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Court of Criminal Appeal 26 November 2009

Gillon v Regina

[2009] NSWCCA 277

Assault & violence
CRIMINAL LAW SENTENCE APPEAL RECKLESSLY CAUSING GRIEVOUS BODILY HARM APPEAL DISMISSED NO ISSUE OF PRINCIPLE

Citation: Gillon v Regina [2009] NSWCCA 277
Court: NSW Court of Criminal Appeal
Date: 26 November 2009
Judge(s): McClellan CJ at CL, Howie J, Hislop J (unanimous)

Background

The appellant pleaded guilty in the District Court to recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900, an offence carrying a maximum of 10 years imprisonment and a standard non-parole period of 4 years. The offence arose from a violent assault on the de facto partner of the appellant's cousin at a private residence in Bourke in February 2008. The assault was triggered when the victim struck the appellant's cousin, after which the appellant launched into what the sentencing judge described as a prolonged and severe attack involving repeated punches and kicks to the victim's head and body.

The victim sustained extensive injuries, including multiple facial fractures, bilateral jaw fractures, rib fractures, a chest pneumothorax, and a swollen testicle. He was transported through three hospitals and required ongoing medical review, with reconstructive facial surgery of over 10 hours anticipated after discharge.

King DCJ sentenced the appellant to a non-parole period of 3 years (commencing 6 February 2008) and a balance of term of 1 year, resulting in a total head sentence of 4 years. The appellant sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge erred by failing to provide reasons for departing from the standard non-parole period
  • Whether the sentencing judge failed to properly assess the objective seriousness of the offence in accordance with the principles applicable where a standard non-parole period applies
  • Whether the sentencing judge erred by failing to consider whether "special circumstances" existed justifying a departure from the standard ratio between non-parole period and head sentence

Decision

On the first ground, the Court found no error. The sentencing judge had expressly addressed the standard non-parole period and identified the reasons why the sentence imposed fell below it, including consideration of the guilty plea and subjective matters personal to the appellant. Adequate reasons had been given.

On the second ground, the appellant sought to argue that the assault had occurred in three distinct stages, only the third of which was entirely unlawful, and that this reduced the appellant's culpability below the midrange. The sentencing judge rejected this approach as unrealistic, finding the appellant responsible for all injuries inflicted. The Court of Criminal Appeal confirmed that characterising objective seriousness is classically within the sentencing judge's role, and that an appellate court will be slow to interfere with such a finding. Given the severity of the injuries, the Court held that the sentencing judge's assessment of objective seriousness was open to him.

On the third ground, the Court found the sentencing judge had implicitly considered whether special circumstances existed, having exercised a discretion to impose a sentence below the standard non-parole period and having regard to all relevant factors. No error in this respect was established.

The Court applied the well-established principle from Regina v Simpson that an appellate court will interfere with a sentence only if error is demonstrated and the court forms a positive opinion that a less severe sentence is warranted in law. Neither condition was satisfied here.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that assessing the objective seriousness of an offence is a function squarely within the sentencing judge's role, and that appellate courts are slow to substitute their own assessment where the sentencing judge's characterisation was open on the facts.
  • A sentencing judge is not required to articulate reasons for departing from a standard non-parole period in a formulaic way, provided the reasoning can be discerned from the remarks on sentence taken as a whole.
  • Where a sentencing judge imposes a sentence below the standard non-parole period and expressly considers relevant subjective factors, that exercise of discretion may itself reflect sufficient engagement with the question of special circumstances, without requiring a separate formal finding.
  • No error was established merely because the sentencing judge declined to adopt a staged analytical framework for the assault proposed by the defence, particularly where that framework was found to be unrealistic on the agreed facts.
  • Under Regina v Simpson, the threshold for appellate interference with sentence requires both demonstrated error and a positive finding that a less severe sentence should have been passed; absent both, the appeal will not succeed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Regina v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- Leslie v Regina [2009] NSWCCA 203
- R v Drew [2000] NSWCCA 384
- R v Mills (2005) 154 A Crim R 40
- R v Newman [2004] NSWCCA 102
- Regina v Buddle [2005] NSWCCA 82
- Regina v Fidow [2004] NSWCCA 172
- Mulato v Regina [2006] NSWCCA 282