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Court of Criminal Appeal 30 September 2009

Wilkins v R

[2009] NSWCCA 222

Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Wilkins v R [2009] NSWCCA 222
Court: NSW Court of Criminal Appeal
Date: 30 September 2009
Judge(s): McClellan CJ at CL, RA Hulme J, Davies J

Background

The applicant pleaded guilty in the District Court to malicious wounding with intent to do grievous bodily harm under s 33(1)(a) of the Crimes Act 1900, which carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of seven years. The offence arose from a sustained hammer attack on the new partner of the applicant's former de facto, carried out in the victim's backyard in the early hours of the morning. The victim was struck repeatedly to the head while pinned to the ground, and was only stopped when two neighbours physically intervened.

The attack was the culmination of a campaign of harassment. In the months prior, the applicant had set fire to vehicles at the victim's property on three separate occasions, and had repeatedly breached an apprehended domestic violence order obtained by his former partner. Those arson offences were taken into account on a Form 1 document at sentencing.

The District Court sentenced the applicant to 11 years and 6 months' imprisonment with a non-parole period of 7 years. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge erred by failing to take into account the applicant's mental disorder as a mitigating factor.
  • Whether the judge made an error in assessing the offence as mid-range in seriousness by relying on injuries that were not technically "wounds" for the purposes of the s 33 offence.
  • Whether the resulting sentence was manifestly excessive.

Decision

The Court of Criminal Appeal found that the sentencing judge had made a material error in identifying the seriousness of the offence. The judge had treated the offence as mid-range partly on the basis of injuries that were not legally "wounds" within the meaning of the charged offence. Because the judge anchored the mid-range finding, at least in part, on those non-qualifying injuries, this constituted an error in the sentencing process sufficient to warrant intervention.

On the mental disorder question, the Court accepted that the applicant's mental state at the time of the offending was a relevant consideration that the sentencing judge had not adequately addressed. While a mental disorder does not necessarily reduce culpability, it is a factor that must be weighed in the sentencing exercise, and its omission contributed to the appellate court's conclusion that resentencing was required.

Having found identifiable error, the Court conducted a resentencing exercise. It assessed a starting point of 10 years as appropriate before applying a 15 per cent reduction for the guilty plea, producing a sentence of 8 years and 6 months. The Court declined to find good prospects of rehabilitation, noting the absence of evidence that the applicant had undertaken any relevant programs or counselling, and the difficulty in forecasting future behaviour under stress. The Court did, however, treat the Form 1 arson offences as serious matters forming part of a deliberate campaign of revenge.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court quashed.
  • Applicant resentenced to imprisonment comprising a non-parole period of 5 years and 6 months, with a balance of term of 3 years. The sentence commences 22 January 2007, with parole eligibility from 21 July 2012 and total expiry on 21 July 2015.

Key Takeaways

  • A sentencing judge errs by assessing the seriousness of a wounding offence partly by reference to injuries that do not constitute "wounds" for the purposes of the charged offence, even where those injuries are severe.
  • Mental disorder at the time of offending is a sentencing consideration that must be addressed; failure to engage with it is a factor capable of vitiating an otherwise lawful sentence.
  • Where appellate courts identify identifiable error in the sentencing process, they are not confined to correcting that error in isolation but must resentence the offender by undertaking their own fresh assessment of all relevant factors.
  • A guilty plea to a s 33(1)(a) offence attracted a 15 per cent discount in this case, applied from a starting point that the Court assessed independently of the District Court's findings.
  • Rehabilitation prospects remain a matter for the offender to establish on the balance of probabilities; the absence of evidence of participation in programs or counselling will weigh against a favourable finding, even where prior criminal history is limited.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(a), s 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Benitez v R [2006] NSWCCA 21; (2006) 160 A Crim R 166
- CAR v R [2009] NSWCCA 138
- House v The King (1936) 55 CLR 499
- McCullough v R [2009] NSWCCA 94
- Mulato v R [2006] NSWCCA 282
- R v Champion (1992) 64 A Crim R 244
- R v Engert (1995) 84 A Crim R 67
- R v Fahda [1999] NSWCCA 267
- R v Letteri, unreported, NSWCCA, 18 March 1992
- R v Mitchell; R v Gallagher [2007] NSWCCA 296
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Way (2004) 60 NSWLR 168
- R v Wright (1997) 93 A Crim R 48
- Sayin v R [2008] NSWCCA 307
- The Queen v De Simoni (1981) 147 CLR 383