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Court of Criminal Appeal 7 May 2009

R v Bonett

[2009] NSWCCA 135

Assault & violence
CRIMINAL LAW SENTENCING CROWN APPEAL

Citation: R v Bonett [2009] NSWCCA 135
Court: Court of Criminal Appeal, New South Wales
Date: 7 May 2009
Judge(s): Grove J, Buddin J, RA Hulme J

Background

The respondent was convicted in the District Court of malicious wounding with intent to do grievous bodily harm under section 33 of the Crimes Act 1900. The offence occurred in the early hours of 4 December 2006 when the respondent, moderately intoxicated, attacked a man outside a Sydney nightclub. The attack involved punching and kicking the victim before smashing a beer bottle and using it to slash the victim's face, causing two wounds that required a plastic surgeon and left lasting visible scarring.

The respondent was sentenced to a non-parole period of five years with an overall term of eight years, dating from 22 August 2007. The maximum penalty for the offence is 25 years imprisonment, with a standard non-parole period of seven years.

The Crown appealed, contending the sentence was manifestly inadequate. Among the more striking aggravating features, the offence was committed while the respondent was serving a sentence of periodic detention for a prior "glassing" offence involving similarly serious facial injuries to another victim.

  • Whether the sentence imposed was manifestly inadequate, having regard to the objective seriousness of the offence
  • Whether the sentencing judge correctly assessed the offence as falling "slightly below the mid-range of objective seriousness" rather than at the mid-range, as the Crown contended
  • Whether the sentencing judge properly applied the principles from Veen v The Queen (No 2) (1988) 164 CLR 465 when taking into account the respondent's antecedent criminal behaviour
  • Whether the sentencing judge erred in finding "special circumstances" justifying a departure from the standard statutory ratio between the non-parole period and the overall sentence

Decision

On the question of manifest inadequacy, the Court of Criminal Appeal dismissed the appeal. The Court acknowledged the sentence was lenient, and Grove J described it as "markedly lenient" and as "bordered upon the limit" of manifest inadequacy. However, leniency alone does not warrant appellate intervention: the Crown must establish the sentence was manifestly inadequate, and a majority of the Court found it fell short of that threshold.

On the issue of objective seriousness, the Crown argued the sentencing judge should have placed the offence at the mid-range rather than slightly below it. The Court found the difference between those two assessments was not sufficiently substantial to justify intervention, particularly given that the Crown accepted the sentencing judge's factual findings could not be challenged.

Regarding the prior criminal record, the Court rejected the submission that the sentencing judge had failed to apply Veen (No 2) principles. The sentencing judge had in fact made detailed reference to the prior glassing offence, described it as a "glaring aggravating factor," and treated the respondent's criminal record as an aggravating matter generally, thereby giving effect to those principles even without explicitly citing the case.

On the "special circumstances" finding, the Court held it was well open to the sentencing judge to extend the non-parole period ratio. A young offender with a mental disorder was considered likely to benefit from extended post-release supervision, and the sentencing judge's findings of genuine remorse and positive custodial progress supported a "reasonable to good" rehabilitation prognosis. The Court also noted that the alternative relief sought by the Crown, restoring the statutory ratio by increasing the non-parole period to six years, was in any event difficult to accommodate given the restraint applicable to Crown appeals.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a lenient sentence is not, by itself, a sufficient basis for appellate intervention: the Crown must demonstrate manifest inadequacy, a higher threshold.
  • A narrow factual distinction between "slightly below mid-range" and "mid-range" objective seriousness will not, on its own, justify an appellate court substituting its own assessment for that of the sentencing judge.
  • Under Veen v The Queen (No 2), a sentencing judge need not explicitly cite the case by name, provided the judgment clearly applies and gives effect to its principles regarding antecedent criminal behaviour.
  • Where an offender is young and has a diagnosed mental disorder, a finding of "special circumstances" to extend the supervision period beyond the statutory ratio can be appropriate, particularly where genuine remorse and rehabilitative progress are established.
  • The standard non-parole period for malicious wounding with intent to cause grievous bodily harm under section 33 of the Crimes Act 1900 is seven years, against a maximum of 25 years; committing the offence while on periodic detention for a materially similar prior offence was treated as extraordinary aggravation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 35
- Criminal Appeal Act (NSW), s 5D

Cases:
- Veen v The Queen (No 2) (1987-88) 164 CLR 465
- Carroll v The Queen [2009] HCA 13
- Mackey v R [2006] NSWCCA 254
- Mulato v R [2006] NSWCCA 282
- R v Way (2004) 60 NSWLR 168
- R v Wright [2009] NSWCCA 3