Citation: R v Farrawell-Smith [2010] NSWCCA 144
Court: NSW Court of Criminal Appeal
Date: 14 July 2010
Judge(s): McClellan CJ at CL, Hislop J, Barr AJ
Background
The respondent pleaded guilty in the District Court to two offences arising from a group assault at Appin in September 2008. Acting in company with another person, he recklessly caused grievous bodily harm to one victim (who suffered a fractured eye socket and facial lacerations requiring 12 stitches) and recklessly wounded a second victim (who suffered a deep leg laceration exposing fatty tissue). The assault was carried out with a shovel wielded by a co-offender, while the respondent had gone to the scene intending to assist a friend in a fight.
The sentencing judge in the District Court imposed suspended sentences: 20 months for the grievous bodily harm count and 12 months for the wounding count, both under section 12 of the Crimes (Sentencing Procedure) Act 1999. The Crown appealed, contending the sentences were manifestly inadequate.
At the time of the appeal, some months had passed since sentencing. Evidence before the Court of Criminal Appeal showed the respondent had ceased drinking, maintained employment, cared for a young daughter, co-operated with authorities by giving evidence against his co-accused (attracting retaliatory threats), and demonstrated what the Court described as a genuine and remarkable rehabilitation.
Legal Issues
- Whether the suspended sentences imposed in the District Court were manifestly inadequate for offences of recklessly causing grievous bodily harm and reckless wounding in company
- Whether the Court of Criminal Appeal should, in its discretion, intervene even if error in the original sentencing was established
- What weight should be given to post-sentence rehabilitation and changed personal circumstances when a Crown appeal is brought
Decision
Barr AJ (with whom McClellan CJ at CL and Hislop J agreed) acknowledged that the offences were serious. The maximum penalties were 14 years for the grievous bodily harm count and 10 years for the wounding count. The respondent had a prior criminal history, including a bond current at the time of the offences and a failure to appear in court, both of which were aggravating features. The sentencing judge had been aware of these matters and of the objective gravity of the assault.
The Court noted, however, that the sentencing judge had identified genuine prospects of rehabilitation at the time of sentencing. By the time of the appeal, those prospects had been substantially realised. The respondent had stopped drinking, cut ties with former associates, was providing for his family, and had honoured his undertaking to give evidence against his co-accused at personal risk to himself.
Barr AJ expressed the view that, even accepting the sentences were at the lower end and potentially open to challenge, the discretion to intervene in a Crown appeal must be exercised with care. Disrupting an advanced rehabilitation process would, in his Honour's view, be counterproductive. The progress made since sentencing was described as quite remarkable for a young man who had previously led a dissolute life.
On that basis, the Court declined to intervene and dismissed the appeal in the exercise of its discretion, allowing the suspended sentences to stand.
Orders Made
- The appeal is dismissed.
Key Takeaways
- In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that even where a sentence may be at the lower end of the available range, the appellate court retains a discretion to decline to intervene where doing so would disrupt genuine and demonstrable rehabilitation.
- Post-sentence conduct and changed personal circumstances are relevant considerations in a Crown appeal, particularly where rehabilitation is advanced by the time the matter reaches the appellate court.
- Where a respondent has honoured co-operation undertakings (including giving evidence against a co-accused at personal risk), this weighs meaningfully against the exercise of discretion to resentence.
- Aggravating features under the Crimes (Sentencing Procedure) Act 1999, such as offending while on a current bond or after failing to appear, do not automatically preclude a suspended sentence where other factors favour leniency.
- The Court's approach reflects the established principle that Crown appeals are not brought simply to substitute a harsher sentence, and that the interests of rehabilitation can, in appropriate cases, outweigh the sentencing court's potential understatement of objective seriousness.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35(1), 35(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 12, 23(3)
Cases:
- R v Sukkar [2006] NSWCCA 92
- R v Mostyn [2004] NSWCCA 97
- R v S (2000) 111 A Crim R 225
- Dinsdale v The Queen (2000) 202 CLR 321
- R v JCE (2001) 129 A Crim R 18
- R v Zamagias [2002] NSWCCA 17
- R v Woods [2009] NSWCCA 55
- Smith v R [2009] NSWCCA 17
- R v Knight [2010] NSWCCA 51
- R v Biuvanua [2007] NSWCCA 283
- R v McEvoy [2010] NSWCCA 110