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76
Court of Criminal Appeal 8 April 2009

Ciaron McCULLOUGH v R

[2009] NSWCCA 94

Also reported as (2009) 194 A Crim R 439
Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCES WHETHER FINDING APPROPRIATE

Citation: Ciaron McCULLOUGH v R [2009] NSWCCA 94
Court: NSW Court of Criminal Appeal
Date: 8 April 2009
Judge(s): McClellan CJ at CL, Simpson J, Howie J (Howie J delivered the principal judgment; McClellan CJ at CL and Simpson J agreed)

Background

The appellant pleaded guilty in the District Court to three charges arising from two separate incidents. The first set of charges, malicious damage and common assault, stemmed from an intoxicated confrontation with his brother in September 2005. The second and more serious charge, malicious wounding, arose from a prolonged and violent attack on his 60-year-old mother in February 2007. The mother sustained a bitten finger, a fractured wrist, facial lacerations, bilateral eye bruising, and rib pain; she was hospitalised for five days.

English DCJ sentenced the appellant to a total sentence of five years and two months, with an overall minimum (non-parole) period of three years and six months. The appellant, unrepresented, challenged the sentences by letter to the Court, raising what the Court treated as three grounds of appeal.

The Court of Criminal Appeal granted leave and allowed the appeal, quashing all sentences imposed below and resentencing the appellant to a substantially reduced total.

  • Whether the District Court was correct to find the aggravating factor of gratuitous cruelty under s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999 in the circumstances of the wounding offence
  • Whether the sentencing judge had properly assessed the objective seriousness of the malicious wounding charge, including the nature of the injuries relevant to establishing "wounding"
  • Whether the maximum penalties applicable in the Local Court for the lesser charges were relevant to the District Court's sentencing exercise
  • Whether the prosecutor's conduct during the sentencing proceedings fell below the standard of objectivity required

Decision

Gratuitous cruelty. Howie J held that the gratuitous cruelty finding was not available on the facts. The aggravating factor under s 21A(2)(f) requires cruelty beyond what is inherent in the offence itself. The level of violence involved in this wounding, while serious, did not warrant a separate finding of gratuitous cruelty, particularly because the offence of malicious wounding already encompassed significant physical harm. Applying that aggravating factor had the practical effect of double-counting conduct that was already reflected in the objective seriousness of the charge.

Objective seriousness and the nature of "wounding." The Court noted that, for a wounding charge, the relevant injury establishing the offence was the bite wound to the victim's finger. Although the broader injuries were significant, the prosecutor's submission that the offence fell "very much towards the top" of the range was described as insupportable. The Court reduced the non-parole period for the malicious wounding charge from 30 months to 20 months accordingly.

Local Court maximum penalties. The Court found that the applicable maximum penalties in the Local Court for the assault and malicious damage charges were directly relevant to sentencing, because those penalties defined the ceiling for those offences in that jurisdiction and informed the appropriate range. The prosecutor had failed to draw those limits to the sentencing judge's attention and instead suggested the offences were near the middle of the District Court range, which was a significant misdirection.

Prosecutor's conduct. Howie J was critical of the overall conduct of the prosecutor at first instance, finding that the submissions were "unduly inflammatory and irresponsible." In addition to urging the erroneous gratuitous cruelty finding, the prosecutor submitted that the victim was vulnerable because she had just returned from a funeral and that the appellant, as her son, occupied a position of trust. The Court found neither submission was tenable. The prosecutor's role requires objectivity, and a failure to maintain it can actively cause appealable error even if the departure is innocent rather than deliberate.

Orders Made

  • Leave to appeal granted and the appeal allowed
  • All sentences imposed in the District Court quashed
  • On count 3 (common assault): imprisonment for 3 months, from 1 January 2007 to 31 March 2007
  • On count 2 and the Form 1 matter (malicious damage and resist arrest): imprisonment for 9 months, from 1 January 2007 to 30 September 2007
  • On the malicious wounding charge: non-parole period of 20 months from 1 September 2007, with a balance of term of 12 months; release to parole on 30 April 2009, on condition that the appellant undertake alcohol and anger management courses as directed by the Probation Service

Key Takeaways

  • The aggravating factor of gratuitous cruelty under s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999 is not established merely because an assault is serious or prolonged; the cruelty must be beyond what is inherent in the offence charged, and applying it where the conduct is already captured by the objective gravity of the charge risks impermissible double-counting.
  • On a charge of malicious wounding, the injury that legally constitutes the "wound" is the relevant starting point for assessing objective seriousness, even where the offending involved additional injuries; other injuries remain relevant to the overall sentencing exercise but do not automatically elevate the offence to the top of the range.
  • Where the Local Court's maximum penalty for an offence is lower than a District Court's general sentencing ceiling, that lower maximum directly constrains the sentencing range and must be brought to the sentencing judge's attention.
  • A prosecutor appearing at sentence carries a duty of objectivity; submissions that are inflammatory, factually untenable, or legally erroneous do not assist the court and can generate appealable error even where no bad faith is involved.
  • The Court of Criminal Appeal confirmed that submitting, without proper basis, that a victim was "vulnerable" by reason of attendance at a funeral, or that a familial relationship automatically constitutes a position of trust, falls short of the standard required of a Crown prosecutor in sentencing proceedings.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(2)(f), 32
- Crimes Act 1900 (NSW), ss 35(1), 35(4), 59, 61, 112(2), 195
- Criminal Procedure Act 1986 (NSW), ss 166, 260, 268

Cases:
- R v Crombie [1999] NSWCCA 297
- R v El Masri [2005] NSWCCA 167
- R v Palmer [2005] NSWCCA 349
- TMTW v R [2008] NSWCCA 50
- R v Olsen [2005] NSWCCA 243
- R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94
- The Queen v De Simoni (1981) 147 CLR 383