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Court of Criminal Appeal 28 June 2012

Mendes v R

[2012] NSWCCA 103

Assault & violence
CRIMINAL LAW SENTENCING TWO COUNTS HOW INTOXICATION DEALT WITH SENTENCES NOT MANIFESTLY EXCESSIVE.

Citation: Mendes v R [2012] NSWCCA 103
Court: NSW Court of Criminal Appeal
Date: 28 June 2012
Judges: Whealy JA, Davies J, Schmidt J

Background

The applicant pleaded guilty to two counts of maliciously inflicting grievous bodily harm with intent, arising from a violent knife attack on his then-partner and her friend in Sydney in October 2006. On the night in question, the applicant had consumed methylamphetamine, cannabis, and a large quantity of whiskey before the victims returned to the hotel room where he had been waiting.

A prolonged and serious attack followed. The applicant attempted to throw his partner from a hotel balcony, stabbed her multiple times, and then pursued her into the street, where he also stabbed her friend twice. The friend suffered deep stab wounds to the neck and back requiring emergency surgery, while the partner sustained multiple stab wounds to several parts of her body, including requiring surgical removal of a knife from her shoulder.

In February 2008, the sentencing judge imposed a total effective sentence of ten years with a non-parole period of seven years. The applicant sought leave to appeal, contending the sentences were manifestly excessive and that the sentencing judge had made several specific errors.

  • Whether the sentencing judge erred by treating the severity of the victims' injuries as an aggravating feature, given that serious injury is an element of the offence itself
  • Whether the sentencing judge gave insufficient weight to the applicant's intoxication as a mitigating factor
  • Whether the sentences imposed were manifestly excessive
  • Whether it was an error to fail to set a non-parole period for Count 2 (the attack on the male victim)

Decision

Davies J (with whom Whealy JA and Schmidt J agreed) upheld the appeal on a single, narrow ground: the sentencing judge had erred by declining to set a non-parole period for Count 2. This was identified as a legal error requiring the Court of Criminal Appeal to re-sentence the applicant. However, no lesser overall sentence was warranted.

On the injury severity point, Davies J accepted that the nature of grievous bodily harm forms part of the elements of the offence, but held that the particular gravity of the injuries actually inflicted remains relevant to the seriousness of the individual case. The sentencing judge was entitled to take the extent of the injuries into account when assessing where on the range the conduct fell.

Regarding intoxication, the Court found that the sentencing judge had correctly approached this as a double-edged consideration. While self-induced intoxication may reduce moral culpability to a degree, it also represents a risk knowingly created by the offender. Here, the applicant had deliberately carried the knife, having brought it with him to Sydney, and produced it during the altercation. His intoxicated state did not substantially reduce the gravity of his conduct.

The Court rejected the submission that the sentences were manifestly excessive. The attacks were prolonged, premeditated in the sense that the applicant was carrying the knife, and resulted in serious physical and psychological harm to both victims. Denunciation and retribution were significant considerations, and a lesser sentence would not adequately reflect the court's disapproval of the conduct.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentences imposed on 1 February 2008 quashed and the applicant re-sentenced as follows:
  • Count 2: non-parole period of 3 years and 9 months commencing 8 October 2006, expiring 7 July 2010, with an additional term of 1 year and 3 months expiring 7 October 2011
  • Count 1 (including Form 1 matters): non-parole period of 4 years commencing 8 October 2009, expiring 7 October 2013, with an additional term of 3 years expiring 7 October 2016

Key Takeaways

  • The severity of injuries suffered by a victim is not simply absorbed by the elements of the offence of maliciously inflicting grievous bodily harm; the particular gravity of those injuries remains relevant to assessing the seriousness of the individual offending.
  • Self-induced intoxication operates as a double-edged factor at sentencing: it may reduce moral culpability to some extent, but the deliberate creation of the risk of harm through intoxication limits the weight given to it in mitigation.
  • Carrying a weapon to a confrontation, even where the offender claims it was not initially intended for use against others, is a significant aggravating circumstance.
  • Failure to set a non-parole period for one count in a structured accumulation of sentences constitutes a legal error that requires re-sentencing, even where the overall sentence imposed is not found to be excessive.
  • In re-sentencing after identifying an error, the Court of Criminal Appeal is not required to reduce the overall effective sentence if the original total was appropriate; the correction may be purely structural.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Bourke v R [2010] NSWCCA 22
- Butler v R [2012] NSWCCA 23
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Jione [2007] NSWCCA 170
- R v Mitchell, R v Gallagher [2007] NSWCCA 296
- Stanford v R [2007] NSWCCA 73
- Way Zhen Wong v R [2010] NSWCCA 160