Citation: Testalamuta v R [2007] NSWCCA 258
Court: New South Wales Court of Criminal Appeal
Date: 4 September 2007
Judge(s): McClellan CJ at CL, Hidden J, Rothman J
Background
The applicant pleaded guilty in the District Court to two serious offences arising from a single violent incident. The night before a scheduled court hearing on an assault charge, the applicant broke into the home of the prosecution witness (the alleged victim of that earlier assault), while armed with a loaded pistol and in breach of a bail condition prohibiting him from attending the premises. The victim's five-year-old son was present in the house at the time.
During the incident, the applicant shot the victim twice at close range: once in the upper thigh (the bullet passing through the leg, with the wound near the femoral artery) and once in the hand, fracturing a finger and leaving bullet fragments that could not safely be removed. The applicant then pointed the gun at a bystander who had witnessed him leaving the scene.
The charges were specially aggravated breaking and entering under s 112(3) of the Crimes Act 1900, and maliciously inflicting grievous bodily harm with intent under s 33 of the same Act. A further charge of carrying a firearm in a manner likely to endanger safety was taken into account on a Form 1 (a mechanism allowing a sentencing court to consider additional offences without recording a separate conviction). The District Court sentenced the applicant to concurrent terms of 15 years imprisonment, with a non-parole period of 10.5 years, on each charge.
Legal Issues
- Whether the sentences of 15 years imprisonment (non-parole period of 10.5 years) were manifestly excessive
- Whether the sentencing judge correctly assessed the objective gravity of each offence
- Whether the sentences bore an appropriate relationship to the standard non-parole periods applicable to each offence (7 years for both charges)
- Whether the discount for the guilty plea was adequate
- Whether the concurrent structure of the sentences was appropriate
Decision
Hidden J (with whom McClellan CJ at CL and Rothman J agreed) examined the objective gravity of each offence carefully, finding the circumstances particularly serious. The specially aggravated breaking and entering was premeditated: the applicant entered armed with a loaded weapon, carrying additional ammunition, in deliberate breach of bail conditions, with the purpose of intimidating or injuring the witness. The presence of a young child did not deter him.
The grievous bodily harm offence was assessed as above the mid-range of objective seriousness. The sentencing judge was found to have correctly identified the relevant aggravating factors: the premeditated character of the attack, the use of a firearm, the vulnerability created by the victim's child being present, the shooting of a witness to prevent him giving evidence, and the commission of all offences while on conditional liberty.
The Court acknowledged that the standard non-parole period for both charges was 7 years, and accepted that sentences above the standard were warranted on these facts. Comparing the sentence for grievous bodily harm against comparable cases, the Court found the sentence was severe but not manifestly excessive. The applicant also received the full benefit of concurrent sentences on both principal charges, when partial accumulation would have been open to the sentencing judge.
The Court noted, without being asked to resolve the point, that the imposition of identical concurrent sentences for both offences raised a question about whether the sentencing judge had separately considered the appropriate sentence for each charge as required by the principles in Pearce v The Queen (1998) 194 CLR 610. However, since that argument had not been raised in the application and any adjustment would have had no practical effect on the outcome, the Court declined to act on the observation.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Upholding the sentence, the Court of Criminal Appeal confirmed that concurrent 15-year terms (non-parole period of 10.5 years) for specially aggravated breaking and entering and grievous bodily harm with intent were not manifestly excessive where the offences involved premeditation, use of a firearm, shooting a prosecution witness on the eve of trial, breach of bail conditions, and the presence of a child.
- A sentencing court may impose sentences above the standard non-parole period where the objective gravity and personal circumstances of the offences clearly warrant it.
- Where an offender benefits from full concurrency of sentences on multiple serious charges (when partial accumulation was available), that concurrency is a relevant factor weighing against a finding of manifest excess.
- The Court noted a potential issue with imposing identical concurrent sentences for two distinct offences without separately considering the appropriate sentence for each, consistent with the principles in Pearce v The Queen, but declined to interfere because the argument had not been raised and no practical difference would have resulted.
- Commission of serious offences while subject to bail conditions, particularly in direct breach of those conditions and targeting the very proceedings the bail related to, was treated as a significant aggravating feature in the assessment of overall criminality.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): ss 33, 93G(1)(c), 112(3)
Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Way (2004) 60 NSWLR 168
- R v Amohanga & Rai (2005) 155 A Crim R 202
- R v El-Andouri [2004] NSWCCA 178
- R v Fidow [2004] NSWCCA 172
- R v Duncan & Perre [2004] NSWCCA 431
- R v Kirkland [2005] NSWCCA 130
- R v Bobak [2005] NSWCCA 320
- Vragovic v R [2007] NSWCCA 46
- R v Engert (1995) 84 A Crim R 67
- McArthur v R [2006] NSWCCA 200