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9
Court of Criminal Appeal 5 June 2009

R v Altaf THAWER

[2009] NSWCCA 158

Assault & violence
CRIMINAL LAW CROWN APPEAL INFLICTION OF GRIEVOUS BODILY HARM SUSPENDED SENTENCE WHETHER MANIFESTLY INADEQUATE RELEVANCE OF STANDARD NON

Citation: R v Altaf Thawer [2009] NSWCCA 158
Court: NSW Court of Criminal Appeal
Date: 5 June 2009
Judge(s): Giles JA, Howie J, Latham J

Background

The respondent pleaded guilty in the District Court to recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900, following a stabbing incident at a Wesley Mission residential facility in December 2007. The respondent and the victim had been co-residents whose relationship had deteriorated over time. On the day of the offence, the respondent stabbed the victim with a kitchen knife, causing injuries so severe that the victim's bowel protruded from the wound. The victim required emergency surgery, spent six days in intensive care, and a further ten days in the general ward.

The sentencing judge found the respondent had been provoked and acted in self-defence, but that his response was excessive. Taking into account a guilty plea discount and the respondent's psychiatric history, including presentation on the schizophrenic spectrum, Ashford DCJ sentenced him to 16 months' imprisonment and then suspended that sentence entirely under s 12 of the Crimes (Sentencing Procedure) Act 1999.

The Crown appealed, contending the suspended sentence was manifestly inadequate and that the sentencing judge failed to give adequate reasons for suspending it.

  • Whether the fully suspended sentence of 16 months was manifestly inadequate for an offence of recklessly causing grievous bodily harm, having regard to its objective seriousness
  • Whether the sentencing judge adequately engaged with the standard non-parole period of four years prescribed for the offence
  • Whether the sentencing judge failed to give reasons for suspending the sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999
  • What resentence the Court of Criminal Appeal should impose, having regard to double jeopardy considerations applicable in Crown appeals

Decision

The Court of Criminal Appeal allowed the appeal, finding the sentence manifestly inadequate. The objective seriousness of the offence was significant: the stabbing caused grave internal injuries requiring emergency surgery and a prolonged hospitalisation, and the respondent had expressed a troubling attitude in his pre-sentence assessment, including that the victim "deserved" his injuries. The sentencing judge had also failed to give adequate reasons for suspending the sentence, as required under s 12 of the Crimes (Sentencing Procedure) Act 1999.

Howie J, with whom Giles JA and Latham J agreed, found the original 16-month term was itself inadequate before the question of suspension was even reached. Even accounting for the guilty plea, the finding of provocation and excessive self-defence, the respondent's psychiatric difficulties, and the potential hardship of custody given his mental health, the appropriate total sentence after a 15 percent discount should have been no less than three years and ten months, with a non-parole period of approximately two years.

The Court then turned to resentencing. Applying the double jeopardy principle that applies in Crown appeals (meaning a respondent should not be punished more harshly simply because the Crown chose to appeal), the Court reduced the non-parole period to 16 months, describing this as "barely" meeting the requirements of punishment and a "very lenient" outcome. The total sentence imposed was 46 months, comprising a 16-month non-parole period and a balance of term of 30 months.

The Court also directed that prison health authorities be notified of the respondent's admission and provided with the psychiatric report of Dr Westmore, reflecting the respondent's identified mental health needs.

Orders Made

  • The appeal was allowed and the sentence imposed in the District Court was quashed.
  • The respondent was resentenced to a total term of 46 months' imprisonment, comprising a non-parole period of 16 months and a balance of term of 30 months, dating from 9 April 2009.
  • The non-parole period was set to expire on 8 August 2010.
  • Prison health authorities were directed to be informed of the respondent's admission and provided with the psychiatric report of Dr Westmore.

Key Takeaways

  • A fully suspended sentence for a serious offence of recklessly causing grievous bodily harm, involving a near-fatal stabbing, was held to be manifestly inadequate even where significant mitigating factors (provocation, excessive self-defence, a guilty plea, and psychiatric vulnerability) were present.
  • Under s 12(3) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court that suspends a sentence cannot set a non-parole period; this means the nominal term of the sentence becomes the functional equivalent of the total sentence, which the Court found relevant in assessing adequacy.
  • A sentencing court is required to give reasons when suspending a sentence under s 12, and failing to do so constitutes an error that can ground a Crown appeal.
  • The double jeopardy principle in Crown appeals operates to reduce the resentenced non-parole period below what would otherwise be appropriate, as respondents should not bear the full burden of the Crown's election to appeal.
  • The standard non-parole period of four years for this offence remained a relevant reference point, even where departure was justified by mitigating factors, and sentencing courts must engage with it in reasons.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 4A, 33(1), 33(3), 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 12(3), 54C

Cases:
- Smith v R [2009] NSWCCA 17
- R v Borkowski [2009] NSWCCA 102
- R v Wall [2002] NSWCCA 42
- MLP v R [2006] NSWCCA 271; 164 A Crim R 93
- R v Knight [2007] NSWCCA 283; 176 A Crim R 338
- R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94
- R v Johnson [2003] NSWCCA 129
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Zamagias [2002] NSWCCA 17