AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 22 May 2013

Chen v R

[2013] NSWCCA 116

Assault & violence
CRIMINAL LAW NO PATENT OR LATENT ERROR ESTABLISHED APPEAL DISMISSED

Citation: Chen v R [2013] NSWCCA 116
Court: Court of Criminal Appeal, NSW
Date: 22 May 2013
Judge(s): Hoeben JA, Campbell J, Button J

Background

The applicant, a 22-year-old Chinese national on an indefinite bridging visa, pleaded guilty in the District Court to one count of reckless wounding in company under s 35(3) of the Crimes Act 1900 (NSW). The offence occurred on 19 March 2011 outside a karaoke bar in Haymarket, Sydney. The applicant, heavily intoxicated after attending a wedding, confronted a group of strangers without provocation, kicked the victim, and then slashed his right arm with a flick knife, causing a deep laceration requiring fifteen sutures and surgical treatment.

District Court Judge Frearson SC sentenced the applicant to a head sentence of three years' imprisonment with a non-parole period of eighteen months. Special circumstances were found, reducing the non-parole period below the standard non-parole period of four years that attached to the offence.

The applicant sought leave to appeal against the sentence on several grounds, including that the sentencing judge made an error in finding the offence was deliberate, that the judge misapplied principles relating to recklessness, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding that the applicant "intended to cause some injury," given that the offence charged was reckless wounding rather than intentional wounding.
  • Whether the reasoning in Blackwell v R [2011] NSWCCA 93 regarding recklessness applied to reckless wounding offences under s 35(3) of the Crimes Act 1900, and whether subsequent legislative amendments altered that position.
  • Whether the sentence of three years' imprisonment with an eighteen-month non-parole period was manifestly excessive, having regard to the applicant's subjective circumstances.

Decision

On the question of the deliberateness finding, the Court held that no error was established. Button J explained that the sentencing judge's statement that the applicant "intended to cause some injury" was not inconsistent with a conviction for reckless wounding. Under s 35(3) as it stood at the time of the offence, the word "wounds" encompassed any breaking of skin, whether a small cut or a large one. A finding of intention to cause some wounding injury did not elevate the offence to one requiring intent to cause grievous bodily harm, and the sentencing judge had not impermissibly taken into account conduct constituting a more serious offence.

On the recklessness question, the Court confirmed that recklessness can be established by proof of intention. Campbell J agreed that it was unnecessary to resolve whether the 2012 amendments to s 35 reversed the effect of Blackwell v R, because the charge was brought under the section as it stood in March 2011. The applicant's act of slashing the victim with a knife amply satisfied the fault element, and considerations of the gradations of severity of wounding were not relevant to the elements of the offence at the relevant time.

On manifest excess, the Court found that all subjective factors had been explicitly and generously addressed in the remarks on sentence. Those factors included the applicant's early guilty plea, genuine remorse, substantial intoxication, absence of prior criminal history, good prospects of rehabilitation, and the personal hardship suffered by both the applicant and his wife. The Court declined to characterise the hardship as exceptional.

Weighed against the subjective case was the unprovoked nature of the attack, the use of a flick knife, and the seriousness of the resulting injury. Having regard to the maximum penalty of ten years and the standard non-parole period of four years, the Court concluded that neither the head sentence nor the non-parole period could be characterised as manifestly excessive.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's finding of intention to injure is not necessarily inconsistent with a conviction for reckless wounding; recklessness as a fault element can be established by proof of intention, as confirmed in this decision.
  • Under s 35(3) of the Crimes Act 1900 as it applied in March 2011, any breaking of skin constituted a "wound," so gradations of severity did not go to the elements of the offence and were not a relevant consideration when characterising the offence as deliberate or reckless.
  • The Court of Criminal Appeal left open the question of whether the Crimes Amendment (Reckless Infliction of Harm) Act 2012 reversed the effect of Blackwell v R, as it was not necessary to decide the point on the facts of this case.
  • No error was established in the sentencing judge's approach, either in the deliberateness finding or in the weighing of objective and subjective factors.
  • In dismissing the appeal, the Court confirmed that a sentence of three years with an eighteen-month non-parole period for a serious, unprovoked, knife attack causing significant injury fell within the available sentencing discretion, even accounting for a strong subjective case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(3)
- Crimes Amendment (Reckless Infliction of Harm) Act 2012 (NSW)
- Crimes Amendment Act 2007 (NSW)
- Crimes Amendment (Gang and Vehicle Related Offences) Act 2001 (NSW)
- Criminal Legislation Amendment Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Blackwell v R [2011] NSWCCA 93; (2011) 81 NSWLR 119
- Hanania v R [2012] NSWCCA 220
- R v Coleman (1990) 19 NSWLR 467; (1990) 47 A Crim R 306
- R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
- R v Kane [1974] VR 759
- R v Smyth [1963] VR 737
- Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205