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Court of Criminal Appeal 23 March 2009

Wilson v R

[2009] NSWCCA 73

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Wilson v R [2009] NSWCCA 73
Court: NSW Court of Criminal Appeal
Date: 23 March 2009
Judge(s): McClellan CJ at CL, Buddin J, Rothman J

Background

The applicant pleaded guilty in the District Court to maliciously inflicting grievous bodily harm, arising from a violent incident at a hotel. While intoxicated, he punched the victim in the face while holding a schooner glass, causing a deep laceration through the victim's cheek. He then struck the victim repeatedly with a clenched fist. A separate charge of common assault, arising from an attempted punch at a bystander, was taken into account on a Form 1 (that is, considered at sentencing without a separate conviction being recorded).

The District Court sentenced the applicant to 2 years and 3 months imprisonment with a non-parole period of 12 months, to be served by way of periodic detention. The sentencing judge rejected a suspended sentence but extended what Buddin J described as the maximum leniency the circumstances permitted, including a 25 percent discount for the guilty plea and a finding of special circumstances. The applicant was also on conditional liberty at the time of the offence.

On appeal, the applicant challenged one specific aspect of the sentencing judge's reasoning: the treatment of the harm caused to the victim as an aggravating factor under the Crimes (Sentencing Procedure) Act 1999.

  • Whether the sentencing judge erred by treating the substantial injury or emotional harm suffered by the victim as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999
  • Whether substantial injury is an inherent characteristic of the offence of maliciously inflicting grievous bodily harm, such that relying on it as an aggravating factor constitutes impermissible double counting under s 21A(2)

Decision

The Court of Criminal Appeal accepted that there was some force in the applicant's argument. Buddin J expressed an inclination to accept that substantial injury, whether physical or emotional, is an inherent characteristic of an offence involving grievous bodily harm. Section 21A(2) prohibits a court from having "additional regard" to any aggravating factor that is already an element or inherent characteristic of the offence, to prevent double counting a feature that is built into the offence itself.

However, the critical question was not merely whether the sentencing judge had identified the factor, but whether he had actually given it additional weight in a way that inflated the sentence. Buddin J concluded that the sentence imposed already reflected the maximum leniency available on the facts. Given the seriousness of glassing offences, the Form 1 common assault, and the applicant's status on bail at the time, there was no persuasive basis to conclude that impermissible double counting had occurred.

The Court further noted that even if the sentencing judge had erred, s 6(3) of the Criminal Appeal Act 1912 provides that an appeal should not succeed where no different sentence was warranted in law. The Court was unanimous that no lesser sentence was appropriate on the facts.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court is prohibited from treating a factor as aggravating if it is an element or inherent characteristic of the offence, to avoid double counting.
  • The Court of Criminal Appeal indicated that substantial physical injury or emotional harm may well be an inherent characteristic of maliciously inflicting grievous bodily harm, given the nature of that offence.
  • Identifying a potentially impermissible aggravating factor does not automatically result in a successful appeal: the question is whether that factor was actually given additional weight in a way that affected the sentence imposed.
  • In dismissing the appeal, the Court applied s 6(3) of the Criminal Appeal Act 1912, confirming that an appeal against sentence will fail where no other sentence was warranted in law, even if error is assumed.
  • Glassing offences are treated as serious matters, and the presence of a Form 1 offence combined with the applicant being on conditional liberty at the time of offending were relevant considerations supporting the sentence ultimately imposed.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(c), s 21A(2)(g)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Elyard v R [2006] NSWCCA 43
- R v Youkhana [2004] NSWCCA 412
- Sayin v R [2008] NSWCCA 307