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10
Court of Criminal Appeal 28 July 2008

Graham THEWLIS v R

[2008] NSWCCA 176

Also reported as (2008) 186 A Crim R 279
Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE PLEAS OF GUILTY MALICIOUS WOUNDING WHETHER SENTENCE MANIFESTLY EXCESSIVE OBJECTIVE SERIOUSNESS OF THE OFFENCE

Citation: Graham Thewlis v R [2008] NSWCCA 176
Court: New South Wales Court of Criminal Appeal
Date: 28 July 2008
Judges: Spigelman CJ, Simpson J, Price J

Background

The appellant pleaded guilty in the District Court to two offences: maliciously inflicting grievous bodily harm with intent (count 1) and malicious wounding with intent to cause grievous bodily harm (count 2). Both offences were committed in the early hours of 2 July 2006 against his recently estranged former partner and a male friend with whom she had begun a relationship.

The offending involved the appellant attending the friend's home late at night and attacking both victims with a knife. The female victim was stabbed repeatedly, suffering life-threatening injuries including signs of impending cardiac arrest. She was taken to hospital for emergency surgery and ultimately made a good recovery.

Immediately after the attack, the appellant went to a neighbour's home and asked them to call emergency services, telling them he had stabbed the female victim in the chest. He then returned to the scene and waited for police, to whom he admitted the stabbings. At first instance, Morgan DCJ sentenced the appellant to a total term comprising a five-year non-parole period and a four-year balance of term. The appellant sought leave to appeal on the ground that the sentences were manifestly excessive.

  • Whether the sentences imposed by Morgan DCJ were manifestly excessive.
  • What weight, if any, should be given to the objective seriousness of the offences.
  • Whether the appellant's immediate post-offence conduct in summoning emergency assistance constituted a mitigating factor capable of reducing his sentence.
  • Whether voluntary ameliorative conduct following a violent offence can operate as a mitigating factor in sentencing as a matter of principle.

Decision

The Court of Criminal Appeal accepted that the offences were objectively serious. However, Simpson J, with whom Spigelman CJ and Price J agreed, concluded that the appellant's immediate post-crime conduct warranted recognition in the sentence. Specifically, the court found that the appellant's prompt decision to alert neighbours and ensure an ambulance was called played a significant, and quite possibly decisive, role in saving the female victim's life.

Simpson J identified a sentencing principle: in an appropriate case, conduct that voluntarily ameliorates the effects of a crime on a victim can justify mitigation of sentence. Her Honour was careful to distinguish this from mitigation of the offence itself, which concerns objective gravity. The principle is a narrow one, and her Honour stressed that appropriate cases are rare.

Spigelman CJ added observations in support of this principle, drawing an analogy with earlier cases involving voluntary repayment in property crimes. His Honour noted that something beyond merely taking a step to redress effects on the victim is required. In this case, the special additional element was the potentially life-saving significance of the appellant's immediate response.

On that basis, the Court reduced both the head sentence and the non-parole period for count 1 by one year, finding that this reduction appropriately reflected the totality of the appellant's ameliorative conduct and its consequences.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in respect of count 1; sentence quashed.
  • On count 1, the appellant sentenced to imprisonment with a non-parole period of 3 years commencing 2 July 2007 and expiring 1 July 2010, with a balance of term of 3 years expiring 1 July 2013.

Key Takeaways

  • The Court of Criminal Appeal confirmed that immediate post-offence conduct that materially ameliorates the harm caused to a victim can, in an appropriate case, operate as a mitigating factor at sentencing. Such cases are described as rare.
  • A distinction exists between mitigation of the offence (which goes to objective gravity) and mitigation of sentence (which may take into account post-offence conduct): the court was explicit that only the latter was engaged here.
  • Where ameliorative conduct is relied upon in mitigation, something beyond a mere remedial step is required. The decisive factor in this case was the potential life-saving consequence of the appellant's prompt action.
  • Analogies with voluntary reparation in property crime cases informed the court's reasoning, though the principle as articulated here extends beyond financial repayment to post-offence conduct in violent offending.
  • In dismissing the appeal as to count 2 while allowing it as to count 1, the court reduced the total sentence by one year across both the head sentence and non-parole period, reflecting the mitigating weight of the appellant's post-crime conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2), Pt 3 Div 1A

Cases:
- R v Phelan (1993) 66 A Crim R 446
- Stratford v R [2007] NSWCCA 279
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Ellis (1986) 6 NSWLR 603
- R v Conway [2001] NSWCCA 51; 121 A Crim R 177
- R v Berlinsky [2005] SASC 316
- Dowling v Phillips (Supreme Court of WA, Heenan J, 15 August 1995, unreported)