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Court of Criminal Appeal 19 October 2015

Newman v R

[2015] NSWCCA 270

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER MANIFEST EXCESS COMPARABLE SENTENCES

Citation: Newman v R [2015] NSWCCA 270
Court: Court of Criminal Appeal, New South Wales
Date: 19 October 2015
Judge(s): Macfarlan JA, Adams J, Fagan J (all agreeing)

Background

The appellant was convicted in the District Court of wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). The offence arose from an incident on 30 April 2013 in which the appellant, after a dispute at a residential unit, followed a physically disabled victim who had left the premises on a motorised mobility scooter. The appellant caught up with the victim approximately 300 to 350 metres away and struck him once on the head with a metal bar.

The victim suffered swelling, an abrasion, and a laceration requiring five sutures. The sentencing judge found the injuries fell "towards the lower end of the scale of seriousness" and that there was no evidence of any lasting effect. The offence was aggravated, however, by the use of a weapon and the vulnerability of the victim, who had multiple sclerosis and depended on a walking stick or motorised scooter to move around.

At first instance, Judge Huggett imposed a sentence of 6 years and 6 months imprisonment with a non-parole period of 3 years and 6 months. The appellant sought leave to appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the head sentence of 6 years and 6 months, and the non-parole period of 3 years and 6 months, were manifestly excessive for a single-blow wounding with intent where the injuries were relatively minor and had no lasting effects.
  • Whether, on resentencing, special circumstances justified a departure from the standard statutory ratio between the non-parole period and the balance of term under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

Fagan J, with whom Macfarlan JA and Adams J agreed, accepted that the offence was serious in a number of respects: it was a deliberate attack on a person already known to be physically disabled, it involved pursuit of the victim after the initial altercation had ended, and it was aggravated by the use of a weapon and the victim's vulnerability. The cowardly nature of the attack warranted denunciation.

Nonetheless, Fagan J concluded the sentence was manifestly excessive when measured against comparable cases decided by the Court. Nearly all comparable cases reviewed involved the use of a weapon, and some involved vulnerable victims, yet the sentences in those matters were markedly lower than what had been imposed here. His Honour found the District Court's sentence was pitched at a level appropriate to a much more savage or sustained attack, or one resulting in far graver or lasting injury.

On the question of special circumstances under s 44, Fagan J agreed with the sentencing judge's reasoning that the appellant required a lengthy period of supervision upon release, given his unresolved psychological difficulties and need for counselling. The Court therefore departed again from the statutory non-parole ratio on resentencing.

The Court noted the appellant's significantly disadvantaged background, including an unstable childhood, borderline intellectual deficiency, chronic depression, and reliance on antidepressant medication. These subjective circumstances, together with a minimal adult criminal record, were weighed in the resentencing exercise, though the primary basis for intervention was the manifestly excessive nature of the original sentence when compared to analogous cases.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • The sentence imposed in the District Court on 25 July 2014 is quashed.
  • The appellant is sentenced to a term of imprisonment of 4 years, with a non-parole period of 2 years and 2 months commencing 26 May 2014 and expiring 25 July 2016, and a balance of term of 1 year and 10 months commencing 26 July 2016 and expiring 25 May 2018.
  • The appellant becomes eligible for release on parole at the expiration of the non-parole period.

Key Takeaways

  • A sentence for wounding with intent under s 33(1)(a) of the Crimes Act 1900 must remain proportionate to the objective gravity of the specific offending, including the actual injury inflicted and its lasting consequences, even where aggravating factors such as a weapon and a vulnerable victim are present.
  • The Court of Criminal Appeal confirmed that, while comparable sentences cannot confine the sentencing discretion within boundaries different from those set by Parliament (following Hili v The Queen), consistency with comparable cases remains an essential consideration in identifying manifest excess.
  • Where a single blow causes moderate injury with no lasting effect, a sentence pitched at the level appropriate for a sustained or savage attack inflicting grave injury is liable to be reduced as manifestly excessive.
  • Special circumstances justifying departure from the s 44 statutory ratio may be found where an offender's psychological difficulties and need for supervision and counselling indicate a requirement for an extended period of post-release oversight.
  • An offender's significantly disadvantaged background, including intellectual limitations, childhood trauma, and mental health conditions, forms part of the subjective circumstances to be weighed at sentencing, though those matters did not independently ground the appeal here.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(c), 21A(2)(l), 44, 54A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases
- Chen v R [2011] NSWCCA 85
- Connelly v R [2009] NSWCCA 293
- Green v The Queen (2011) 244 CLR 462
- Haoui v R [2008] NSWCCA 209
- Heron v R [2006] NSWCCA 215
- Hili v The Queen (2010) 242 CLR 520
- Muggleton v R [2015] NSWCCA 62
- Nowak v R [2008] NSWCCA 89
- Porter v R [2015] NSWCCA 59
- R v Chisari [2006] NSWCCA 19
- R v Dickinson [2004] NSWCCA 457
- R v Miria [2009] NSWCCA 68
- R v Pearson [2002] NSWCCA 429
- R v Rudd [2010] NSWCCA 71
- Wong v The Queen (2001) 207 CLR 584