Citation: Patrick v R; Whitney v R [2020] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 15 April 2020
Judge(s): Meagher JA, Harrison J, Button J (Button J delivering the principal judgment)
Background
Two applicants had each pleaded guilty in the District Court at Parramatta to reckless wounding in company, an offence carrying a maximum of 10 years' imprisonment and a standard non-parole period of four years. The offence arose from a coordinated visit to a residence in Blacktown, where the applicants attended at the request of a drug supplier to evict his partner. Prior text messages between the parties showed the visit was arranged in anticipation that something untoward might occur. One applicant armed himself with a bicycle chain and padlock and struck the victim in the head with a single blow, causing a wound requiring five surgical staples. The other applicant was present as a participant in the joint criminal enterprise.
The first applicant, who faced additional charges relating to drug supply and possession of an unauthorised firearm, received an aggregate sentence of five years six months with a non-parole period of four years one month. The second applicant received a head sentence of four years with a non-parole period of three years. Both sought leave to appeal against the severity of their respective sentences.
Legal Issues
- Whether the sentencing judge erred in assessing the objective seriousness of the reckless wounding offence
- Whether the sentencing judge erred in finding the offence was aggravated by planning (under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999)
- Whether the sentencing judge erred in finding the two applicants shared equal criminal and moral culpability for the wounding
- Whether the sentences were manifestly excessive
- Whether the commencement date recorded for the second applicant's sentence contained a calculation error
Decision
The Court dismissed all substantive grounds of appeal for the first applicant. Button J found no error in the sentencing judge's assessment of objective seriousness, concluding the offence was plainly planned: the applicants had exchanged text messages before attending, one message expressly flagging the possibility of using "hardware," and both arrived in anticipation that something untoward might occur. The planning finding was well supported.
On the question of equal culpability between the two applicants, the Court found no error. Although one applicant delivered the blow, the other was a willing participant who knew the purpose of the visit and ascended the stairs alongside the principal. The sentencing judge was entitled to treat their culpability as substantially equivalent in those circumstances.
For the second applicant, the Court also rejected the argument that the offence was opportunistic or spontaneous, reiterating the significance of the pre-planned nature of the visit, the use of a makeshift weapon, the attack in the victim's own home, and the partial motivation of protecting associated drug criminality. The starting point and resulting sentence were found to be well within the sentencing discretion. However, the Court identified a genuine arithmetic error in the recorded commencement date of the second applicant's sentence. Rather than re-sentencing on the merits, the Court corrected the commencement date from 31 October 2018 to 1 October 2018, with corresponding adjustment of all expiry dates.
Orders Made
For the first applicant (Patrick):
- Appeal dismissed
For the second applicant (Whitney):
- Leave to appeal granted
- Appeal upheld on ground 4 (commencement date error only)
- Original sentence quashed
- In substitution: non-parole period of three years commencing 1 October 2018, expiring 30 September 2021, followed by a parole period of one year expiring 30 September 2022
- First eligible parole date: 30 September 2021
Key Takeaways
- Planning as a sentencing aggravating factor under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 can be established by pre-offence communications, even where only one participant ultimately inflicts the relevant injury.
- A finding of equal criminal and moral culpability between co-offenders does not require identical physical participation; it is sufficient that both parties attended together with shared purpose and knowledge that violence might occur.
- In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that an appellant must demonstrate the sentence was patently beyond the bounds of the sentencing discretion, not merely that it was stern or towards the higher end of the range.
- No error was established in the first applicant's sentence across any ground, and the appeal was dismissed in full.
- Where an arithmetic error in a sentence commencement date is identified on appeal, the Court of Criminal Appeal may correct it by quashing and re-imposing the sentence with the adjusted date, without conducting a full substantive re-sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 345 (reckless wounding in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n) (planning as an aggravating factor)
Cases: No specific cases were cited in the portions of the judgment provided.