Citation: R v Jione [2007] NSWCCA 170
Court: NSW Court of Criminal Appeal
Date: 21 June 2007
Judge(s): Hodgson JA, Grove J, Simpson J
Background
The respondent pleaded guilty in the District Court to maliciously inflicting grievous bodily harm with intent, contrary to section 33 of the Crimes Act 1900. The offence arose from a prolonged and savage assault on a man outside a hotel in Ingleburn in July 2005. The respondent punched and kicked the victim repeatedly, including multiple blows to the head, and continued attacking him in the car park after an initial confrontation inside the hotel.
The victim sustained catastrophic brain injuries. He required emergency surgery, spent an extensive period on life support, and was ultimately left in a permanent vegetative state, unable to communicate, requiring full-time nursing care, dependent on a feeding tube, and with a significantly reduced life expectancy. He is a father of three.
The respondent, a man in his mid-twenties at the time, had a history of substance abuse and a prior domestic violence conviction. He had consumed alcohol and a liquid amphetamine known as "base" on the night of the offence. The District Court sentenced him to a non-parole period of five years and a balance term of three years, with a finding that the offence fell in the "mid range" of objective seriousness. The Crown appealed that sentence as manifestly inadequate.
Legal Issues
- Whether the sentencing judge erred in assessing the offence as falling within the mid range of objective seriousness for an offence under section 33 of the Crimes Act 1900
- Whether that error, if established, rendered the sentence manifestly inadequate
- Whether the residual discretion to dismiss a Crown appeal despite a manifestly inadequate sentence should be exercised
- What the appropriate sentence was upon resentencing, including the applicable discount for the plea of guilty and the appropriate relationship between the non-parole period and balance term
Decision
The Court of Criminal Appeal accepted the Crown's submission that classifying the offence as falling within the mid range of seriousness was manifestly wrong. The attack was sustained and brutal, involving multiple strikes to the head across two separate phases, and it produced the most severe possible non-fatal consequences. Grove J noted that the sentencing judge had identified spontaneity and absence of planning as factors supporting the mid-range assessment, but found that those factors did not justify placing the offence at that level given the overall gravity of the conduct and its outcome.
The Court found that the resulting sentence was manifestly inadequate and that there was no proper basis to exercise the residual discretion to dismiss the appeal. The respondent's expressions of remorse and steps toward rehabilitation were accepted, and his difficult background and vulnerability were taken into account in shaping the resentencing outcome.
On resentencing, the Court assessed the appropriate term at sixteen years before the plea discount. Applying a 25 percent discount for the guilty plea, consistent with the approach taken at first instance (despite a finding that the plea was not entered at the earliest opportunity as the original judge had found), the term was reduced to twelve years. The Court applied the recognised principle of restraint in resentencing following a successful Crown appeal, and adjusted the balance term in the respondent's favour to reflect his rehabilitation needs and personal vulnerability.
Orders Made
- Crown appeal against sentence allowed
- Sentence imposed in the District Court quashed
- Respondent resentenced to imprisonment comprising a non-parole period of eight years commencing 8 July 2005 and expiring 7 July 2013, with a balance term of four years commencing 8 July 2013
- Earliest parole eligibility date specified as 7 July 2013
Key Takeaways
- An offence of maliciously inflicting grievous bodily harm with intent cannot properly be assessed as falling within the mid range of objective seriousness where the victim is left in a permanent vegetative state, regardless of the absence of premeditation.
- Spontaneity and lack of planning may be relevant factors in sentencing, but they do not automatically place an offence in the middle range when the nature of the attack and the severity of harm are extreme.
- The Court of Criminal Appeal confirmed it was unpersuaded to exercise its residual discretion to dismiss the Crown appeal, finding no sufficient basis to preserve a sentence that was manifestly inadequate.
- Where a sentencing judge makes an error about the timing of a plea of guilty but the respondent does not challenge the resulting discount, the appellate court may nonetheless apply the same discount on resentencing.
- Recognised practice requires appellate courts to exercise restraint when resentencing after a successful Crown appeal, which was reflected here in the gap between the full assessed term and the final sentence imposed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), section 33 (maliciously inflicting grievous bodily harm with intent, maximum 25 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A (standard non-parole periods, including a seven-year standard non-parole period for section 33 offences)
Cases:
- Gibson v The Queen (1991) 172 CLR 353
- R v H [1980] 3 A Crim R 53
- R v Way (2004) 60 NSWLR 168