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Court of Criminal Appeal 24 September 2015

Osborne v R

[2015] NSWCCA 260

Assault & violence
CRIMINAL LAW APPEAL SENTENCE OFFENCE OF RECKLESS WOUNDING “GLASSING” SINGLE GROUND OF APPEAL

Citation: Osborne v R [2015] NSWCCA 260
Court: NSW Court of Criminal Appeal
Date: 24 September 2015
Judges: Macfarlan JA, R A Hulme J, Wilson J (all agreeing)

Background

The appellant pleaded guilty in the District Court to reckless wounding under s 35(4) of the Crimes Act 1900, after a jury acquitted him of the more serious charge of wounding with intent to cause grievous bodily harm. The offence occurred at a Clovelly hotel in April 2013, when the appellant turned toward the victim and forcefully drove two schooner glasses into his face, shattering one on impact. The assault was captured on security cameras.

The victim sustained multiple lacerations to both sides of his face and neck, required arterial wound treatment and suturing, and was left with significant permanent facial scarring. The consequences extended beyond the physical: the victim lost his job, had his career as a professional junior rugby league footballer set back by twelve months, and saw a nascent modelling career jeopardised.

Judge Lakatos SC sentenced the appellant to three years imprisonment with a non-parole period of two years, commencing 18 May 2014. A finding of special circumstances was made in the appellant's favour, producing the lower-than-usual ratio of non-parole period to head sentence. The appellant sought leave to appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the sentence of three years imprisonment with a two-year non-parole period for reckless wounding was manifestly excessive in all the circumstances.
  • Whether the sentencing judge gave adequate weight to the appellant's subjective case, including his good character, prior unblemished record, and the provocation extended by the victim.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding that the sentence, while stern, was not shown to be in error.

Wilson J, with whom Macfarlan JA and R A Hulme J agreed, examined the balance the sentencing judge was required to strike. The offence was objectively serious: the appellant used two glass vessels as weapons, delivered the blows without warning, and caused extensive injuries with lasting physical and psychological consequences for the victim. Although some provocation was accepted, the sentencing judge had explicitly found that it did not justify, and was grossly disproportionate to, the violent response.

On the subjective side, the Court accepted that the sentencing judge had taken into account the appellant's previously unblemished character, his good prospects, and his fractious emotional state at the time of the offence. The Court found no basis to conclude that these factors had been given inadequate weight.

Applying the well-established test from House v The King and the High Court's observations in Markarian v The Queen, the Court reiterated that there is no single correct sentence and that appellate intervention requires demonstrated error, not merely a view that the sentencing discretion might have been exercised differently. The appellant did not discharge that burden.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentence may be characterised as stern without being manifestly excessive; the distinction is central to the threshold for appellate intervention in sentence appeals.
  • Under the House v The King principle, an appellant must demonstrate error in the exercise of the sentencing discretion, whether directly identifiable or apparent from an unjust outcome; it is insufficient to show the appellate court might have sentenced differently.
  • Provocation accepted as a mitigating factor does not reduce culpability proportionately where the violent response is grossly disproportionate to the provocation offered; the sentencing court is entitled to treat the disproportion as an aggravating feature of the offence's seriousness.
  • In dismissing the appeal, the Court confirmed that using glass vessels as weapons and causing permanent scarring are properly treated as aggravating factors in the objective assessment of a reckless wounding offence.
  • Where a sentencing judge makes a finding of special circumstances and adjusts the non-parole period accordingly, that adjustment forms part of the overall sentencing discretion and does not itself indicate inadequate attention to an offender's subjective case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(a) (wounding with intent), s 35(4) (reckless wounding)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (special circumstances), Division 1A of Part 4, Table (standard non-parole periods)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Lowndes v The Queen [1999] HCA 19; 195 CLR 665
- Ali v R [2010] NSWCCA 35
- Majid v R [2010] NSWCCA 121
- R v Miria [2009] NSWCCA 68
- R v PGM [2008] NSWCCA 172
- R v Shepherd [2003] NSWCCA 351
- R v Spooner [2009] NSWCCA 247
- R v Towers [2000] NSWSC 420
- Sayin v R [2008] NSWCCA 307
- Wilson v R [2009] NSWCCA 73
- R v AJP [2004] NSWCCA 434; 150 A Crim R 575
- R v Smith (1837) 8 Carrington & Payne 173