Waterfall v R

Citation: Waterfall v R [2019] NSWCCA 281
Court: Court of Criminal Appeal, New South Wales
Date: 25 November 2019
Judge(s): Macfarlan JA, Johnson J, Cavanagh J (unanimous)

Background

The appellant was a correctional officer employed by a private contractor managing Parklea Correctional Centre. On 26 December 2013, he summoned an inmate to an area of the facility not covered by close-range CCTV cameras and punched the inmate at least three times to the jaw over a dispute about a water bottle. Three other correctional officers were present and did not intervene. The inmate did not retaliate or defend himself.

The inmate sustained a displaced fracture of the mandible requiring surgery, including the fitting of a permanent titanium plate secured by four screws. Despite complaining of severe pain that evening, he was not provided with adequate medical attention or pain relief until the following morning. When taken to the nurses' clinic that night, the escorting officer directed him to say he had slipped in the shower, and the inmate told the nurse he had walked into a wall out of fear of further assault.

The appellant was acquitted of the more serious charge of intentionally causing grievous bodily harm but was convicted by a jury of recklessly inflicting grievous bodily harm under 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 District Court at Parramatta sentenced him to a total term of 5 years and 9 months, with a non-parole period of 3 years and 9 months. He sought leave to appeal that sentence to the Court of Criminal Appeal.

Legal Issues

• Whether the sentencing judge erred in assessing the objective seriousness of the offence, given that the Crown had conceded the injuries fell at the lower end of the scale for grievous bodily harm
• Whether the sentence imposed was manifestly excessive having regard to the appellant's subjective circumstances and the overall range of available sentences

Decision

On the first ground, the Court of Criminal Appeal rejected the argument that the sentencing judge had erred. The appellant contended that because the Crown conceded the injuries were at the lower end of the grievous bodily harm scale, the offending could not properly be placed in the upper mid-range of seriousness. The Court confirmed there is no principle that the nature or severity of injuries alone determines the objective seriousness of an offence. The sentencing judge was entitled to weigh the full matrix of circumstances, including the appellant's position of authority and the significant power differential between a correctional officer and an inmate.

The sentencing judge had identified a number of aggravating features beyond the injuries themselves: the delivery of at least three punches, the use of the applicant's positional authority to lure the victim to a less-observed area, the failure of other officers to intervene, the deliberate concealment of the assault, and the denial of adequate medical care. The Court found these features collectively supported placing the offending in the upper mid-range of criminality, notwithstanding the concession about injury severity.

On the second ground, the Court noted that manifest excess requires the appellant to demonstrate the sentence was unreasonable or plainly unjust, or that some misapplication of principle must have occurred. The appellant's submissions under this ground amounted to an invitation to reweigh the sentencing factors and reach a different result, which is not the appellate court's function. The Court held that the sentence appropriately reflected general deterrence, specific deterrence, and denunciation, particularly in the context of a serious breach of trust and authority by a person responsible for the welfare of those in custody.

Orders Made

• Leave to appeal granted
• Appeal dismissed

Key Takeaways

• There is no principle in NSW sentencing law that the nature or severity of injuries sustained necessarily determines the objective seriousness of an offence; courts may weigh all surrounding circumstances when making that assessment.
• A correctional officer who assaults an inmate occupies a position of trust and authority that constitutes a significant aggravating factor capable of elevating objective seriousness, even where the resulting injuries fall at the lower end of the relevant scale.
• In dismissing the appeal, the Court of Criminal Appeal reaffirmed that an appellant seeking to overturn a sentence on grounds of manifest excess must demonstrate the sentence was unreasonable or plainly unjust, not merely that a different weighing of factors was available.
• Aggravating circumstances such as the use of positional authority to isolate a victim, the involvement of multiple strikes, the failure to render medical assistance, and active concealment of the offending are all relevant to objective seriousness independently of the injuries caused.
• General deterrence and denunciation carry particular weight where an offender in a position of custodial authority commits an act of violence against a person in their care, consistent with the approach taken in comparable breach-of-trust cases such as R v Lamella [2014] NSWCCA 122.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 35
- Crimes (Administration of Sentences) Act 1999 (NSW), s 2A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(k)

Cases
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- House v R (1936) 55 CLR 499; [1936] HCA 40
- McCullough v R [2009] NSWCCA 94
- Mulato v R [2006] NSWCCA 282
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Channells (NSWCCA, 30 September 1997, unreported)
- R v Lamella [2014] NSWCCA 122
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Stevens v R [2017] NSWCCA 216
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64