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Court of Criminal Appeal 11 October 2017

Wick v R

[2017] NSWCCA 244

Assault & violence
CRIME RECKLESSLY CAUSE GRIEVOUS BODILY HARM CONVICTION APPEAL WHETHER VERDICT UNREASONABLE “GLASSING” ATTACK RECKLESSLY CAUSE GRIEVOUS BODILY HARM

Citation: Wick v R [2017] NSWCCA 244
Court: Court of Criminal Appeal, NSW
Date: 11 October 2017
Judges: Basten JA; Beech-Jones J; Fagan J (Basten JA and Beech-Jones J agreeing with Fagan J)

Background

The appellant was convicted by a jury of recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900 (NSW), following an unprovoked attack at a bar in Cronulla in the early hours of 21 September 2014. The appellant struck the victim across the right eye with a glass while the victim was rising from a table. The jury acquitted the appellant of the more serious charge of causing grievous bodily harm with intent under s 33(1)(b).

The victim sustained five full-thickness lacerations to his face requiring over 100 stitches, damage to his right eyelid and the surface of the eye, and a severed nerve above the right eyebrow that required microsurgery to repair. Full function of the affected facial muscle was restored after approximately one year, and no permanent damage to the eye or vision resulted.

The appellant was sentenced to four years imprisonment with a non-parole period of 18 months. He appealed both his conviction and, if the conviction appeal failed, his sentence.

  • Whether the injuries sustained by the victim were capable of constituting "grievous bodily harm" (that is, "really serious bodily harm") so as to support the conviction.
  • Whether the sentence of four years imprisonment with an 18-month non-parole period was manifestly excessive.

Decision

Conviction appeal: The appellant's sole argument was that the injuries fell short, as a matter of law, of the threshold for grievous bodily harm. Drawing on the principles stated in Swan v R [2016] NSWCCA 79, the Court confirmed that grievous bodily harm means not merely serious, but "really serious" bodily injury, assessed as a question of fact and degree, and limited to the injury itself and its direct physical effects rather than personal, social or economic consequences.

The Court distinguished the present facts from Swan, where a spinal fracture that healed naturally without surgery had been found insufficient. Here, the injuries were materially more serious: five deep facial lacerations requiring layered suturing, damage to the eyeball surface, and a severed nerve repaired only by microsurgery after a year's loss of muscle function. Fagan J concluded that these injuries were plainly capable of constituting really serious bodily harm and that the jury's verdict was not unreasonable. The conviction appeal was accordingly dismissed.

Sentence appeal: The Court found no basis for characterising the sentence as manifestly excessive. The sentencing judge had taken into account the objective seriousness of the offence alongside significant mitigating factors: the appellant's genuine remorse, low assessed risk of reoffending, good rehabilitation prospects, commencement of alcohol counselling while on bail, and strong character references. Special circumstances were found under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), producing a non-parole period of only 37.5% of the total sentence. The sentence was reconcilable with the range established in comparable glassing cases decided by the Court of Criminal Appeal.

Orders Made

  • The appeal against conviction is dismissed.
  • Leave is granted to appeal against sentence.
  • The appeal against sentence is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that "grievous bodily harm" requires really serious bodily injury, assessed on the injury itself and its direct physical effects, not its broader personal or economic consequences.
  • A conviction for recklessly causing grievous bodily harm will not be unreasonable where injuries include multiple deep facial lacerations, damage to the surface of the eye, and nerve severance requiring microsurgery, even if full function is ultimately restored.
  • In distinguishing Swan v R, the Court underscored that the question is always one of fact and degree: injuries that heal completely are not automatically disqualified from constituting grievous bodily harm where their nature and the treatment required reflect real seriousness at the time.
  • Sufficient subjective mitigation, including genuine remorse, low reoffending risk, and rehabilitation steps taken while on bail, can support a finding of special circumstances and a reduced non-parole period, without rendering an otherwise proportionate sentence manifestly excessive.
  • A four-year head sentence with an 18-month non-parole period for a reckless glassing causing nerve damage and extensive facial injury fell within the range established by prior Court of Criminal Appeal decisions on comparable offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- Swan v R [2016] NSWCCA 79
- Spooner v Regina [2009] NSWCCA 247
- Butters v R [2010] NSWCCA 1
- Dosen v R [2010] NSWCCA 283
- Blackwell v R [2012] NSWCCA 227
- Haoui v R [2008] NSWCCA 209