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15
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, NSW
Date: 24 March 2015
Judges: Meagher JA, Hidden J, RS Hulme AJ

Background

The appellant pleaded guilty in the District Court to two offences: wounding a former partner with intent to murder (contrary to s 27 of the Crimes Act 1900 (NSW)), and detaining her without consent with intent to obtain a psychological advantage, during which she suffered actual bodily harm (contrary to s 86(2B)). The attack, which the sentencing judge found was planned, extended over roughly 40 to 45 minutes inside a unit the parties had previously shared.

During the attack, the victim sustained 20 stab wounds to the back, multiple lacerations, two collapsed lungs, and a vertebral fracture. The appellant also suffered serious stab wounds, partly self-inflicted and partly inflicted by the victim in a desperate effort to escape. The appellant was hospitalised for several weeks following the offences.

The District Court sentenced the appellant to 16 years' imprisonment with an 11-year non-parole period for the wounding offence, and a concurrent fixed term of 8 years for the detention offence, applying a 10 per cent discount for the utilitarian value of his pleas. The appellant sought leave to appeal on four grounds.

  • Whether the sentencing judge erred by treating the substantial nature of the victim's injuries as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), when substantial injury was already an element of each offence
  • Whether the sentencing judge erred by finding the victim was "vulnerable" within the meaning of s 21A(2)(l), given that vulnerability was said to look to individual circumstances rather than group characteristics
  • Whether the injuries suffered by the appellant during the attack constituted extra-curial punishment (that is, punishment outside the courts, warranting a reduction in sentence)
  • Whether those injuries were relevant only to the non-parole period (by way of special circumstances), or also to the overall head sentence

Decision

Substantial injury as an aggravating factor: The Court of Criminal Appeal found no error in the sentencing judge's approach on this ground. Although the offences involved injury as an element, the judge was entitled to treat the particular severity and extent of the injuries as an aggravating matter going beyond the mere fact of injury required to establish the offence.

Vulnerability: The Court confirmed that the concept of vulnerability under s 21A(2)(l) looks to characteristics of a group to which the victim belongs, rather than to the individual circumstances of the particular victim. Here, the sentencing judge had identified the victim's situation inside the unit, alone with the offender and largely at his mercy, as the basis for vulnerability. The Court accepted that this was a proper basis for the finding.

Extra-curial punishment: The sentencing judge declined to treat the appellant's injuries as extra-curial punishment because those injuries arose in the course of the appellant's own criminal conduct. The Court of Criminal Appeal upheld that reasoning. Injuries voluntarily sustained by an offender while committing an offence do not constitute extra-curial punishment warranting a sentencing discount.

Relevance of injuries to the head sentence: The appellant argued that the injuries, even if not extra-curial punishment, should nonetheless have reduced the overall head sentence rather than being considered only in the context of the non-parole period. The Court rejected this ground. The sentencing judge's approach to the injuries was consistent with principle. The Court granted leave to appeal but dismissed the appeal, concluding that the objective gravity of the offences was so severe that no lesser sentence was warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Injuries sustained by an offender in the course of committing an offence, including those voluntarily received or self-inflicted, do not amount to extra-curial punishment justifying a reduction in sentence.
  • The Court of Criminal Appeal confirmed that the "vulnerability" aggravating factor under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 looks to the characteristics of a group to which the victim belongs, not merely to the individual circumstances of the particular victim at the time of the offence.
  • Where injuries suffered by an offender during an offence do not qualify as extra-curial punishment, they may still be relevant to the structure of a sentence (for example, to special circumstances affecting the non-parole period), but do not automatically reduce the head sentence.
  • Substantial injury to a victim can constitute an aggravating factor even where some degree of injury is an element of the offence, provided the actual harm inflicted goes beyond what the offence element strictly requires.
  • In dismissing the appeal, the Court observed that the objective features of this offending, measured against both the standard non-parole period and the statutory maximum, were so grave that the sentence was not excessive despite the appellant's favourable subjective circumstances.

Legislation and Cases Referenced

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

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