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16
Court of Criminal Appeal 24 March 2015

Betts v R

[2015] NSWCCA 39

Assault & violenceHomicide
CRIMINAL LAW SENTENCING WOUNDING WITH INTENT TO MURDER

Citation: Betts v R [2015] NSWCCA 39
Court: Court of Criminal Appeal
Date: 24 March 2015
Judge(s): Meagher JA, Hidden J, RS Hulme AJ (RS Hulme AJ writing)

Background

The applicant pleaded guilty to two offences arising from an attack on his former partner at their shared apartment in April 2010: wounding with intent to murder (Crimes Act 1900, s 27, maximum 25 years) and detaining without consent with actual bodily harm (s 86(2B), maximum 20 years). The attack lasted approximately 40 to 45 minutes and involved repeated stabbing. The sentencing judge found the offending was planned and that it was only luck the victim survived.

The sentencing judge imposed a fixed term of eight years for the detention offence and, for the wounding with intent to murder offence, 16 years with a non-parole period of 11 years, both commencing 17 April 2010. A 10% discount was applied for the utilitarian value of the guilty pleas.

The applicant sought leave to appeal on four grounds relating to aggravating factors, victim vulnerability, extra-curial punishment, and the relevance of his self-inflicted injuries to sentencing.

Legal Issues

  • Whether the sentencing judge erred in applying the aggravating factor of injury and harm under s 21A(2)(g), given that injury was an element of the offences
  • Whether the sentencing judge erred in finding the victim was "vulnerable" under s 21A(2)(l) because she was alone with the offender
  • Whether the applicant's self-inflicted injuries during the offending constituted extra-curial punishment warranting a sentence reduction
  • Whether the sentencing judge erred in limiting the significance of the applicant's injuries to their impact during the non-parole period only

Decision

Ground 1: Aggravating factor of injury under s 21A(2)(g)

The court noted that s 21A(2) prohibits double-counting an aggravating factor that is already an element of the offence. The elements of the offences required only a "wound" (breaking or cutting of the inner layer of skin) and "actual bodily harm" (hurt more than transient or trifling). The injuries actually suffered by the victim greatly exceeded those minimum thresholds. Accordingly, the sentencing judge did not err, and this ground failed (at [26]-[27]).

Ground 2: Victim vulnerability under s 21A(2)(l)

The court confirmed that sub-paragraph (l) concerns the weakness of a particular class or group of victims, identified by their inherent characteristics or situation, not vulnerability created by the specific acts of the offender. Finding the victim vulnerable merely because she was alone with the offender and at his mercy directed attention to the wrong question. That vulnerability arose from the particular events of the day, not from any group characteristic. The sentencing judge therefore erred, and this ground succeeded (at [29]-[30]).

Ground 3: Extra-curial punishment from self-inflicted injuries

The applicant sustained serious self-inflicted wounds during the attack, including stab wounds to his neck, abdomen and leg. The court applied Christodoulou v R [2008] NSWCCA 102 and Cvetkovic v R [2013] NSWCCA 66, both of which declined to treat voluntarily self-inflicted injuries as extra-curial punishment. The applicant's injuries were deliberately inflicted and intimately connected with his criminal conduct. No basis was advanced for departing from Christodoulou, and this ground failed (at [32]-[35]).

Ground 4: Relevance of injuries limited to non-parole period

The sentencing judge considered the applicant's injuries only in the context of hardship during custody, and only during the non-parole period. The court held this was an error. The injuries could affect the applicant throughout his entire sentence, including the balance term, for example by affecting his ability to comply with parole conditions. The significance of the injuries should not have been confined to the non-parole period alone. This ground succeeded (at [36]-[38]).

Overall outcome: No lesser sentence warranted

Despite two errors being established (Grounds 2 and 4), the court accepted the Crown's submission under s 6(3) of the Court of Criminal Appeal Act 1912 that no less severe sentence was warranted. The objective seriousness of the wounding with intent to murder offence was very high on the scale. The court noted that even adding back the plea discount, the non-parole period would represent only half the statutory maximum for an offence "so bad it is not easy to imagine one worse." The applicant's subjective circumstances, including good character, no prior record, and post-sentence rehabilitation efforts, did not displace the gravity of the objective features (at [40]-[48]).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999, victim vulnerability looks to the characteristics or inherent situation of a class or group of victims, not to vulnerability created by the offender's own conduct during the offence. A victim who is isolated and overpowered by an offender is not thereby "vulnerable" within the meaning of the provision (at [29]-[30]).

  • Self-inflicted injuries sustained by an offender during or as part of the commission of an offence are not extra-curial punishment and do not, of themselves, warrant a sentence reduction. The Court of Criminal Appeal confirmed this principle, consistent with Christodoulou v R and Cvetkovic v R (at [32]-[35]).

  • Where an offender's injuries are likely to affect the whole of a custodial sentence, including the balance term after release on parole, a sentencing judge errs by treating their significance as confined to the non-parole period alone (at [36]-[38]).

  • Establishing errors on appeal does not automatically produce a different sentence. Where objective seriousness is sufficiently extreme, a court of appeal may decline to resentence even after identifying error, applying the proviso in s 6(3) of the Court of Criminal Appeal Act 1912 (at [39]-[48]).

  • In assessing fresh material on a sentencing appeal, reports canvassing the causes or contributing factors of the offence are inadmissible, as the sentencing hearing was the proper occasion for such matters. Material going to post-sentence rehabilitation may be relevant but carries limited weight where the sentencing judge made no findings on comparable matters (at [47]).

Legislation and Cases Referenced

Legislation
- Court of Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g), (l)
- Crimes Act 1900 (NSW), ss 27, 86(2B)

Cases
- Christodoulou v R [2008] NSWCCA 102
- Cvetkovic v R [2013] NSWCCA 66
- Dragan Cvetkovic v The Queen [2013] HCASL 131
- R v SS [2010] NSWSC 1169
- R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740
- R v Williams [2005] NSWCCA 99