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Court of Criminal Appeal 22 September 2010

LITTLE v REGINA

[2010] NSWCCA 210

Assault & violence
CRIMINAL LAW APPEAL SENTENCE LACKING PREMEDITATION ABSENCE OF WEAPON APPEAL DISMISSED

Citation: LITTLE v REGINA [2010] NSWCCA 210
Court: New South Wales Court of Criminal Appeal
Date: 22 September 2010
Judge(s): Macfarlan JA, Simpson J, Hall J

Background

The appellant was an inmate at the minimum security section of Silverwater Correctional Centre. On 11 December 2006, minutes after being reclassified from minimum to medium security, he launched an unprovoked attack on the prison officer who had been involved in his reclassification and was escorting him to another block.

The attack was severe and sustained. The appellant spat at the officer, then punched him repeatedly until he fell unconscious. While the officer lay on the ground, the appellant continued to kick and stamp on his head and face, muttering words toward him throughout. The victim sustained catastrophic brain injury, described by a medical expert as comparable to injuries typically seen in high-speed motor vehicle accidents. The appellant also assaulted three other prison officers during and after the incident.

The appellant pleaded guilty at the District Court to four offences: causing grievous bodily harm with intent to murder (Count 1), maliciously inflicting grievous bodily harm with intent to do grievous bodily harm (Count 2), and three counts of assaulting a prison officer in execution of duty (Counts 3 to 5). He was sentenced by Ellis DCJ at the District Court at Parramatta on 5 August 2009. The appellant then sought leave to appeal against that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge erred in classifying the offence as falling within the "worst case category," given the absence of premeditation and the absence of a weapon.
  • Whether there was sufficient evidence to support the sentencing judge's findings regarding the victim's long-term prognosis, prior to an intervening cardiac event.

Decision

The Court rejected the argument that the absence of premeditation and the absence of a weapon prevented the offence from being classified in the worst case category. The sentencing judge's characterisation was assessed against the full circumstances of the offending, including the sustained and deliberate nature of the attack, the extreme violence inflicted on an unconscious and defenceless victim, and the catastrophic injuries caused.

On the long-term prognosis question, Hall J found the medical evidence clearly supported the sentencing judge's conclusion that the impact on the victim would be severe and lasting. The evidence showed the victim had sustained significant brain damage, had shown no neurological improvement while in intensive care or the Brain Injury Unit, and had been assessed for long-term rehabilitation. Hall J described the sentencing judge's characterisation of the prognosis as "bleak" as, if anything, an understatement.

Simpson J added pointed remarks on the prognosis ground, stating the submission that there was insufficient evidence to support the long-term prognosis finding was not merely speculative but "fanciful," and that the ground ought never to have been argued.

The Court found no error in the sentencing judge's approach and dismissed the appeal.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the absence of premeditation and the absence of a weapon do not, of themselves, preclude a sentencing court from classifying an offence as falling in the worst case category.
  • A classification in the "worst case category" is assessed against the totality of the offending circumstances, including the degree of violence, the vulnerability of the victim at the time of the attack, and the severity of the resulting injuries.
  • Sufficient evidence existed to support findings about a victim's long-term neurological prognosis where medical evidence documented catastrophic brain injury, absence of improvement in intensive care, and assessment for long-term rehabilitation.
  • In dismissing the appeal, the Court signalled that grounds of appeal founded on evidentiary challenges must have a proper foundation in the record; a ground characterised as "fanciful" attracted pointed criticism from Simpson J.
  • Under s 27 of the Crimes Act 1900, the standard non-parole period for mid-range offences of causing grievous bodily harm with intent to murder is 10 years, against a maximum of 25 years' imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 27, 33, 58
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Regina v Penisini [2004] NSWCCA 339
- Regina v Twala (NSWCCA, unreported, 4 November 1994)
- Regina v Westerman [2004] NSWCCA 161