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Court of Criminal Appeal 21 April 2011

AI v R; R v SB and AI

[2011] NSWCCA 95

Assault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION UNREASONABLE VERDICT CROWN APPEALS AGAINST SENTENCES RECKLESS WOUNDING WHETHER SENTENCES MANIFESTLY INADEQUATE

Citation: AI v R; R v SB and AI [2011] NSWCCA 95
Court: Court of Criminal Appeal, New South Wales
Date: 21 April 2011
Judges: Hodgson JA; Adams J; Hall J

Background

Three co-accused (referred to as AI, JB, and SB) were jointly tried in the District Court over a violent incident at Rockdale bus interchange on 20 March 2009. The victim suffered serious stab wounds to his chest, arm, and buttock, losing four to five litres of blood. The stabbing was carried out by SB, while AI drew a knife on another bystander and later kicked the victim while he lay on the ground. CCTV footage of the incident was in evidence.

The three co-accused were charged with wounding with intent to cause grievous bodily harm (under s 33(1)(a) of the Crimes Act 1900, maximum 25 years) and, in the alternative, reckless wounding while in company (under s 35(3), maximum 10 years). AI was 17 at the time, SB was 18, and JB was 15.

The jury acquitted JB on both counts. It convicted SB on the more serious count (wounding with intent) and acquitted AI of that count, finding AI guilty only of the alternative reckless wounding charge. AI appealed his conviction, and the Crown appealed the sentences imposed on both AI and SB.

  • Whether AI's conviction for reckless wounding was unreasonable, having regard to the totality of the evidence and the verdicts returned against the co-accused
  • Whether the jury's verdicts as between AI and his co-accused were legally inconsistent
  • Whether the sentencing judge erred in assessing the objective seriousness of the offences committed by SB and AI
  • Whether the sentences imposed on SB and AI were manifestly inadequate
  • Whether the Court should exercise its discretion to intervene in AI's sentence despite identifying error, given that AI had already been released on parole

Decision

AI's conviction appeal: The Court found AI's conviction for reckless wounding was reasonably open to the jury. The Crown case rested on joint criminal enterprise: AI instigated the confrontation, drew a knife, and participated in the assault. The jury could reasonably have found that AI appreciated stabbing of the victim was a possible outcome. Crucially, the Court concluded the verdicts were not legally inconsistent. The acquittal of JB could be explained by the jury accepting aspects of JB's defence, and AI's acquittal on the more serious count (requiring intent) was consistent with a finding of recklessness rather than intent.

SB's sentence appeal: The Court found the sentencing judge had erred in characterising the objective seriousness of SB's offending as below the middle range. Although SB acted to free his brother from the victim's grip, the stabbing was repeated and life-threatening. The Court identified that error, and found the sentence imposed on SB was manifestly inadequate. It resentenced SB accordingly. (Note: the full resentencing details for SB appear in the section of the judgment not reproduced in full here.)

AI's sentence appeal: The Court also identified error in the sentencing judge's assessment of AI's offending as below the middle range. AI's conduct was characterised as wholly aggressive: he instigated the confrontation, wielded a knife, kicked the victim while he was on the ground, and committed the offence while on parole for a prior offence of violence. The Court considered a non-parole period of two years with a further term of two years would have represented the lowest appropriate sentence. Despite identifying that error, however, the Court declined to intervene in the exercise of its discretion because AI had already been released from custody and was on parole. The Court noted his youth, disadvantaged background, and reasonable prospects of rehabilitation.

Orders Made

  • AI's conviction appeal: dismissed
  • Crown appeal against AI's sentence: dismissed (error found but discretion exercised against intervention)
  • Crown appeal against SB's sentence: dismissed

Key Takeaways

  • Verdicts among co-accused in a joint criminal enterprise trial are not necessarily inconsistent merely because juries return different outcomes for each accused. The Court confirmed that differing verdicts can be explained by the jury accepting different aspects of each co-accused's individual defence.

  • A conviction for reckless wounding based on joint criminal enterprise requires the prosecution to prove the accused appreciated that wounding of the victim was a possible consequence of the enterprise. The jury's verdict against AI satisfied this standard on the evidence, even though AI did not personally inflict the stab wounds.

  • Under the Crown appeal jurisdiction, identifying sentencing error does not automatically result in intervention. Even where a sentence is found to be manifestly inadequate, a court retains a residual discretion to decline resentencing, particularly where the offender has already been released and is on parole.

  • The objective seriousness of an offence involving wounding is not reduced simply because the accused did not intend grievous bodily harm. The Court of Criminal Appeal held that the actual severity of the victim's injuries remained relevant to the objective gravity of a reckless wounding charge.

  • Youth and a disadvantaged background are significant mitigating factors in sentencing, but they do not displace the relevance of prior offending. Committing a serious violent offence while on parole for a prior violent offence remains an aggravating circumstance under s 21A of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54B

Cases:
- BP v R [2010] NSWCCA 159
- Curtis v R [2007] NSWCCA 11
- Gillard v R [2003] HCA 64; (2003) 219 CLR 1
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- Mulato v R [2006] NSWCCA 282
- R v DGP [2009] NSWSC 1154
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Vaelia v R [2010] NSWCCA 113