Citation: Blackwell v R [2012] NSWCCA 227
Court: Court of Criminal Appeal, New South Wales
Date: 1 November 2012
Judge(s): McClellan CJ at CL, McCallum J, Garling J (unanimous)
Background
The respondent was convicted after a judge-alone trial of recklessly inflicting grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900, following an altercation at a Sydney hotel in the early hours of 13 October 2007. While intoxicated, he struck an off-duty police officer in the face while holding a glass, causing the victim to permanently lose sight in one eye, sustaining facial scarring, psychological harm, and lasting limitations to his career and lifestyle.
The proceedings had a lengthy procedural history. An earlier jury conviction for the more serious offence of intentionally inflicting grievous bodily harm was quashed by the Court of Criminal Appeal in 2011 and a new trial ordered. At the retrial, the respondent pleaded guilty to the lesser statutory alternative before being arraigned, though the Crown did not accept that plea and proceeded on the more serious charge. The trial judge ultimately found him not guilty of the intentional offence but guilty of the reckless alternative.
On 13 February 2012, the District Court sentenced the respondent to 4 years and 4 months imprisonment with a non-parole period of 2 years and 8 months, backdated to 3 August 2009. As a result, the non-parole period had already expired before sentencing, and the respondent was released on parole on 16 May 2012. The Crown appealed the sentence.
Legal Issues
The Crown raised the following grounds of appeal:
- Whether the Crown was denied procedural fairness in the sentencing judge's factual findings, made after the judge-alone trial, regarding the respondent's knowledge that he was holding a glass when he struck the victim
- Whether the sentencing judge erred in finding that the respondent did not know he had a glass in his hand at the time of the assault
- Whether the sentencing judge erred in failing to treat the use of a glass as a weapon as an aggravating factor
- Whether the sentencing judge erred in applying a discrete mathematical discount for remorse, rehabilitation, and the unlikelihood of reoffending
- Whether a discount of 13 per cent for the guilty plea was insufficient or otherwise erroneous
- Whether the overall sentence was manifestly inadequate
Decision
Garling J delivered the judgment, with McClellan CJ at CL and McCallum J agreeing. The Court addressed each ground in turn, though the appeal ultimately failed on the exercise of residual discretion.
On the procedural fairness ground, the Court found that the sentencing judge's factual finding about the respondent's awareness of the glass in his hand was one properly available on the evidence from the trial. Because the trial itself supplied the factual foundation, no separate obligation arose to put the point to the parties before making that finding on sentence.
On the remaining sentencing error grounds, including the treatment of the glass as a weapon, the mathematical discount for mitigating factors, and the quantum of the plea discount, the Court found either no appellable error or declined to form a concluded view. On the question of manifest inadequacy, Garling J acknowledged that there was a sound basis for the Crown's submission, given the severity of the injury and the nature of a "result" offence under s 35(2), but expressly declined to reach a final conclusion on this ground.
Even assuming the sentence was manifestly inadequate, Garling J exercised the Court's residual discretion against re-sentencing. The respondent had already been released on parole, was living and working in rural New South Wales under supervision, had complied with all parole conditions, and had demonstrated good behaviour throughout. The Court found that no material supported a return to custody, and that the cumulative effect of the lengthy and complex procedural history weighed heavily against intervention.
Orders Made
- The Crown appeal was dismissed.
Key Takeaways
- Even where a Crown sentence appeal raises an arguable case of manifest inadequacy, the Court of Criminal Appeal may exercise its residual discretion to decline to re-sentence where the offender has already been released on parole and has demonstrated compliant and rehabilitative behaviour in the community.
- A sentencing judge conducting a judge-alone trial is entitled to rely on factual findings made during that trial when sentencing, without being required to provide the parties a further opportunity to address every factual inference drawn from the trial evidence.
- In dismissing the appeal, the Court treated the respondent's compliance with parole conditions, his settled circumstances in the community, and the extended and complex procedural history of the proceedings as compelling reasons against returning him to custody.
- Under s 35(2) of the Crimes Act 1900, reckless infliction of grievous bodily harm is a "result" offence, and the severity of the actual injury sustained by the victim is a significant consideration in assessing the adequacy of a sentence.
- The residual discretion to decline relief, even after establishing error, remains a meaningful safeguard in Crown sentence appeals, particularly where the consequences of intervention would be disproportionate given the offender's post-release conduct and the history of the proceedings.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(b), 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21
- Criminal Appeal Act 1912 (NSW), s 5D(1)
Cases:
- Blackwell v R [2011] NSWCCA 93
- Butters v R [2010] NSWCCA 1
- R v MAK and MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v Thompson; R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383
- Reberger v R [2011] NSWCCA 132
- Sayin v R [2008] NSWCCA 307
- Spooner v R [2009] NSWCCA 247