Citation: R v Stunden [2011] NSWCCA 8
Court: Court of Criminal Appeal, NSW
Date: 11 February 2011
Judges: Simpson J, Blanch J, Garling J
Background
The respondent, a young man aged 19 at the time, pleaded guilty to causing grievous bodily harm with intent under s 33(1)(b) of the Crimes Act 1900 and to larceny, arising from an assault on a 15-year-old victim near Jannali High School in August 2009. The respondent had driven to the school after receiving a phone call taunting him about his ex-partner's new relationship with the victim. A fight ensued in the adjacent carpark, during which the respondent struck and kicked the victim repeatedly, stealing his mobile phone and calling the ex-partner to say "go and have a look at your boyfriend now."
The victim suffered severe facial injuries, including fractures to the eye socket and sinus, and has been left effectively blind in his right eye. The respondent sustained a hand wound during the altercation.
At first instance, Judge Finnane in the District Court sentenced the respondent to 3 years with a 2-year non-parole period, to be served by periodic detention. The Crown appealed, contending the sentence was manifestly inadequate and that several errors of principle had been made.
Legal Issues
- Whether the sentencing judge erred in finding the respondent was provoked by the victim, as a mitigating circumstance under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999
- Whether the sentencing judge failed to give adequate weight to personal and general deterrence
- Whether the sentencing judge erred in not finding special circumstances to justify departing from the statutory non-parole period ratio
- Whether the sentence was manifestly inadequate
- Whether it was appropriate for the sentence to be served by periodic detention
Decision
The Court of Criminal Appeal allowed the Crown appeal and resentenced the respondent to full-time imprisonment. The majority (Garling J, with Blanch J agreeing) found that the original sentence was manifestly inadequate given the serious and permanent nature of the injuries inflicted on a young victim, the respondent's prior record, and the need for both personal and general deterrence.
On the provocation finding, the judges took different approaches. Garling J treated the sentencing judge's reference to the respondent being "provoked by days of taunting" as a finding of mitigating provocation under s 21A(3)(c), but held it was not sufficiently supported by the evidence. Simpson J disagreed with that characterisation, reading the remark as a factual observation about motivation rather than a formal mitigating finding. Simpson J also noted the reference was heavily qualified ("no doubt to some extent") and in any event concluded that the severity of the consequences required full-time custody regardless of how the provocation comment was characterised.
Garling J assessed the appropriate starting point for sentence at 6 years, reduced by 25 per cent for the early guilty plea to arrive at 4 years and 6 months. He found special circumstances warranted reducing the statutory non-parole period ratio: the respondent was facing his first period of full-time imprisonment, was relatively young, and suffered from stress and anxiety that would make incarceration particularly burdensome. The non-parole period was accordingly fixed at 2 years and 6 months, with a balance of 2 years.
Orders Made
- Crown appeal allowed
- Sentence imposed in the District Court on 27 August 2010 for the s 33(1)(b) offence set aside
- Respondent sentenced to a non-parole period of 2 years and 6 months, commencing 3 September 2010, with a balance of sentence of 2 years (total sentence concluding 2 March 2015)
- First date of eligibility for release to parole: 2 March 2013
Key Takeaways
- A sentence of periodic detention for a s 33(1)(b) grievous bodily harm offence resulting in permanent blindness was held to be manifestly inadequate, warranting intervention on Crown appeal.
- Where a sentencing judge refers to provocation in the course of assessing objective gravity, the Court of Criminal Appeal may disagree about whether that amounts to a formal mitigating finding under s 21A(3)(c), as illustrated by the divergence between Simpson J and Garling J in this case.
- Under s 21A of the Crimes (Sentencing Procedure) Act 1999, a mitigating finding of provocation must be properly supported by the evidence; the Court found the evidentiary basis for "days of taunting" was very limited.
- Special circumstances justifying a departure from the statutory non-parole period ratio in s 44 of the Crimes (Sentencing Procedure) Act 1999 may be established where an offender is young, facing their first full-time custodial sentence, and has demonstrated genuine rehabilitative progress.
- In Crown appeals against sentence, the Court applies the principle from House v The King (1936) 55 CLR 49, intervening only where error of principle or manifest inadequacy is established, but will resentence afresh once intervention is warranted.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44; Part 4, Div 1A
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Appeal and Review) Act 2001 (NSW)
- Evidence Act 1995 (NSW)
Cases
- House v The King (1936) 55 CLR 49
- R v Way (2004) 60 NSWLR 168
- R v AJP [2004] NSWCCA 434
- R v Davies [2004] NSWCCA 319
- Douar v R (2005) 159 A Crim R 154
- Mulato v R [2006] NSWCCA 282
- R v AS [2006] NSWCCA 309
- R v Burgess [2006] NSWCCA 319
- Mirza v R [2007] NSWCCA 248
- R v Knight; R v Vivanua (2007) 176 A Crim R 338
- R v Mitchell; R v Gallagher (2007) 177 A Crim R 94
- Director of Public Prosecutions (NSW) v Lombard [2008] NSWCCA 110
- R v Lombard (2008) 184 A Crim R 565
- R v Cheh [2009] NSWCCA 134
- R v Hamieh [2010] NSWCCA 189
- R v JW [2010] NSWCCA 49
- R v McEvoy [2010] NSWCCA 110
- R v Hallocoglu (1992) 29 NSWLR 67