Bourke v R

Citation: Bourke v R [2010] NSWCCA 22
Court: New South Wales Court of Criminal Appeal
Date: 18 February 2010
Judge(s): McClellan CJ at CL; Price J; RA Hulme J

Background

The applicant pleaded guilty to malicious wounding with intent to inflict grievous bodily harm under s 33(1)(a) of the Crimes Act 1900, carrying a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. The offence occurred in the early hours of 29 April 2006, when the applicant returned to a birthday party armed with an axe and a pole, and attacked the victim without apparent motive. The victim sustained multiple serious injuries including skull fractures, a subdural haemorrhage, and lasting damage to his fingers and forehead.

The applicant had a significant personal history, including a traumatic childhood, ADHD diagnosed from age seven, low average intelligence, a history of depression and polysubstance abuse, and mild traumatic brain injury from motor vehicle accidents. Shortly before the offence, he had consulted his general practitioner about anxiety, depression, and suicidal ideation, and had been prescribed Diazepam, which he combined with alcohol on the night in question.

The sentencing judge in the District Court imposed a non-parole period of 8 years with a further term of 4 years, applying a 15% discount for the guilty plea and finding special circumstances given the applicant's first experience of full-time custody. The applicant sought leave to appeal that sentence.

Legal Issues

• Whether the sentencing judge erred in assessing the objective seriousness of the offence
• Whether the sentencing judge properly took the applicant's mental illness into account when imposing sentence
• Whether the sentence was manifestly excessive
• Whether the De Simoni principle (which prohibits sentencing an offender for a more serious offence than the one charged) was breached by taking into account injuries beyond the wound itself

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds. On the question of objective seriousness, the Court found no error in the sentencing judge's assessment. The attack was unprovoked, involved weapons, was sustained, and the victim suffered grave and lasting injuries.

On the mental illness ground, the Court was satisfied that the sentencing judge had properly considered the applicant's mental health history, his diagnosed conditions, and the combined effect of his medication and alcohol consumption. The applicant's mental state was treated as providing an explanation for the offence, but it did not displace the significant weight that the objective gravity of the conduct attracted.

The most detailed reasoning addressed the De Simoni point. The Court distinguished the present case from McCullough v R, where injuries constituting grievous bodily harm were entirely separate from the wound the subject of the charge. Here, the wound and the broader injuries were closely connected, inflicted in the course of the same assault. McClellan CJ at CL reasoned that s 33 creates a single offence, not two distinct offences as the former s 35(1) did, and that artificially isolating the wounding from the surrounding harm would produce an unrealistic assessment of gravity. At the very least, considering the grievous bodily harm inflicted was necessary to evaluate the specific intent element that distinguishes s 33 from s 35 and accounts for the substantial difference in maximum penalties.

RA Hulme J agreed with the orders and expressed his own reasons on the De Simoni point, endorsing the view that the close factual connection between the wound and the other injuries distinguished McCullough and that it was not impermissible in these circumstances to take account of the full extent of harm inflicted.

Orders Made

• Leave to appeal granted
• Appeal dismissed

Key Takeaways

• The Court of Criminal Appeal confirmed that where a wound and accompanying injuries arise from the same continuous assault under s 33 of the Crimes Act 1900, a sentencing judge may consider all injuries inflicted, without necessarily breaching the De Simoni principle.
• A critical distinction exists between s 33 (one offence) and the former s 35(1) (two distinct offences): the structural difference affects whether consideration of grievous bodily harm alongside wounding amounts to impermissible sentencing for an uncharged offence.
• In dismissing the appeal, the Court affirmed that the extent of harm caused by the blows inflicted can serve as a legitimate indicator of the degree to which the offender harboured the requisite intention to inflict grievous bodily harm, which is the element elevating s 33 above s 35.
• Mental illness and medication will be considered in mitigation but do not automatically reduce the objective gravity of a violent and sustained unprovoked attack, particularly where serious and lasting physical harm results.
• McCullough v R remains relevant but is confined to cases where the injuries constituting grievous bodily harm are entirely separate and distinct from the wound the subject of the charge, rather than intertwined with it.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 35
- Crimes Amendment Act 2007 (NSW)
- Crime (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v De Simoni (1981) 147 CLR 383
- McCullough v R [2009] NSWCCA 94
- Wilkins v R [2009] NSWCCA 222
- R v Engert (1995) 84 A Crim R 67
- R v Henry (1999) 46 NSWLR 346
- R v Way (2004) 60 NSWLR 196
- R v George (2004) 149 A Crim R 38
- Barton v R [2009] NSWCCA 285
- Jione v R [2007] NSWCCA 170
- Kennedy v R (2008) 181 A Crim R 185
- McIntyre v R [2009] NSWCCA 305
- Mulato v R [2006] NSWCCA 282
- R v Lawless (unreported, 24 June 1994, NSWCCA)
- R v Rosenberger (1994) 76 A Crim R 1
- R v Shi [2004] NSWCCA 135
- SBF v R [2009] NSWCCA 231
- SK v R [2009] NSWCCA 21
- Sproates v R [2009] NSWCCA 29
- Vragovic v R [2007] NSWCCA 46