight given to extra-curial punishment, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in classifying the offence as falling slightly above the mid-range of objective seriousness for the purposes of the standard non-parole period framework
  • Whether the sentencing judge failed to adequately account for delay in bringing the sentencing proceedings to a conclusion
  • Whether insufficient weight was given to extra-curial punishment, namely an assault on the appellant immediately after the offence
  • Whether the sentence of 8 years non-parole period and 10 years 8 months total was manifestly excessive

Decision

Ground 1: Standard non-parole period and objective seriousness. The appellant argued that the sentencing judge had improperly merged subjective factors, such as the spontaneous and unplanned nature of the attack, into the assessment of objective seriousness. The Court of Criminal Appeal rejected this, finding that the unprovoked, spontaneous and unplanned character of the offence properly forms part of the objective seriousness assessment, as confirmed by the Court's earlier analysis in R v Way. The finding that the offence fell slightly above the mid-range of seriousness was within the sentencing judge's discretion and was not open to interference.

Ground 2: Delay. The Court acknowledged that some delay had occurred between conviction and sentence, partly at the appellant's own request to accommodate psychiatric assessment and other procedural steps. While the judgment does not set out the Court's full analysis of this ground in the extracted text, the ground did not succeed.

Ground 3: Extra-curial punishment. The appellant pointed to an assault he suffered immediately after the offence as a form of punishment already exacted outside the formal justice system. The Court considered this issue but found no sufficient error in the sentencing judge's treatment of it to warrant intervention.

Ground 4: Manifest excess. The Court found the sentence was not manifestly excessive. The sentencing judge had regard to the serious and permanent injuries inflicted, the appellant's significant prior criminal history (including three manslaughter convictions arising from a deliberately lit house fire), the fact the offence was committed while the appellant was on parole, and a range of subjective matters including psychiatric reports, character references, and the spontaneous nature of the offending. No less severe sentence was considered warranted in law.

Orders Made

  • Application for leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under the standard non-parole period framework in the Crimes (Sentencing Procedure) Act 1999, factors such as whether an offence was unprovoked, spontaneous, and unplanned are properly considered as part of objective seriousness, not only as subjective mitigating circumstances.
  • The Court of Criminal Appeal confirmed that the approach in R v Way requires a sentencing judge to assess whether the offence falls within the mid-range of objective seriousness before considering whether subjective circumstances justify departure from the standard non-parole period.
  • A non-parole period of 8 years for malicious wounding with intent to cause grievous bodily harm, where the victim suffered permanent facial scarring, the offence was committed on parole, and the offender had prior manslaughter convictions, was held not to be manifestly excessive.
  • Delay in sentencing proceedings and extra-curial punishment were both raised and considered, but neither provided a sufficient basis to disturb the sentence where the overall sentencing process disclosed no legal error.
  • In dismissing the appeal, the Court left undisturbed the sentencing judge's finding that no special circumstances existed to justify a longer balance of sentence beyond the standard statutory ratio.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33 (malicious wounding with intent to cause grievous bodily harm, maximum 25 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(2) and Part 4, Division 1A (standard non-parole period provisions)

Cases:
- R v Way (2004) 60 NSWLR 168
- R v Daetz (2003) 139 A Crim R 398
- R v Todd (1982) 2 NSWLR 517