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Court of Criminal Appeal 5 April 2017

Vaiusu v R

[2017] NSWCCA 71

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Vaiusu v R [2017] NSWCCA 71
Court: NSW Court of Criminal Appeal
Date: 5 April 2017
Judges: Bathurst CJ, R A Hulme J, Beech-Jones J

Background

The applicant pleaded guilty in the Parramatta District Court to wounding with intent to cause grievous bodily harm, contrary to s 33(1) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of seven years. The victim was the husband of the applicant's sister.

The offence occurred in the early hours of 18 October 2015 outside Cabramatta train station. The applicant had armed herself with a broken glass shard after learning the victim had struck her sister during an altercation. CCTV footage captured her stabbing the victim three times in the neck without warning. The victim sustained a 10-centimetre wound requiring surgery.

The sentencing judge imposed a total sentence of two years and three months, with a non-parole period of one year and two months. The applicant sought leave to appeal, arguing that sentence was manifestly excessive in light of her personal circumstances, which included significant childhood deprivation, the death of her husband from cancer shortly before the offence, untreated major depressive disorder, and the impact of incarceration on her young daughter.

  • Whether the sentence of two years and three months (with a non-parole period of one year and two months) was manifestly excessive for a wounding with intent offence under s 33(1) of the Crimes Act 1900 (NSW).
  • Whether the sentencing judge gave insufficient weight to the applicant's background as a victim of domestic violence and her mental health condition at the time of the offence.
  • Whether the sentencing judge adequately considered the impact of the applicant's imprisonment on her daughter, who had already lost her father.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal. All three judges agreed that the sentence was within the legitimate bounds of the sentencing judge's discretion and could not be characterised as unreasonable or plainly unjust.

R A Hulme J, who wrote the principal judgment, found that the sentencing judge had expressly engaged with the applicant's subjective circumstances. The judge below had accepted that her moral culpability was reduced by her untreated major depressive disorder at the time of the offence, and had adjusted the weight given to general deterrence, retribution and denunciation accordingly. The reduction of the non-parole period below the proportionate figure that would otherwise have applied reflected a measured and sympathetic approach to the sentence.

On the question of the impact on the applicant's daughter, Beech-Jones J noted that the sentencing judge had specifically considered the prospect of separation from the child. The further argument, that the daughter faced particular hardship having already lost her father, had not been raised before the sentencing judge and was not supported by evidence on the appeal. In those circumstances, the Court held that the difficult questions about how sentencing courts address hardship to third parties such as children of offenders did not arise.

Bathurst CJ agreed with R A Hulme J and emphasised that the offence was serious. Even accounting for its placement below the middle range of objective seriousness and the strength of the applicant's subjective case, the sentence could not be said to fall into the category of unreasonable or plainly unjust, and therefore no basis for intervention existed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A sentence challenged as manifestly excessive will only warrant appellate intervention where it can be characterised as unreasonable or plainly unjust; sympathy for an offender's personal circumstances does not, of itself, provide grounds for the Court to intervene.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the weight to be attributed to mitigating factors, including mental health conditions and background disadvantage, falls within the sentencing judge's discretion, provided those matters have been identified and considered.
  • Where a subjective circumstance (such as the effect of imprisonment on an offender's child) is not raised before the sentencing judge and is not supported by evidence on appeal, an appellate court will not engage with it as a fresh ground.
  • The fact that a lesser sentence may have been open to the sentencing judge does not mean the sentence actually imposed was manifestly excessive; the range of available sentences is broad.
  • Under s 33(1) of the Crimes Act 1900 (NSW), a finding that an offence falls below the middle range of objective seriousness does not preclude a term of full-time custody, particularly where the nature of the attack is unprovoked and deliberate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 33(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 7, 44(2)

Cases
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Hanania v R [2012] NSWCCA 220
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- PK v R [2012] NSWCCA 263
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- Yang v R [2012] NSWCCA 49