Citation: Allen George WARREN v R [2009] NSWCCA 176
Court: Court of Criminal Appeal, New South Wales
Date: 25 June 2009
Judge(s): Hidden J (principal judgment), McClellan CJ at CL, McCallum J
Background
The appellant was found unfit to stand trial following his arrest in May 2005 after a violent confrontation with police at his home. Police had attended in the early hours of the morning following a noise complaint, and later returned with an entry warrant. When they forced entry, the appellant attacked an officer with a tool comprising a long wooden handle fitted with a metal wood-splitter head, causing two lacerations requiring stitching, along with other injuries.
Because the appellant had been found unfit to be tried, the matter proceeded as a "special hearing" under the Mental Health (Criminal Procedure) Act 1990, a procedure designed to determine, on limited evidence, whether an unfit accused committed the offence charged. Coolahan DCJ in the District Court found the appellant had committed three offences, including malicious wounding with intent to cause grievous bodily harm, and imposed an 18-month limiting term for the wounding offence along with good behaviour bonds for the others.
The appellant, representing himself, challenged both the conviction on the wounding charge and the sentence, arguing the injuries did not amount to grievous bodily harm, that his use of his non-dominant hand negated intent, and that the sentence was excessive.
Legal Issues
- Whether the findings of fact made at the special hearing, particularly regarding intent and the nature of the injuries, were open to the trial judge on the evidence
- Whether using the non-dominant hand, or being in a prone position, could negate intent to cause grievous bodily harm
- Whether a suspended sentence was available to the sentencing court in the context of a special hearing under the Mental Health (Criminal Procedure) Act 1990
- Whether the 18-month limiting term was manifestly excessive given the appellant's limited prior criminal history and mental health circumstances
Decision
The Court dismissed the appeal against conviction. Hidden J noted that the charge of malicious wounding with intent to cause grievous bodily harm does not require proof that grievous bodily harm was actually inflicted, only that such harm was intended. The lacerations to the officer's head constituted a wounding, and the inference of intent was readily available from the nature and formidability of the weapon, the manner in which it was swung, and the fact it was directed at the officer's head.
The arguments that the appellant used his left (non-dominant) hand and may have been lying prone at the time were considered by the trial judge and found to be immaterial. These were criticisms of findings that were clearly open on the evidence, and they provided no basis for disturbing the verdict individually or in combination.
On sentence, the Court rejected the contention that Coolahan DCJ had intended to impose a suspended sentence but changed his mind at the last moment. His Honour had in fact concluded that suspension was not legally available. The Court agreed with that conclusion. Under s 23(1) of the Mental Health (Criminal Procedure) Act, where a court determines it would have imposed a sentence of imprisonment had the accused been found guilty at trial, the only available option is to nominate a limiting term. The suspended sentence provision in s 12 of the Crimes (Sentencing Procedure) Act 1999 applies only once a sentence of imprisonment has been imposed, and there is no power to suspend a limiting term.
The Court found no error in the sentencing approach. Given the offence carries a maximum of 25 years imprisonment and a standard non-parole period of 7 years, the 18-month limiting term was described as lenient rather than excessive. The sentencing judge had properly weighed the appellant's limited criminal history, absence of prior violence, and the contribution of his mental condition to the offending.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence refused
Key Takeaways
- A conviction for malicious wounding with intent to cause grievous bodily harm does not require proof that grievous bodily harm was actually caused; the prosecution need only establish that the accused intended such harm.
- Evidence that a defendant used a non-dominant hand, or was in an awkward physical position at the time of the offence, does not necessarily negate intent, particularly where the nature of the weapon and the manner of its use support an inference of intent.
- Under s 23(1) of the Mental Health (Criminal Procedure) Act 1990, once a court conducting a special hearing determines that it would have imposed imprisonment on a finding of guilt, it must nominate a limiting term and has no power to suspend it.
- The suspended sentence provision in s 12 of the Crimes (Sentencing Procedure) Act 1999 operates only after a sentence of imprisonment is imposed in the ordinary way, and does not extend to limiting terms imposed under the special hearing regime.
- In dismissing both the conviction appeal and the sentence application, the Court of Criminal Appeal confirmed that an 18-month limiting term for malicious wounding with intent, on the particular facts, was lenient given the applicable maximum and standard non-parole period.
Legislation and Cases Referenced
Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW), particularly s 23(1) and (2)
- Criminal Appeal Act 1912 (NSW), s 2
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
Cases: No cases were cited in the judgment.