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Court of Criminal Appeal 8 December 2009

Connelly v R

[2009] NSWCCA 293

Assault & violence
CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE HELD NO ERROR NO POINT OF PRINCIPLE

Citation: Connelly v R [2009] NSWCCA 293
Court: NSW Court of Criminal Appeal
Date: 8 December 2009
Judge(s): McClellan CJ at CL, Price J, R A Hulme J

Background

The applicant was convicted of maliciously inflicting grievous bodily harm with intent, an offence carrying a maximum penalty of 25 years' imprisonment and a standard non-parole period of seven years under the Crimes Act 1900. The offence arose from a street confrontation in December 2007 that began when the victim approached the applicant's home to recover a debt of less than $40.

After an initial altercation in which the applicant pushed the victim and tipped over a pram containing an infant, the victim threw a bottle at the applicant. Approximately five minutes later, the applicant drove to intercept the victim and his partner, armed himself with an implement resembling a short baseball bat, and struck the victim on the left side of the head. The victim lost an eye and suffered extensive facial fractures requiring reconstructive surgery, along with lasting psychological harm.

The trial judge in the Newcastle District Court sentenced the applicant to 5 years 11 months 12 days' imprisonment with a non-parole period of 3 years 5 months 16 days. The applicant sought leave to appeal on the sole ground that the sentencing judge erred by failing to treat the victim's conduct as provocation warranting mitigation.

  • Whether the sentencing judge erred by failing to take into account that the applicant was provoked by the victim when imposing the sentence for the primary offence of maliciously inflicting grievous bodily harm with intent.

Decision

R A Hulme J, with whom McClellan CJ at CL and Price J agreed, dismissed the appeal. The Court found no error in the sentencing judge's approach to the question of provocation or to the exercise of her sentencing discretion more broadly.

The Court applied the principle stated by Spigelman CJ in Regina v White (1998) that not every explanation of conduct constitutes mitigation. For motive, including conduct that might be characterised as provocation, to operate as a mitigating factor, it must bear upon the offender's moral culpability. Relevant examples include mental, emotional, or medical problems and impulsive conduct.

On the facts, the sentencing judge was fully aware of the circumstances in which the offence occurred and had taken into account the applicant's significantly impaired intellectual functioning, which included an inability to control his temper and a liability to extreme outbursts of anger. Those factors reduced the objective seriousness of the offence and were already reflected in the sentence. The Court also noted that the applicant had initiated the violence by pushing the victim and tipping the pram before the victim threw the bottle.

Even had any error been established, the Court considered that no lesser sentence would have been warranted under s 6(3) of the Criminal Appeal Act 1912, describing the sentence ultimately imposed as "quite moderate" having regard to the gravity of the assault and its substantial lasting consequences for the victim.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Provocation by a victim does not automatically constitute a mitigating factor at sentencing. Under the principle confirmed in Regina v White, victim conduct operates as mitigation only where it bears directly on the offender's moral culpability.
  • Where a sentencing court has already accounted for an offender's impaired intellectual functioning, including impulsivity and poor anger regulation, as factors reducing moral culpability, it is not required to separately treat the same underlying circumstances as provocation warranting further mitigation.
  • The fact that an offender initiated the confrontation is a relevant consideration in assessing whether subsequent victim conduct can properly be characterised as provocation in the mitigatory sense.
  • In dismissing the appeal, the Court of Criminal Appeal noted that even where some sentencing error might be identified, the proviso in s 6(3) of the Criminal Appeal Act 1912 permits dismissal where no lesser sentence would have been warranted on the facts.
  • No point of principle was identified in this decision; the outcome turned on the particular facts and the application of established sentencing principles to those facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33 (maliciously inflicting grievous bodily harm with intent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A (standard non-parole periods); s 33
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- R v Chhay (1994) 72 A Crim R 1
- Regina v White, NSW Court of Criminal Appeal, 23 June 1998, unreported