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Court of Criminal Appeal 1 May 2012

Golding v R

[2012] NSWCCA 76

Assault & violence
CRIMINAL LAW APPEAL ON GROUND SENTENCE EXCESSIVE APPEAL DISMISSED

Citation: Golding v R [2012] NSWCCA 76
Court: NSW Court of Criminal Appeal
Date: 1 May 2012
Judge(s): McClellan CJ at CL, Hidden J, Hislop J

Background

The appellant had pleaded guilty to recklessly wounding another person under s 35(4) of the Crimes Act 1900, with a maximum penalty of seven years imprisonment and a standard non-parole period of three years. The offending arose from a confrontation at a Surry Hills address in January 2010, during which the appellant retrieved a filleting knife and stabbed a sixteen-year-old girl in the chest after she stepped between him and another man he was attempting to stab. The wound punctured her lung, causing it to collapse, and she required emergency surgery and intensive care.

At the sentencing hearing, a related common assault charge (involving the same knife used to threaten a juvenile male on the same occasion) was taken into account on a Form 1. The sentencing judge imposed an overall head sentence of four years, reduced by 25 percent for an early guilty plea, resulting in a sentence of two years and three months with a nine-month balance of term.

The appellant sought leave to appeal to the Court of Criminal Appeal, contending that the sentence was manifestly excessive.

  • Whether the sentence of two years and three months (with a nine-month balance of term) was manifestly excessive in all the circumstances.
  • Whether the sentencing judge had wrongly assessed the objective seriousness of the offence, effectively treating it as though it fell under the more serious s 35(2) charge (which carries a maximum of ten years).
  • Whether insufficient weight was given to the unintentional nature of the injury and the victim's own intervention in the altercation.

Decision

Hislop J, with whom McClellan CJ at CL and Hidden J agreed, dismissed the appeal. The Court found no error in the sentencing judge's approach. The judge had clearly directed himself to the correct charge under s 35(4) and had expressly identified the applicable maximum penalty and standard non-parole period.

The Court rejected the submission that the injury's unintentional character and the victim's intervention significantly reduced the appellant's culpability. It was the appellant who introduced the knife, wielded it in the victim's presence, and by his actions caused the serious injury. Those facts plainly placed the offending in the middle range of objective seriousness, consistent with the sentencing judge's finding.

The appellant's reliance on Hyunwook Oh v R as a comparator also failed. The Court of Criminal Appeal noted that a comparison between two unrelated cases does not of itself demonstrate error, and that the differences between the cases were significant: the appellant in Hyunwook had no prior convictions and no Form 1 matter, whereas this appellant had a substantial history of violent offending and the Form 1 matter involved him threatening a juvenile with the same knife. The Court found that the heightened need for specific (personal) deterrence, arising from that history and the appellant's limited insight into his offending, plainly supported the sentence imposed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A court of criminal appeal will interfere with a sentence only where error is established and it forms the positive opinion that a less severe sentence is warranted in law and should have been passed, as confirmed by reference to R v Simpson [2001] NSWCCA 534.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the appellant's introduction of a knife into a volatile situation, and his wielding of it, grounded his culpability regardless of whether the precise victim's injury was directly intended.
  • Comparing sentences across unrelated cases does not establish that one of those sentences was erroneous; the particular circumstances of each offender must be assessed individually.
  • A significant history of violent offending, combined with limited insight into its causes, can properly elevate the weight given to specific deterrence at sentencing.
  • Under s 35(4) of the Crimes Act 1900, recklessly wounding carries a maximum of seven years imprisonment and a standard non-parole period of three years; the Court confirmed the sentence here was within an appropriate range having regard to those parameters and all relevant factors.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2) and s 35(4)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Hyunwook Oh v R [2010] NSWCCA 148
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704