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17
Court of Criminal Appeal 3 March 2009

R v Wright

[2009] NSWCCA 3

Assault & violence

Citation: R v Wright [2009] NSWCCA 3
Court: Court of Criminal Appeal, New South Wales
Date: 3 March 2009
Judge(s): McClellan CJ at CL, James J, Adams J

Background

The respondent pleaded guilty in the District Court to maliciously wounding with intent to cause grievous bodily harm, arising from a violent group attack on a man outside a Newtown hotel in the early hours of 24 September 2006. The attack followed an altercation inside the hotel and involved multiple men stomping and kicking the victim as he lay unconscious on the footpath. The victim sustained serious head injuries including fractures to both eye sockets and other facial bones, a sub-arachnoid haemorrhage, and a shallow sub-dural haemorrhage, and required surgery during his hospitalisation.

The respondent was found to have stomped on or kicked the victim's head two to four times. The sentencing judge at first instance, Sweeney DCJ, imposed a head sentence of four and a half years with a non-parole period of two years and six months, commencing April 2008. The Crown appealed on the ground that the sentence was manifestly inadequate.

  • Whether the sentencing judge erred in finding the objective seriousness of the offence fell at the middle of the range, rather than above it
  • Whether the sentencing judge erred in allowing a full 25 per cent discount for the guilty plea, given it was not entered at the first reasonable opportunity
  • Whether the sentence was manifestly inadequate when measured against the standard non-parole period of seven years under the Crimes Act
  • Whether, even if any error were established, the Court of Criminal Appeal should exercise its discretion to decline to intervene

Decision

James J (with whom McClellan CJ at CL and Adams J agreed) rejected the Crown's submission that the sentencing judge had erred in placing the objective seriousness at the middle rather than above the middle of the range. While the offending was undoubtedly serious, the sentencing judge was entitled to have regard to the respondent's particular role within the joint criminal enterprise. The respondent had been struck in the head by a bottle during the melee before participating in the final attack on the victim.

On the guilty plea discount, James J acknowledged some force in the Crown's submission that a full 25 per cent discount may not have been warranted, since the plea was not entered at the first reasonable opportunity. However, the plea was entered at the committal stage, and any correction to the discount would amount to mere "tinkering" rather than correcting a material error.

James J accepted that the sentence was undoubtedly lenient and "verged on being manifestly inadequate," given the seriousness of the offending and the recognised need for general deterrence in cases of group violence by intoxicated young men. Ultimately, however, the sentence was found to be just within the range of permissible outcomes. The Court also noted that, even if the sentence had fallen marginally outside that range, it would have exercised its discretion to decline to intervene, having regard to the respondent's subjective circumstances.

McClellan CJ at CL added that the sentence would be of little or no utility as a reference point for other judges sentencing offenders for similar offences.

Orders Made

  • Crown appeal against sentence dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence can be recognised as lenient, and even as verging on manifestly inadequate, without that being sufficient to warrant appellate intervention.
  • A full 25 per cent discount for a guilty plea may not be warranted where the plea was not entered at the first reasonable opportunity, although a discount close to that level may still be appropriate for a committal-stage plea.
  • Where a defendant is sentenced on the basis of joint criminal enterprise, the sentencing court retains a legitimate discretion to consider that defendant's particular role and circumstances within the enterprise when assessing objective seriousness.
  • The Court explicitly noted that the sentence in this case would carry little utility as a precedent or comparator for future sentencing of similar offences.
  • Under s 33 of the Crimes Act, malicious wounding with intent to cause grievous bodily harm carries a maximum of 25 years imprisonment and a standard non-parole period of seven years, against which significant departures require sufficient justification.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 33 (malicious wounding with intent to cause grievous bodily harm)

Cases
- GAS v The Queen (2004) 217 CLR 198
- R v Cotter & Ors [2003] NSWCCA 273
- R v Mitchell, R v Gallagher [2007] NSWCCA 296
- R v Mulato [2006] NSWCCA 282
- R v Wall [2002] NSWCCA 42
- R v Anderson [2008] NSWCCA 211