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11
Court of Criminal Appeal 22 May 2020

Field v R

[2020] NSWCCA 105

Assault & violence
CRIMINAL LAW SENTENCE APPEAL SERIOUS INJURIES SUFFERED BY VICTIM APPEAL DISMISSED.

Citation: Field v R [2020] NSWCCA 105
Court: Court of Criminal Appeal, New South Wales
Date: 22 May 2020
Judge(s): Hoeben CJ at CL; Walton J; Harrison J

Background

The applicant was convicted by jury in August 2018 of causing grievous bodily harm with intent, contrary to s 33(1)(b) 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 offence arose from a confrontation at a residential address in October 2016. The victim, who had a relationship with the occupant of the house, was on the front verandah when the applicant opened the front door. The victim punched the applicant in the face. The applicant then stabbed the victim in the stomach with a knife. The victim suffered serious injuries, including the removal of a portion of his bowel, and underwent multiple surgical procedures over the following months.

The sentencing judge at Campbelltown District Court accepted that the jury's verdict was consistent with a finding that the applicant acted in excessive self-defence. She sentenced the applicant to six years imprisonment with a non-parole period of four years. The applicant sought leave to appeal to the Court of Criminal Appeal, arguing that the sentence was infected by multiple errors and was manifestly excessive.

  • Whether the sentencing judge's assessment of the offence as "just below midrange" in objective seriousness was available on the facts, given the context of excessive self-defence
  • Whether the sentencing judge erred in applying general deterrence without sufficient regard to the individual circumstances of the offence and offender
  • Whether the applicant's status on conditional liberty at the time of the offence was properly treated as an aggravating factor, given the excessive self-defence finding
  • Whether the overall sentence of six years with a four-year non-parole period was manifestly excessive

Decision

Objective seriousness. The Court of Criminal Appeal found no error in the sentencing judge's assessment that the offence fell just below the midrange of objective seriousness. Although the stabbing was spontaneous and occurred in the context of excessive self-defence, it involved a disproportionate response to the perceived threat: the applicant used a knife against a shirtless man and caused severe, ongoing physical and emotional harm. The spontaneous nature of the offending did not reduce its seriousness below the midrange assessment.

General deterrence. The Court found that the sentencing judge did not err in her approach to general deterrence. The judge had regard to the applicant's personal circumstances, including his traumatic upbringing, significant drug addiction, and mental health issues, while still applying general deterrence principles appropriate to a serious offence involving a knife. No error was demonstrated in how those competing considerations were balanced.

Conditional liberty as aggravation. The applicant was subject to conditional liberty at the time of the offence, and the Court held this was properly treated as an aggravating circumstance under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The fact that the offence was found to involve excessive self-defence did not operate to exclude this statutory aggravating factor.

Manifest excess. The Court dismissed the manifest excess ground. Considered against the maximum penalty of 25 years and a standard non-parole period of seven years, the sentence of six years with a non-parole period of four years reflected the objective seriousness of the offending, the applicant's criminal history, his status on conditional liberty, and the favourable backdating of the sentence. The applicant received a finding of special circumstances, reducing the non-parole period to 67 per cent of the total term. Having been convicted after a contested trial, he was not entitled to any utilitarian discount for a plea of guilty.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A finding that an offence involved excessive self-defence does not automatically reduce the objective seriousness of the offending below a midrange assessment, particularly where the response involved a weapon and caused severe injury.
  • Under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW), offending while on conditional liberty remains a statutory aggravating factor even where the circumstances include elements of excessive self-defence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing judges retain significant flexibility within applicable principles, and an appellate court will not intervene merely because it might have exercised the discretion differently (following Markarian v The Queen [2005] HCA 25).
  • General deterrence may properly be applied to serious knife violence even where the offender has a traumatic personal history and significant addiction issues, provided the sentencing court has genuinely considered those personal circumstances.
  • No utilitarian discount for a guilty plea is available where an offender has been convicted after a contested jury trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A(2)(j)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- AB v The Queen [1999] HCA 46; 198 CLR 111
- Ali v R [2010] NSWCCA 35
- Baines v R [2016] NSWCCA 132
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
- Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Jonson v R [2016] NSWCCA 286
- Karout v R [2019] NSWCCA 253
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Mulato v Regina [2006] NSWCCA
- Patel v R [2019] NSWCCA 170
- Regina v FD; Regina v JD [2006] NSWCCA 31; 160 A Crim R 392
- R v Loveridge [2014] NSWCCA 120
- R v McDonald [2019] NSWSC 858
- R v Najem [2008] NSWCCA 32
- R v Richards (1981) 2 NSWLR 464
- R v Silva [2015] NSWSC 148