Citation: Tweeddale v Regina [2012] NSWCCA 99
Court: Court of Criminal Appeal, New South Wales
Date: 21 May 2012
Judges: Beazley JA (principal judgment), Hidden J (concurring, with additional remarks on sentence), Rothman J (concurring, with additional remarks on sentence)
Background
The appellant was involved in a violent altercation at a party in April 2010, during which he used a broken glass bottle to wound another man, leaving him with multiple lacerations requiring sutures to his scalp, ear, and arm. He pleaded guilty to reckless wounding under s 35(4) of the Crimes Act 1900 and was sentenced to a non-parole period of three years followed by an additional term of 18 months.
Following the incident, the appellant sent text messages to the victim's girlfriend offering $5,000 to have the charge dropped. He pleaded guilty to one count of offering to confer a benefit with intent to influence a witness under s 321(1)(a) of the Crimes Act 1900, for which he received a concurrent fixed term of 12 months.
On appeal, two distinct issues arose: first, whether the conviction on the s 321(1)(a) charge should be set aside because the indictment misdescribed who was offered the benefit; and second, whether the sentence for reckless wounding was manifestly excessive.
Legal Issues
- Whether the guilty plea to the s 321(1)(a) offence amounted to a miscarriage of justice, given that the indictment charged the appellant with offering a benefit to the victim's girlfriend when the evidence showed the benefit was offered to the victim himself
- What orders should follow if the conviction was quashed, including whether the matter should be remitted for further proceedings
- Whether the sentencing judge's finding that the victim's hospital photograph showed "significant cuts to his face" was factually supportable, and whether that error rendered the reckless wounding sentence manifestly excessive
Decision
Conviction appeal (s 321(1)(a) offence)
The Crown conceded on appeal that the evidence did not support the charge as particularised. The indictment alleged the appellant offered a benefit to Emma Thomas (the victim's girlfriend), but the evidence showed the offer was directed to the victim Jay Betcke himself. Because an essential element of the offence is that the benefit be offered to influence a person who is (or will be) called as a witness, the misdescription was not a technicality. The plea to a charge that the evidence could not sustain amounted to a miscarriage of justice, and the conviction was quashed.
The Crown argued there was sufficient evidence to ground a charge under s 319 of the Crimes Act (doing an act with intent to pervert the course of justice), which does not require that judicial proceedings have already commenced. The Court ordered that committal proceedings be continued under s 8A of the Criminal Appeal Act 1912, leaving open the possibility of a fresh charge under s 319.
Sentence appeal (reckless wounding)
The sentencing judge found, partly by reference to a hospital photograph, that the victim had sustained "significant cuts to his face." The Court of Criminal Appeal accepted that this finding went beyond what the photograph and medical evidence actually established. The injuries were serious but less extensive than the sentencing judge had found. A majority held this error warranted a modest reduction in sentence.
Hidden J in dissent considered the reduction proposed by Beazley JA insufficient, favouring a reduction of at least six months. Rothman J agreed with Beazley JA's proposed orders, noting that because the s 321(1)(a) sentence was no longer operative, the totality principle no longer constrained the re-sentencing exercise, but that any future sentence on a s 319 charge would likely run concurrently in any event.
Orders Made
• Proceedings be continued before the Local Court at Orange on the first date available that is convenient to the Court and to the parties
• Grant leave to appeal against the sentence imposed in respect of the charge under the Crimes Act 1900, s 35(4)
• Appeal against the sentence imposed in respect of the charge under the Crimes Act 1900, s 35(4) allowed
• Sentence the appellant to imprisonment for a non-parole period of 2 years and 8 months commencing on 11 January 2011 and expiring on 10 September 2013 and an additional term of 1 year and 6 months expiring on 10 March 2015. The first date upon which the appellant is eligible for release is 10 September 2013
Key Takeaways
- A guilty plea to a charge that the evidence cannot sustain constitutes a miscarriage of justice, and the resulting conviction will be quashed on appeal even where the Crown and defence have proceeded without apparent objection at first instance.
- Under s 321(1)(a) of the Crimes Act 1900, the person to whom the benefit is offered or conferred must correspond precisely to the person identified in the indictment; a misdescription of that person is a fundamental defect in the charge, not a minor particularity.
- Where a conviction is quashed on this basis, the Court of Criminal Appeal may order that committal proceedings continue under s 8A of the Criminal Appeal Act 1912, preserving the prosecution's ability to proceed on a properly formulated charge, such as perverting the course of justice under s 319.
- Factual findings at sentence must be grounded in the evidence actually before the sentencing court; where a judge draws inferences from a photograph or other material that go beyond what the evidence supports, an appellate court may intervene on the ground of manifest excess.
- Once a sentence on one count is set aside on appeal, the totality principle (which had originally shaped the overall sentence) may no longer apply, and the re-sentencing exercise must be approached afresh without reference to the discarded concurrent term.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 35(4), 319, 321(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), ss 6, 8A
Cases
- Kalick v R (1920) 55 DLR 104
- R v Rogerson [1992] HCA 25; 174 CLR 268
- R v Wilks [2001] NSWCCA 383
- Regina v OM [2011] NSWCCA 109