Citation: Butler v R [2012] NSWCCA 23
Court: NSW Court of Criminal Appeal
Date: 20 March 2012
Judges: Whealy JA, Rothman J, Davies J (Davies J delivered the leading judgment)
Background
The appellant pleaded guilty in the District Court to maliciously wounding one victim with intent to cause grievous bodily harm. Two further malicious wounding offences involving a co-offender were listed on a Form 1, meaning they were taken into account at sentencing without separate convictions being recorded. The offences arose from a late-night attack in Sydney's CBD in July 2007, during which the appellant used a sharpened metal tool fitted over his finger to inflict severe lacerations on three victims. All three sustained permanent facial scarring and ongoing psychological harm.
The District Court sentenced the appellant to a non-parole period of 5 years and 6 months with an additional term of 3 years. The sentencing judge referred to the guideline judgment in R v Way when structuring the sentence. The appellant sought leave to appeal well outside the ordinary time limit, filing his notice in October 2011, and applied for an extension of time.
Legal Issues
- Whether the time for filing the appeal should be extended
- Whether the sentencing judge erred by referring to R v Way as a guideline or yardstick, particularly given the High Court's subsequent decision in Muldrock v The Queen
- Whether, even if error were established, a different sentence was warranted in the circumstances
Decision
The Court of Criminal Appeal granted the extension of time and granted leave to appeal, but ultimately dismissed the appeal. Davies J (with Whealy JA and Rothman J agreeing) found it necessary to consider whether the sentencing judge's reference to R v Way constituted appealable error in light of Muldrock, where the High Court had clarified that guideline judgments should not operate as a rigid starting point or yardstick in individual sentencing exercises.
The Court acknowledged that Muldrock had altered the sentencing landscape and that reliance on R v Way as a two-stage yardstick could, in some cases, amount to error. However, Davies J found that even accepting error was present, the sentence imposed was not one that warranted correction. The court examined the objective seriousness of the offending in detail, noting the use of a makeshift weapon, the severity and permanence of the injuries to three victims, and the deliberate nature of the attacks.
Several aggravating features reinforced this conclusion. The offences were committed only two days after the appellant had been placed on a bond for a prior assault involving drugs and alcohol. The victims had made plain they did not want to fight and were unable to escape. The prosecution's decision to place two of the three wounding offences on a Form 1 was itself a significant concession to the appellant. Taken together, these circumstances led the court to conclude that no lesser sentence was warranted.
Orders Made
- Extension of time for leave to appeal granted to 10 October 2011
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that, following Muldrock v The Queen, using R v Way as a rigid guideline or yardstick in sentencing can constitute error, but that such error will not automatically result in a different sentence being imposed.
- In dismissing the appeal, the court applied the principle that even where a sentencing error is identified, an appellate court will not intervene if the sentence actually imposed is otherwise appropriate on the facts.
- Form 1 offences, while not attracting separate convictions, are a significant concession to an offender; the court treated the prosecution's willingness to proceed this way as a meaningful benefit to the appellant in assessing the overall sentence.
- Aggravating circumstances, including committing further violence within days of receiving a bond for a prior assault and the use of a makeshift weapon causing permanent injury to multiple victims, carried substantial weight in sustaining the sentence.
- Prior criminal history bearing on an offender's need to address drug and alcohol issues remains a relevant sentencing consideration, even where a related bond has been stayed pending an appeal.
Legislation and Cases Referenced
Cases:
- Muldrock v The Queen [2011] HCA 39
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- Dionys v R [2011] NSWCCA 272
- R v Grube [2005] NSWCCA 140
- R v Koloamatangi [2011] NSWCCA 288
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37 (referenced via Attorney General's Application)