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District Court 6 September 2019

R v Christian Alfred Wooley

[2019] NSWDC 474

Assault & violenceTraffic & driving

Citation: [2019] NSWDC 474
Court: District Court of New South Wales
Date: 6 September 2019
Judge: Mahony SC DCJ

Background

Following a dispute rooted in romantic rivalry, the offender drove to a late-night confrontation in the small town of Bingara. The victim had summoned him to the meeting and, when he emerged from concealment, activated a chainsaw and thrust it towards the offender multiple times. The victim's sister intervened, persuaded the victim to turn off the chainsaw, and the victim began walking home.

Rather than leaving the scene, the offender drove his unregistered supercharged V6 Holden at speed along the incorrect side of the road towards the departing victim. He turned the vehicle at a nearby lane, then drove it directly at the victim, mounting the kerb and pinning him against a brick wall at between 30 and 40 kilometres per hour.

The victim suffered serious leg injuries, including an open comminuted tibia and fibular fracture requiring surgical fixation and skin grafting at John Hunter Hospital. At the sentencing hearing, a Victim Impact Statement detailed the ongoing physical, psychological and financial consequences the victim continued to experience more than two years after the incident.

Legal Issues

  • Whether the offender's conduct, following a jury verdict of guilty, warranted a full-time custodial sentence for causing grievous bodily harm with intent under section 33(1)(b) of the Crimes Act 1900 (maximum penalty 25 years; standard non-parole period of 7 years).
  • What weight should be given to provocation, specifically the victim's use of an active chainsaw, as a mitigating factor in sentencing.
  • Whether special circumstances existed under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (CSPA) to justify departing from the standard ratio between the head sentence and the non-parole period.
  • How the related charges recorded on the section 166 certificate of the Criminal Procedure Act 1986 should be dealt with.

Decision

Objective seriousness and the mid-range finding: The court assessed the offending as falling within the mid-range of objective seriousness for a section 33(1)(b) offence. The offender had ample opportunity to withdraw once the victim walked away from the chainsaw confrontation, yet deliberately drove a powerful vehicle at him, mounting a footpath to pin him against a wall (at [53]). The offence involved a complete disregard for public safety, with high potential for serious injury to bystanders as well as the victim (at [54]).

Provocation as a mitigating factor: The court accepted, as the Crown conceded, that the victim's use of an active chainsaw constituted provocation at a fairly extreme level, given the potential for very significant injury (at [61]). This provocation was the primary reason the court set a non-parole period below the 7-year standard. The court noted that the victim himself was sentenced to 2 years imprisonment with a 12-month non-parole period for his role in the confrontation (at [61]).

Subjective circumstances and other mitigating factors: The offender had no prior convictions for like offences, and both the psychologist Dr Kwok and the author of the Sentencing Assessment Report assessed him as a low risk of reoffending (at [56]). The use of the vehicle as a weapon was spontaneous rather than planned (at [57]). The court accepted the offender's stable employment history, supportive relationship, and good prospects for reintegration (at [59]).

Special circumstances and sentence structure: The court found special circumstances under section 44(2) of the CSPA, principally because this was the offender's first serious offence and first custodial term, and because he would require community supervision and assistance with anger management on release (at [65]). This justified varying the statutory ratio, producing a 3-year non-parole period within a 5-year head sentence. The sentence was backdated to account for 269 days already spent in custody (at [65]).

Orders Made

  • Convicted of Count 1: causing grievous bodily harm with intent under section 33(1)(b) of the Crimes Act 1900.
  • Sentenced to a total term of 5 years imprisonment, comprising a non-parole period of 3 years commencing 11 December 2018 and expiring 10 December 2021, with a balance of term of 2 years expiring 10 December 2023.
  • Related offences on the section 166 certificate dealt with under section 10A of the CSPA (conviction recorded, no further penalty) for: failing to stop and assist after vehicle impact causing grievous bodily harm (with a 3-year driving disqualification); driving during a disqualification period (with a 6-month driving disqualification); using an unregistered vehicle; custody of an offensive implement in a public place; and behaving in an offensive manner in or near a public place.

Key Takeaways

  • Where an offender deliberately drives a motor vehicle at a victim who has already withdrawn from a confrontation, the sentencing court may characterise that conduct as falling within the mid-range of objective seriousness for an offence under section 33(1)(b) of the Crimes Act 1900, notwithstanding substantial prior provocation (at [53]).

  • Extreme provocation, including the victim's use of an active chainsaw, can justify setting a non-parole period below the standard non-parole period even when objective seriousness is assessed at the mid-range (at [61]).

  • The spontaneous use of a vehicle as a weapon, unplanned at the outset, constitutes a mitigating factor under section 21A(3)(b) of the CSPA, distinguishing the conduct from premeditated offending (at [57]).

  • Special circumstances under section 44(2) of the CSPA may be established where the offender is serving a first serious custodial sentence and requires structured community supervision and therapeutic intervention, justifying a longer-than-standard balance of term (at [65]).

  • Both general and specific deterrence remain significant sentencing considerations where an offender uses a motor vehicle as a weapon against another person in a public place, with the court noting that Parliament has prescribed lengthy maximum penalties for such conduct (at [58]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Criminal Procedure Act 1986

Cases
- R v De Simoni (1981) 147 CLR 383