AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 13 February 2019

Ewan v R

[2019] NSWCCA 17

Assault & violence
SENTENCE RECKLESSLY CAUSE GRIEVOUS BODILY HARM

Citation: Ewan v R [2019] NSWCCA 17
Court: Court of Criminal Appeal, New South Wales
Date: 13 February 2019
Judges: Hoeben CJ at CL, Wright J, Fagan J

Background

The applicant pleaded guilty in the Local Court to one count of recklessly causing grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 10 years imprisonment, with a standard non-parole period of 4 years.

The offence arose from an incident on 15 July 2017 in Kogarah. Following an earlier altercation between the victim and the applicant's father, the applicant approached the victim from behind that evening, jumped into the air, and struck the back of the victim's head with his fist. The victim fell forward, striking his face on the ground. He sustained a subdural haematoma, a fracture to the frontal bone, and a laceration to the forehead requiring surgery under general anaesthetic.

The sentencing judge in the District Court imposed a sentence of 2 years and 6 months, with a non-parole period of 1 year and 3 months, after applying a 25% discount for the early guilty plea. The applicant sought leave to appeal to the Court of Criminal Appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentence imposed by the District Court was unreasonable or plainly unjust
  • Whether the sentence was manifestly excessive in light of the objective seriousness of the offence and the applicant's personal circumstances

Decision

Wright J, with whom Hoeben CJ at CL and Fagan J agreed, dismissed the appeal. The Court found no error of principle in the sentencing judge's approach and no basis to conclude the sentence was unreasonable, plainly unjust, or manifestly excessive.

The Court rejected the applicant's argument that the attack was spontaneous rather than planned. This submission was inconsistent with the sentencing judge's express finding that the events earlier in the day, combined with the deliberate approach from behind, indicated some degree of planning. That finding was plainly open on the facts.

On the applicant's prior criminal history, the Court confirmed the sentencing judge's approach was correct. The sentencing judge did not treat the prior conviction for assault occasioning actual bodily harm as a statutory aggravating factor, but did take it into account as a relevant matter given it also involved unprovoked violence. The sentencing judge held that the prior record did not completely disentitle the applicant to leniency, while still having regard to it.

The Court was satisfied that the sentencing judge properly considered all relevant subjective matters, including the applicant's rehabilitation, contrition, remorse, relative youth, engagement with counselling, time spent in pre-sentence custody, and the restrictive bail conditions he had faced. These matters were adequately reflected in both the starting point of 3 years and 4 months and the final sentence after the guilty plea discount.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's finding of some planning is a factual matter open on the evidence and will not be disturbed on appeal where it is consistent with the circumstances of the offence.
  • A prior conviction for an offence of violence may be taken into account as a relevant sentencing consideration even where it does not meet the threshold for a statutory aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The Court confirmed that positive subjective factors, including remorse, rehabilitation, youth, and pre-sentence custody, do not automatically produce a sentence reduction beyond what the sentencing judge has already expressly built into the overall sentence.
  • No error is established simply because an applicant identifies mitigating circumstances; the question is whether those circumstances rendered the sentence unreasonable or plainly unjust.
  • A sentence of 2 years and 6 months (non-parole period 1 year and 3 months) for recklessly causing grievous bodily harm involving a cowardly unprovoked attack from behind, causing a skull fracture and subdural haematoma, assessed as slightly below mid-range objective seriousness, was upheld as appropriate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)

Cases
- Baladjam v R [2018] NSWCCA 304
- Dinsdale v The Queen (2000) 200 CLR 321; [2000] HCA 54
- El-Sayed v R [2018] NSWCCA 250
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Mulato v R [2006] NSWCCA 282
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64