Citation: Spooner v Regina [2009] NSWCCA 247
Court: NSW Court of Criminal Appeal
Date: 28 September 2009
Judges: Macfarlan JA, Howie J, Hislop J
Background
The appellant was a young man who, on 27 October 2007, struck another man in the face with a glass outside the Bushranger Hotel at Largs. The victim suffered a penetrating wound to his left eye, requiring emergency surgery and multiple further procedures. He ultimately lost the use of his left eye entirely and sustained permanent facial scarring.
The appellant had pleaded guilty to recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900, an offence carrying a maximum penalty of ten years imprisonment. The sentencing judge in the District Court imposed a sentence of four years imprisonment with a non-parole period of one year and ten months. The appellant sought leave to appeal that sentence to the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge erred by failing to find that the appellant did not intend to use the glass as a weapon
- Whether it was open to the sentencing judge to classify the offence as above the mid-range of objective seriousness
- Whether the sentence was manifestly excessive
Decision
On the first ground, the Court found no error. Although the sentencing judge did not make an express finding that the appellant lacked the intention to use the glass, her Honour had accepted the appellant's evidence that he did not deliberately arm himself with it and had attributed the blow to his intoxicated state. The Court was satisfied that any implied finding adverse to the appellant on the question of intention was open on the evidence, including the appellant's own record of interview in which he acknowledged he was "going to hit" the victim with the hand holding the glass.
On the second ground, the Court upheld the finding of above mid-range objective seriousness. While no premeditation was involved and only a single blow was struck, the consequences for the victim were severe and permanent. The sentencing judge was entitled to weigh those consequences as elevating the offence above the midpoint of the range.
On the third ground, the Court rejected the submission that the sentence was manifestly excessive. Drawing on comparable decisions, including Sayin v R [2008] NSWCCA 307, the Court noted that the sentence imposed was arguably lenient rather than excessive, particularly given the increased maximum penalty of ten years applicable to the charge. The Court endorsed observations from Sayin that "glassing" offences in licensed premises were becoming alarmingly prevalent and that courts must impose very severe penalties within the prescribed limits.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A sentencing judge is not required to make an express finding on every discrete factual matter, provided the remarks on sentence sufficiently reflect acceptance of the relevant evidence. The Court of Criminal Appeal found no error where the judge had accepted the appellant's account of intoxication and lack of deliberate arming, without formally stating he lacked intent.
- Above mid-range objective seriousness can be established even where an offence involved no premeditation and only a single blow, if the consequences for the victim were permanent and life-altering.
- The Court of Criminal Appeal affirmed that "glassing" offences attract very serious sentencing outcomes, and noted the increased ten-year maximum penalty under s 35(2) of the Crimes Act 1900 should produce a marked increase in penalties compared to earlier cases decided under a lower maximum.
- In dismissing the appeal, the Court signalled that the four-year sentence with a one year and ten month non-parole period was at the lenient end of the available range, not the harsh end.
- Significant subjective mitigating factors, including youth, a guilty plea, remorse, strong employment prospects, and the absence of a prior criminal history, were already reflected in the sentence and did not render it excessive.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 35(2) (recklessly causing grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (special circumstances), s 54D (standard non-parole period)
Cases:
- R v Davies [2007] NSWCCA 178
- R v Willett (NSWCCA, 21 August 1998, unreported)
- Sayin v R [2008] NSWCCA 307