AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 16 March 2011

Steven John ADAMS v R

[2011] NSWCCA 47

Assault & violence
CRIMINAL LAW SENTENCING PARITY

Citation: Steven John Adams v R [2011] NSWCCA 47
Court: NSW Court of Criminal Appeal
Date: 16 March 2011
Judges: Campbell JA, Latham J, Price J

Background

The appellant was convicted after trial on one count of maliciously wounding with intent to cause grievous bodily harm, and two counts of assault occasioning actual bodily harm. The offences arose from a violent home invasion in May 2006, in which the appellant and a co-offender entered premises wielding a baseball bat and a heavy curtain rod, then repeatedly struck the male occupant and assaulted the female occupant.

The principal wounding charge related to two specific injuries inflicted on the male victim during the main attack: a laceration to the scalp and a crushing injury to a finger. Separately, after the co-offender had left, the appellant struck the victim across the left forearm with the curtain rod, fracturing it.

At first instance in the District Court, the sentencing judge imposed a non-parole period of three years on the wounding count, with a balance of term of two years. The appellant challenged the sentence primarily on the basis that the judge had improperly relied on the fractured arm, an injury caused after and outside the principal wounding offence, when assessing the objective gravity of count 1.

  • Whether the sentencing judge erred by taking into account the victim's broken arm, an injury not inflicted during the conduct constituting the principal wounding offence, in assessing the objective gravity of that offence.
  • Whether the sentencing judge inadvertently sentenced the appellant for the wrong offence (inflicting grievous bodily harm rather than malicious wounding).
  • Whether the appellant's sentence was manifestly excessive, including whether the aggregate sentence was disproportionate having regard to the sentences imposed on co-offenders (parity ground).

Decision

The Court of Criminal Appeal accepted that the sentencing judge had fallen into error by incorporating the fractured arm into the objective gravity assessment for count 1. The broken arm was caused by a separate act, committed after the co-offender had already left the premises, and was not part of the conduct giving rise to the wounding charge. Relying on that injury inflated the seriousness of the principal offence.

The Court drew on the reasoning in McCullough v R [2009] NSWCCA 94, affirming that a sentencing court may not treat injuries inflicted in a separate act as part of the objective circumstances of the charged offence. The proper approach is to confine the objective gravity assessment to the conduct and consequences that constitute the offence itself.

On parity, the Court observed that the sentencing judge had in fact been lenient toward the co-offender Mr Davies, whose sentence did not adequately reflect his assault on a different victim. Nonetheless, the error in assessing objective gravity required resentencing.

Given the established error and parity considerations, the Court also found special circumstances warranting a departure from the statutory proportion between non-parole period and total sentence. Material received on resentencing showed the appellant had made significant progress in anger management programmes and was assessed as well-behaved and a good prospect for rehabilitation.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed by Finnane DCJ on 27 March 2009 quashed.
  • Count 1: non-parole period of 2 years and 6 months (from 27 September 2009, expiring 26 March 2012), balance of term 18 months (expiring 26 September 2013).
  • Count 2: non-parole period of 12 months (from 27 June 2009), balance of term 6 months.
  • Count 3: non-parole period of 12 months (from 27 March 2009), balance of term 6 months.
  • Appellant eligible for release to parole on 27 March 2012.

Key Takeaways

  • A sentencing court assessing objective gravity for a wounding offence must confine that assessment to the injuries and conduct constituting the charged offence; injuries caused by a separate act, even against the same victim on the same occasion, fall outside that assessment.
  • Where a co-offender's sentence was itself unduly lenient, that leniency does not automatically entitle the applicant to a corresponding reduction, though it remains a relevant factor in the parity analysis.
  • The Court of Criminal Appeal confirmed that error in the objective gravity assessment will enliven resentencing jurisdiction under s 6(3) of the Criminal Appeal Act 1912, even where the resulting sentence was not manifestly excessive on its face.
  • Post-sentence rehabilitation evidence, including completion of anger management programmes and positive custodial conduct reports, can support a finding of special circumstances justifying adjustment of the non-parole to balance-of-term ratio.
  • Under the form of s 33 of the Crimes Act 1900 in force at the time of the offence (before the February 2008 drafting amendment), malicious wounding with intent and maliciously inflicting grievous bodily harm with intent were a single offence; the Court noted the importance of identifying which conduct was actually charged when assessing gravity.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33 (as in force prior to 15 February 2008, and as amended)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Haoui v R [2008] NSWCCA 209
- McCullough v R [2009] NSWCCA 94
- Wilkins v R [2009] NSWCCA 222
- Bourke v R [2010] NSWCCA 22