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Court of Criminal Appeal 15 December 2008

Wright v R

[2008] NSWCCA 282

Assault & violence
CRIMINAL PRACTICE & PROCEDURE USE OF GLASS BOTTLE AS WEAPON HISTORY OF SIMILAR OFFENCES WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Wright v R [2008] NSWCCA 282
Court: NSW Court of Criminal Appeal
Date: 15 December 2008
Judge(s): Tobias JA, Kirby J, Hall J

Background

The appellant was convicted by jury of maliciously inflicting grievous bodily harm on a man at a Sydney hotel in the early hours of 28 October 2006. He had struck the victim in the face with a glass while the victim was seated, causing severe eye injuries, significant vision loss, facial scarring, and lasting psychological harm.

At sentencing, the appellant claimed he believed the victim had paid one of the young women present for sexual services. The sentencing judge, Solomon DCJ in the District Court, rejected that explanation. CCTV footage showed the appellant had a romantic interest in the two women before the victim arrived, and the judge found the attack was motivated by rivalry rather than concern for the woman's welfare.

Solomon DCJ sentenced the appellant to six years imprisonment with a non-parole period of four years. The appellant sought leave to appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the total sentence of six years (with a four-year non-parole period) for maliciously inflicting grievous bodily harm under s 35 of the Crimes Act 1900 was manifestly excessive.
  • Whether the sentencing judge gave appropriate weight to the aggravating circumstances, including intoxication and the commission of the offence while on conditional bail.
  • Whether the sentencing judge appropriately applied the principle of personal deterrence in light of the appellant's criminal history.

Decision

The Court of Criminal Appeal dismissed the appeal, finding no error in the sentence imposed. Kirby J (with whom Tobias JA and Hall J agreed) accepted the Crown's submissions that the sentence fell within the appropriate range given the objective seriousness of the offence and the appellant's subjective circumstances.

The court noted two significant aggravating factors. First, the offence was committed while the appellant was on conditional bail. Second, the appellant had consumed alcohol knowing he had a documented history of committing violent offences while intoxicated, and had acknowledged a pattern of arming himself with glass or a bottle in those situations. The sentencing judge was entitled to treat these factors seriously.

The court affirmed that a finding of continuing disregard for the law supported an element of personal deterrence in the sentence. Although the offence was not in the worst category, it sat at the high end of objective seriousness. The appellant's subjective case, while considered, was not exceptional.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence need not be the maximum to be appropriate where the offending falls at the high end of objective seriousness.
  • A history of committing violent offences while intoxicated, combined with deliberate alcohol consumption before the offence, is a significant aggravating factor available to a sentencing court.
  • Committing an offence while on conditional bail constitutes an aggravating circumstance under the Crimes Act 1900 and was treated as such here.
  • Personal deterrence is an appropriate sentencing consideration where an offender demonstrates a continuing pattern of disregard for the law, even absent other exceptional subjective features.
  • No precise correlation between culpability levels across unrelated cases is required: sentencing involves the exercise of judicial discretion across a range of permissible outcomes, not a single correct figure.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 35, 21A(2)(j)

Cases:
- Veen v The Queen (No 2) (1987-1988) 164 CLR 465
- R v Steeden (NSW CCA, unreported, 19 August 1994)
- R v Woodhouse (NSW CCA, unreported, 20 December 1996)
- R v McAdam (NSW CCA, unreported, 29 September 1997)
- R v Rowe (NSW CCA, unreported, 10 December 1997)
- R v Mackey [2006] NSWCCA 254
- Morris v R [2007] NSWCCA 127
- R v Trevenna [2004] NSWCCA 43; (2004) 149 A Crim R 505