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Court of Criminal Appeal 29 June 2007

R v DAVIES

[2007] NSWCCA 178

Assault & violence
CRIMINAL LAW SENTENCING CROWN APPEAL AGAINST SENTENCE SUSPENDED SENTENCE WHETHER SENTENCE MANIFESTLY INADEQUATE INTOXICATION

Citation: R v Davies [2007] NSWCCA 178
Court: NSW Court of Criminal Appeal
Date: 29 June 2007
Judge(s): Tobias JA, Latham J, Fullerton J

Background

The respondent pleaded guilty in the District Court at Penrith to malicious wounding under s 35 of the Crimes Act 1900, arising from an incident on 10 December 2005. During a pub altercation in which he initially attempted to intervene between two arguing men, the respondent struck the victim with a beer glass, shattering it on impact and causing multiple facial lacerations, a bleed into the eye, and permanent scarring. The victim was hospitalised for four days.

The respondent cooperated with police from the outset, voluntarily admitting responsibility at the police station immediately after the incident and again during a formal interview. He told police he had consumed 15 middies of beer and that he struck out in a reflex response to a perceived threat. The Crown accepted the guilty plea to malicious wounding in full satisfaction of an indictment that also charged the more serious offence of malicious wounding with intent to inflict grievous bodily harm, which carries a maximum of 25 years imprisonment.

The sentencing judge imposed a suspended sentence of ten months under s 12 of the Crimes (Sentencing Procedure) Act 1999. The Crown appealed, arguing the sentence was manifestly inadequate and that the sentencing approach was legally flawed.

  • Whether the sentencing judge's discount for the late guilty plea was appropriate
  • Whether the sentencing judge erred in treating the offender's intoxication as a mitigating factor
  • Whether the suspended sentence was manifestly inadequate
  • Whether the sentencing judge failed to follow the required statutory approach when considering alternatives to full-time custody
  • Whether, even if error was established, the Court of Criminal Appeal should exercise its residual discretion to dismiss the Crown appeal

Decision

Guilty plea discount: The sentencing judge allowed a two-month reduction on a twelve-month head sentence, equating to approximately 16 per cent. The Crown argued no more than 10 per cent was warranted given the plea was entered on the day of trial. The Court found the judge had focused on the utilitarian value of the plea (its practical benefit to the justice system) rather than treating it as an expression of remorse, and that the discount was within range. Even if it had been excessive, the difference of three weeks' imprisonment would not alone justify intervention on a Crown appeal.

Intoxication: The Crown contended the judge impermissibly treated the respondent's intoxication as a mitigating factor. The Court was not persuaded by this argument. His Honour's references to intoxication were directed at the circumstances of the offending, and nothing in the sentencing remarks demonstrated that intoxication was applied as a positive mitigating factor contrary to established principle.

Approach to alternatives to full-time custody: The Court identified genuine legal error here. The proper sentencing process requires a court first to determine whether full-time custody is warranted, then to fix the length of any term without regard to how it will be served, and only then to consider the statutory alternatives (from most to least restrictive). The sentencing judge failed to articulate this process and, importantly, did not expressly consider whether periodic detention, which was available and for which the respondent had been assessed as eligible, would have been more appropriate than a suspended sentence, the most lenient option.

Residual discretion: Despite finding error in the sentencing approach, the Court declined to intervene. It was satisfied that a suspended sentence fell within the available range when the discretion was properly exercised, having regard to the finding of low objective criminality, a strong subjective case, and the sentencing judge's assessment that the risk of reoffending was low. The Crown appeal was accordingly dismissed.

Orders Made

  • Crown appeal against sentence dismissed.

Key Takeaways

  • A sentencing court must follow a prescribed sequence when considering alternatives to full-time custody: first determine whether imprisonment is warranted, then fix the term, and only then assess how it should be served, moving through the statutory alternatives from most to least restrictive.
  • Failure to expressly consider an intermediate alternative, such as periodic detention, before imposing a suspended sentence constitutes legal error in the sentencing process.
  • In dismissing the appeal, the Court confirmed that establishing sentencing error does not automatically lead to resentencing: the Court of Criminal Appeal retains a residual discretion to decline intervention where the outcome was nonetheless within the available range.
  • A guilty plea discount may properly reflect utilitarian value alone (the practical benefit to the justice system) where the plea was not early, without that discount being characterised as recognition of remorse.
  • Under established NSW authority, intoxication does not operate as a mitigating factor in sentencing; references to an offender's intoxicated state are permissible only when describing the circumstances of the offending, not when advanced as positive mitigation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 9, 12
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Chaplin v The Queen (2006) 160 A Crim R 85
- Coleman v R (1990) 47 A Crim R 306
- R v Baker [2000] NSWCCA 85
- R v SY & Anor [2003] NSWCCA 291
- R v Tran [1999] NSWCCA 109
- R v Wall [2002] NSWCCA 42
- R v Zamagias [2002] NSWCCA 17