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11
Court of Criminal Appeal 23 August 2012

Aldous v R

[2012] NSWCCA 153

Also reported as (2012) 227 A Crim R 184
Assault & violence
CRIMINAL LAW SENTENCE GLASSING ON LICENSED PREMISES CONSIDERATION OF STANDARD NON PAROLE PERIOD ASSESSMENT OF OBJECTIVE SERIOUSNESS

Citation: Aldous v R [2012] NSWCCA 153
Court: Court of Criminal Appeal, New South Wales
Date: 23 August 2012
Judges: Allsop P, Latham J, Davies J

Background

The applicant was convicted by a jury of wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW). The offence occurred at a hotel in Windsor during a poker competition. After losing his remaining chips and finishing his beer, the applicant struck the victim, a poker tournament official, on the back of the head with a schooner glass. The blow inflicted a 10 cm deep laceration to the victim's scalp.

The applicant had sought to argue at trial that he did not know the glass was in his hand and that alcohol had prevented him from forming the necessary intent. The jury rejected both contentions. The sentencing judge, Judge Woodbourne SC, found beyond reasonable doubt that the applicant deliberately used the glass with intent to cause grievous bodily harm.

The applicant was sentenced to a non-parole period of three years commencing 27 May 2011, with a balance of term of three years. He applied to the Court of Criminal Appeal for leave to appeal against that sentence.

  • Whether the sentencing judge gave determinative or primary weight to the standard non-parole period, contrary to the approach required by Muldrock v The Queen (2011) 244 CLR 120
  • Whether the sentencing judge erred in characterising the objective seriousness of the offending as "slightly below the middle of the range"
  • Whether the overall sentence was manifestly excessive

Decision

On the question of standard non-parole period error (ground 1), Allsop P, with whom Latham J agreed, held that a fair reading of the sentencing judge's reasons as a whole demonstrated that her Honour reached the sentence through an overall consideration of all relevant circumstances. The precision with which her Honour expressed the objective seriousness assessment reflected the then-prevailing orthodoxy established by decisions such as R v Knight and R v McEvoy, rather than any impermissible structuring of the sentence around the standard non-parole period as a determinative guidepost.

On the assessment of objective seriousness (ground 2), the Court declined to find error in the sentencing judge's evaluation. Allsop P described the offence as an intentional and vicious attack using a glass as a weapon to the head of a victim, capable of causing catastrophic injury. The suggestion that the offending fell well below the middle of the range, or was at the low end, was not accepted. Davies J separately observed that general deterrence looms large for glassing offences, a proposition supported by earlier authority.

On manifest excess (ground 3), Davies J examined a range of comparable cases and the relevant JIRS statistics. The statistics showed that, among offenders convicted after trial, only 27% received a non-parole period of three years or less, a figure that did not support the applicant's contention that the sentence was out of range. Taken together with the subjective circumstances, which the applicant's own counsel acknowledged the sentencing judge addressed punctiliously and fairly, the Court found the sentence to be within the appropriate range and not manifestly excessive.

All three judges agreed that even if some form of Muldrock error had been made out, no lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW).

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's use of the "middle of the range of objective seriousness" language, as it appeared in pre-Muldrock authority, does not of itself establish error where a fair reading of the reasons as a whole discloses that no undue weight was given to the standard non-parole period as a guidepost.
  • An intentional strike to the head with a glass, capable of causing catastrophic injury and resulting in serious laceration, was assessed as appropriately placed slightly below the midpoint of objective seriousness for the offence of wounding with intent to cause grievous bodily harm.
  • General deterrence carries significant weight in sentencing for glassing offences on licensed premises, a principle the Court affirmed by reference to R v Miria [2009] NSWCCA 68.
  • Statistical data from JIRS may inform the range of appropriate sentences but does not, on its own, establish that a particular sentence is outside that range, particularly where the methodology and comparator group require scrutiny.
  • Even where a Muldrock-type error is identified in the sentencing approach, an appellate court retains the power under s 6(3) of the Criminal Appeal Act 1912 (NSW) to decline to substitute a lesser sentence where none is warranted in law.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Knight [2007] NSWCCA 283; 176 A Crim R 338
- R v McEvoy [2010] NSWCCA 110
- Bolt v R [2012] NSWCCA 50
- Williams v R [2012] NSWCCA 172
- Butler v R [2012] NSWCCA 140
- Zreika v R [2012] NSWCCA 44
- R v Miria [2009] NSWCCA 68
- R v Bonett [2009] NSWCCA 135
- R v Jenkins [2006] NSWCCA 412
- R v Koloamatangi [2011] NSWCCA 288
- R v Mitchell & Gallagher [2007] NSWCCA 296
- R v Wall [2002] NSWCCA 42
- House v The King [1936] HCA 40; (1936) 55 CLR 499