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Court of Criminal Appeal 5 October 2016

Walker v R

[2016] NSWCCA 213

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE S 35(B) CRIMES ACT 1900 MAXIMUM PENALTY 7 YEARS IMPRISONMENT PAROLE PERIOD TIME CUSTODIAL SENTENCE

Citation: Walker v R [2016] NSWCCA 213
Court: NSW Court of Criminal Appeal
Date: 5 October 2016
Judges: Gleeson JA (with Harrison J and Campbell J agreeing)

Background

The applicant pleaded guilty in the District Court at Lismore in May 2004 to maliciously inflicting grievous bodily harm under s 35(b) of the Crimes Act 1900 (NSW). The offence arose from an unprovoked punch thrown at a stranger outside a hotel in Ballina in June 2003, which fractured the victim's jaw in three places and required permanent surgical plating. The maximum penalty for the offence was 7 years imprisonment.

The applicant failed to appear for sentencing in June 2004, and a bench warrant was issued. He remained at large for over 11 years, living across several Australian states before settling in regional Victoria. He was apprehended by chance in October 2015 at an unrelated police road block when asked to produce his driver's licence.

At the sentencing hearing in March 2016, the applicant presented considerable evidence of rehabilitation, including steady employment, a stable family life, 15 character references, and an apparent cessation of alcohol use. However, his credibility was undermined when it emerged mid-hearing that he had given false instructions about his identity in relation to outstanding Queensland assault charges from 2008, and that his earlier claim to have abstained from alcohol since 2003 was untrue. The District Court imposed 2 years imprisonment with a non-parole period of 12 months. The applicant sought leave to appeal.

  • Whether the sentencing judge properly considered alternatives to full-time custody under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) before imposing imprisonment
  • Whether the sentencing judge gave adequate weight to the applicant's rehabilitation during the lengthy delay between the offence and sentencing
  • Whether the distinction between delay caused by the offender and delay arising from circumstances outside the offender's control was correctly applied
  • Whether the sentence of 2 years with a 12-month non-parole period was manifestly excessive or plainly unjust in all the circumstances

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the primary judge's approach or the sentence imposed.

On the question of alternatives to imprisonment, the Court found the sentencing judge had correctly concluded that full-time custody was the only appropriate option. A suspended sentence was characterised as overly lenient given the objective seriousness of the offending. An intensive correction order had not been sought by the applicant and was not considered appropriate in the circumstances.

On the delay and rehabilitation question, the Court drew a firm distinction between delay that arises from circumstances beyond an offender's control and delay that is attributable to the offender's own conduct. Because the 11-year delay resulted entirely from the applicant's own decision to abscond, the mitigation ordinarily available to a defendant who has rehabilitated during an unavoidable passage of time was significantly reduced. The absence of genuine remorse, combined with the applicant's credibility difficulties at the sentencing hearing (including the false instructions about the Queensland charges and the retraction of his alcohol abstinence claim), further weakened the subjective case.

The Court concluded that the sentence appropriately balanced the need for general and specific deterrence and community protection against the evidence of rehabilitation. The sentence was not unreasonable or plainly unjust.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Where an offender's delay in being sentenced is entirely self-caused (by absconding), the mitigating weight ordinarily accorded to rehabilitation during that delay is substantially diminished compared to cases where delay arose from circumstances outside the offender's control.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the sentencing judge was not required to impose an alternative to full-time custody simply because the applicant had, on the surface, rehabilitated over the intervening years.
  • A finding of no genuine remorse can properly be sustained where an offender's conduct at the time of arrest, credibility failings during the sentencing hearing, and failure to appear for sentencing collectively undermine the subjective case.
  • Under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), full-time imprisonment may be the only appropriate penalty for a serious and unprovoked assault causing permanent injury, even where the offender presents strong character evidence and has no recent offending.
  • No single correct sentence exists; an appellate court will only intervene where the sentence is unreasonable or plainly unjust, applying the principles in House v The King (1936) 55 CLR 499.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 35(b) (repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 5, s 88

Cases
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Douar v R [2005] NSWCCA 455
- Fedele v R [2015] NSWCCA 286
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King [1936] HCA 40; 55 CLR 499
- Lambert v R [2015] NSWCCA 22
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Papworth v R [2011] NSWCCA 253
- R v Foster [2001] NSWCCA 215
- R v JCE [2000] NSWCCA 498
- R v Morgan (1993) 70 A Crim R 368
- R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225
- R v Reeves [2002] NSWCCA 33
- R v Shore (1992) 66 A Crim R 37
- R v Todd (1982) 2 NSWLR 517
- R v Wegener [1999] NSWCCA 405
- R v Zamagias [2002] NSWCCA 17
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64