Citation: Campbell-Stephen v Regina [2010] NSWCCA 204
Court: New South Wales Court of Criminal Appeal
Date: 14 September 2010
Judge(s): Basten JA, Hall J, Latham J
Background
The appellant pleaded guilty in the Local Court to recklessly inflicting grievous bodily harm under s 35(2) of the Crimes Act 1900. The offence occurred after midnight near a hotel car park at Frenchs Forest, where a confrontation began when hotel staff asked a group of patrons to leave. A member of that group, Mr Hodges, later assaulted the appellant's father and took his spectacles.
The appellant chased Mr Hodges but could not catch him. He then returned and punched the victim, a separate member of the group who had played no direct part in the assault on the appellant's father. That single punch caused the victim to fall and strike his head on the bitumen, resulting in multiple skull fractures, brain haemorrhages, and the need for significant neurosurgery. The victim suffered lasting neurological effects.
The District Court sentenced the appellant to 3 years and 6 months imprisonment with a non-parole period of 2 years. The appellant sought leave to appeal that sentence to the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge erred by finding that provocation came from a third party rather than the victim, and therefore excluding it from the statutory mitigating factor in s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999
- Whether the sentencing judge failed to give proper weight to provocation generally, even if it did not satisfy the specific statutory criterion
- Whether the judge erred in characterising the offence as falling within the mid-range of objective seriousness
- Whether the sentence was manifestly excessive
Decision
On Grounds 1 and 2, the Court accepted that s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 applies only where the offender was provoked by the victim. The evidence did not support the proposition that the victim was part of a unified group acting in concert with Mr Hodges at the time of the assault. Critically, the appellant himself gave evidence that he did not witness the assault on his father. The Court found no error in the sentencing judge's conclusion that the provocation came from Mr Hodges, not from the victim, and that s 21A(3)(c) therefore did not apply.
Even setting aside the statutory mitigating factor, the Court found no error in the weight the sentencing judge gave to provocation more generally. Citing Regina v Mitchell & Gallagher (2007) 11 A Crim R 94, the Court noted that a grievance about the conduct of another, however justified, does not operate as a licence to commit a violent offence against a person who was not responsible for that conduct. The mitigating value of such a grievance is limited.
On Ground 3, the Court observed that because no error was established on Grounds 1 and 2, the challenge to the mid-range characterisation of the offence also fell away. The appellant had inflicted a single blow of considerable force to the face of a man who had not provoked him, producing catastrophic injuries. The sentencing judge's assessment of objective seriousness was well within range.
On Ground 4, the Court found the sentence was neither unreasonable nor plainly unjust. It fell well within the range of a sound sentencing discretion, having regard to the nature of the offence, the gravity of harm caused, and the Form 1 matter involving a separate victim.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999, provocation operates as a statutory mitigating factor only where the offender was provoked by the victim of the offence, not by a third party.
- The Court of Criminal Appeal confirmed that even where indirect provocation exists, it does not automatically attract significant mitigating weight; a grievance with the conduct of one person cannot justify violence directed at another.
- Where Grounds 1 and 2 concerning provocation fail, a connected ground challenging the objective seriousness characterisation of the offence will ordinarily also fail.
- In dismissing the appeal, the Court reinforced that a sentencing judge is entitled to have regard to the degree of harm actually suffered by the victim, particularly where the infliction of harm was intentional, even if the full extent of the injuries was not specifically intended.
- No error was established across any of the four grounds, and the sentence of 3 years and 6 months with a 2-year non-parole period was held to fall comfortably within the proper sentencing range.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 35(2) (recklessly inflicting grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(1) and s 21A(3)(c) (mitigating factors in sentencing)
Cases
- Regina v Kenney [1983] 2 VR 470
- Regina v Mitchell & Gallagher (2007) NSWCCA 296; (2007) 11 A Crim R 94