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Court of Criminal Appeal 13 February 2009

S K v Regina

[2009] NSWCCA 21

Assault & violence
CRIMINAL LAW INTOXICATION SENTENCE SERVED ON PROTECTION STANDARD NON PAROLE PERIOD GRIEVOUS BODILY HARM

Citation: S K v Regina [2009] NSWCCA 21
Court: New South Wales Court of Criminal Appeal
Date: 13 February 2009
Judge(s): Grove J, Blanch J, Kirby J

Background

The applicant was a general support officer with the NSW Police Service who, on 1 December 2006, attended a farewell luncheon followed by further drinking at a hotel. Later that evening, while waiting on a platform at Circular Quay railway station, she became involved in a brief exchange with a 59-year-old stranger who asked her to stop spitting and cover her mouth when coughing.

Shortly afterwards, the applicant walked quickly to where the stranger was standing with her back to the tracks, placed both hands on the woman's back, and pushed her off the platform as a train was entering the station. The victim fell face-first onto the tracks, sustained a fractured leg, suffered multiple injuries requiring surgery, and broke her neck. She was hospitalised for the better part of six months across multiple admissions and required ongoing treatment.

The applicant pleaded guilty in the District Court to maliciously inflicting grievous bodily harm with intent to do grievous bodily harm under s 33 of the Crimes Act 1900. She was sentenced to a non-parole period of eight years with a balance of term of four years. She then sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge gave adequate consideration to the applicant's intoxication at the time of the offence, and whether this warranted a reduction in sentence
  • Whether the sentencing judge erred by failing to address the fact that, as a former police employee, the applicant would serve her sentence on protection (that is, in a segregated and more restrictive area of the prison), and whether that hardship justified a reduction in sentence

Decision

On the question of intoxication, the Court found no error in the sentencing judge's approach. The evidence did not establish that the applicant was severely or profoundly intoxicated; descriptions from witnesses suggested she was affected by alcohol but not incapacitated. The Court confirmed that intoxication can, depending on its degree, operate as a mitigating factor, but found that the level of intoxication here did not warrant any reduction in the sentence imposed.

On the protective custody issue, the Court acknowledged that the sentencing judge did not explicitly mention in his remarks on sentence that the applicant would serve her term on protection. Given the applicant's background as a police employee, however, the Court observed that an experienced judge would almost certainly have been aware of this. In any event, the Court examined affidavit material filed on appeal addressing the actual conditions of the applicant's protective custody at Silverwater Women's Corrections Centre.

The Court weighed the competing affidavit evidence. The applicant's affidavit described reduced access to programmes, fewer work opportunities, restricted library access, and more frequent lockdowns. The Senior Assistant Superintendent's affidavit, however, described a different picture: programmes were available, the applicant was employed as a domestic cleaner, library access existed, and lockdowns were no more frequent than for other prisoners.

The Court concluded that this material did not justify any reduction in either the non-parole period or the total sentence. It emphasised that the offence was extremely serious and that the sentence needed to reflect the principle of general deterrence in the clearest terms. Under s 6(3) of the Criminal Appeal Act 1912, the Court must be satisfied that a less severe sentence is warranted in law before interfering, and the Court was not so satisfied.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that intoxication operates as a mitigating factor only where its degree is established to be significant; moderate alcohol intoxication, unsupported by evidence of severe impairment, does not automatically reduce a sentence.
  • Where a sentencing judge does not explicitly address protective custody conditions in remarks on sentence, the Court of Criminal Appeal may examine fresh affidavit evidence on appeal to determine whether any adjustment is warranted.
  • Conflicting affidavit evidence about prison conditions, where the material overall does not establish materially harsher circumstances than ordinary custody, will not necessarily justify a reduction in sentence.
  • Under s 6(3) of the Criminal Appeal Act 1912, the appellate court must be positively satisfied that a less severe sentence is warranted in law before it will intervene; the mere absence of express mention of a relevant factor at first instance does not automatically compel resentencing.
  • A non-parole period of eight years (above the standard non-parole period of seven years) for a s 33 Crimes Act 1900 offence involving a random, unprovoked push onto railway tracks causing severe and lasting injury was upheld as appropriate to reflect general deterrence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Waters v R [2007] NSWCCA 219
- R v Mitchell [2007] NSWCCA 296
- R v Coleman (1990) 47 A Crim R 306
- R v Fletcher-Jones (1994) 75 A Crim R 381
- R v Fryar [2008] NSWCCA 171
- Jones and Kelly (1985) 20 A Crim R 142
- R v Harborne (NSWCCA, unreported, 12 October 1994)
- Carlton v R [2008] NSWCCA 244
- R v Way (2004) 60 NSWLR 168
- R v Mostyn [2004] NSWCCA 97