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59
Court of Criminal Appeal 4 February 2010

BUTTERS, Jarrod Dean v R

[2010] NSWCCA 1

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE RECKLESSLY CAUSE GRIEVOUS BODILY HARM

Citation: BUTTERS, Jarrod Dean v R [2010] NSWCCA 1
Court: NSW Court of Criminal Appeal
Date: 4 February 2010
Judge(s): McClellan CJ at CL; Fullerton J; McCallum J

Background

The appellant pleaded guilty in the Local Court to recklessly inflicting grievous bodily harm contrary to s 35(2) of the Crimes Act 1900. He was sentenced in the District Court at Albury on 6 November 2008 and was granted leave to appeal to the Court of Criminal Appeal.

The offence arose from an incident at a hotel in Albury in February 2008. The appellant, aged 21 and heavily intoxicated, punched a 19-year-old victim while holding a glass, shattering it against the victim's face. He then continued to punch the victim repeatedly until security intervened. The victim ultimately lost his left eye and sustained permanent facial scarring.

In sentencing, the District Court judge allowed a 25 per cent discount for the guilty plea, found special circumstances owing to the appellant's youth, clean record, and first-time imprisonment, and imposed a total term of 4 years and 6 months comprising a non-parole period of 3 years.

  • Whether the sentencing judge erred in his treatment of the evidence of the appellant's remorse as a mitigating factor
  • Whether the sentence was manifestly excessive, on the basis that the offence should not have been characterised as above the mid-range of objective seriousness

Decision

Remorse ground: The Court examined the pre-sentence report, the forensic psychiatrist's report, the drug and alcohol counsellor's report, and the character references. Fullerton J found that, while the material disclosed expressions of shame, guilt, and regret, the character references were predominantly directed to prior good character and rehabilitation rather than remorse. The sentencing judge's characterisation of the evidence of remorse as qualified, and his decision to afford it limited weight, disclosed no error.

Objective seriousness ground: The appellant argued that the sentencing judge had no proper basis to find that the glass was used as a weapon under s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, given the appellant had no memory of the incident. The Court rejected this. At the sentence hearing, the appellant's own counsel had conceded that the offence was aggravated both by the extent of harm caused and by the use of a weapon. That concession was properly made, given the agreed facts and the nature of the plea. A guilty plea to recklessly inflicting grievous bodily harm under s 35(2) carries with it an admission that the appellant deliberately swung the punch with foresight that injury of that kind might result.

The Court also noted that, even absent the concession, the agreed facts provided a sufficient basis for the weapon-use aggravating factor, consistent with the Court's earlier approach in Spooner v R. The continued punching after the glass broke further supported the concession as properly made.

Both grounds of appeal failed. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A plea of guilty to recklessly inflicting grievous bodily harm under s 35(2) of the Crimes Act 1900 carries with it an admission that the offender deliberately acted with foresight that serious injury of the kind that resulted might occur.
  • Concessions made by defence counsel at a sentence hearing regarding aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 are binding on appeal, and their proper basis will be examined by the appellate court on the agreed facts.
  • Where evidence of remorse is qualified or predominantly embedded in character and rehabilitation material, a sentencing judge is entitled to afford it limited weight without error.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the absence of the offender's personal memory of the incident does not preclude a finding that the offence involved use of a weapon, particularly where the facts support that characterisation and counsel conceded the point below.
  • No error was established in the sentencing judge's characterisation of the offence as above the mid-range of objective seriousness, given the permanent and devastating nature of the victim's injuries and the use of a glass as a weapon.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2)
- Crimes Amendment Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(c), 21A(2)(g), 30A, 44

Cases
- Jones v R [2009] NSWCCA 169
- Pengilley v R [2006] NSWCCA 163
- R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
- R v Thomas [2007] NSWCCA 269
- Spooner v R [2009] NSWCCA 247
- TS v R [2007] NSWCCA 194