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Court of Criminal Appeal 6 September 2017

Stevens v R

[2017] NSWCCA 216

Assault & violence
CRIMINAL LAW APPEAL SENTENCE SENTENCE NOT MANIFESTLY EXCESSIVE LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Stevens v R [2017] NSWCCA 216
Court: NSW Court of Criminal Appeal
Date: 6 September 2017
Judges: Hoeben CJ at CL, Davies J, Bellew J (judgment delivered by Bellew J)

Background

The applicant pleaded guilty to recklessly causing grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 10 years imprisonment and a standard non-parole period of 4 years. The offence arose from an unprovoked attack at Bondi Junction in June 2015, in which the applicant ran after the victim from behind and struck him with a single punch to the right side of the jaw. The victim had no warning the blow was coming.

The force of the punch caused the victim to fall immediately, striking the left side of his head on the bitumen roadway. The victim lost consciousness and sustained a haemorrhagic contusion of the brain, a fracture of the orbital wall, and a laceration to the left forehead. He was left with permanent scarring, intermittent headaches, flashbacks, nightmares, and rapid mood swings.

At the time of the offending, the applicant was awaiting sentence in the Local Court for a prior assault occasioning actual bodily harm from November 2013, an offence that also involved unprovoked violence against a stranger in a public place. The sentencing judge imposed a term of 4 years and 6 months imprisonment with a non-parole period of 2 years and 9 months. The applicant sought leave to appeal that sentence.

  • Whether the sentencing judge erred in categorising the severity of the victim's injuries
  • Whether the sentence imposed was manifestly excessive

Decision

On the question of injury categorisation, Bellew J found no error on the part of the sentencing judge. The injuries sustained by the victim, including a brain haemorrhage, orbital fracture, and lasting psychological effects, were serious and warranted the characterisation given to them. The applicant's challenge to this aspect of the sentencing reasoning did not succeed.

On manifest excess, the court acknowledged that the sentence was stern but was not persuaded it was unreasonable or plainly unjust, applying the standard from Dinsdale v R (2000) 202 CLR 321. Although the offending was not planned, did not involve a weapon, and was constituted by a single punch, the court emphasised that the degree of violence was high. The victim was struck without warning while walking down the street, and the applicant had to run after him to deliver the blow.

The court drew on authority establishing that injury alone is not the sole determinant of sentence for this type of offence. Relevant aggravating factors included the unprovoked nature of the attack, the ferocity of the blow, and the fact that the victim was an innocent person going about his ordinary business. The applicant's prior conviction for a similar unprovoked public assault also bore on the assessment of his overall criminality.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that injury severity is not the sole determining factor when sentencing for recklessly causing grievous bodily harm. The circumstances of the attack, including its unprovoked nature and degree of violence, are independently relevant.
  • A single punch can attract a substantial sentence where it is delivered without warning, with significant force, against a defenceless and unsuspecting victim, and causes serious lasting injury.
  • The Court of Criminal Appeal applied Dinsdale v R (2000) 202 CLR 321, confirming that an appellate court will only intervene where the sentence is unreasonable or plainly unjust, not merely where it might be characterised as stern.
  • Relevant aggravating considerations identified in the authorities include the ferocity of an attack, its unprovoked character, and the fact that it was perpetrated on an ordinary citizen going about their business.
  • A prior offence of a materially similar character committed in comparable circumstances, particularly one for which the applicant was yet to be sentenced, is a weighty consideration in assessing an appropriate sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2) (recklessly causing grievous bodily harm)

Cases:
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- R v Mitchell; R v Gallagher [2007] NSWCCA 296
- R v McCulloch [2009] NSWCCA 94
- AM v R [2012] NSWCCA 203
- R v Zhang [2004] NSWCCA 358
- R v Woods NSWCCA, 9 October 1990 (unreported)