AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 4 November 2022

Maybury v R

[2022] NSWCCA 233

Assault & violence
CRIME APPEALS APPEAL AGAINST SENTENCE

Citation: Maybury v R [2022] NSWCCA 233
Court: Court of Criminal Appeal, New South Wales
Date: 4 November 2022
Judges: Gleeson JA, Wright J (principal judgment), Cavanagh J

Background

The appellant was a member of an outlaw motorcycle club. After obtaining a recording of a fellow member giving a statement to police (contrary to club rules), the appellant organised a meeting at the club's gym. He played the recording to those present, then struck the victim twice in the head and shoulder with a length of timber. Other members joined in, kicking and stomping on the victim. The victim suffered a 12.5 cm laceration to the head and various other injuries. Afterwards, the victim was detained in a wheelchair while the word "DOG" was tattooed on his forehead.

The appellant was convicted of two counts: wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW), and detaining a person without consent with intent to commit a serious indictable offence in company, with actual bodily harm occasioned, under s 86(3). He was sentenced to an aggregate term of six years' imprisonment. Notably, the Crown had originally charged the more serious offence of causing grievous bodily harm with intent under s 33(1)(b), but chose not to proceed on that charge.

The appellant sought leave to appeal against sentence on one ground: that the sentencing judge erred by finding that the victim's injuries "clearly amount to grievous bodily harm" when the offence of conviction was wounding with intent, not causing grievous bodily harm with intent. The appellant argued this finding effectively sentenced him for an offence he was not charged with.

  • Whether the sentencing judge's finding that the victim's injuries amounted to grievous bodily harm breached the principles in The Queen v De Simoni (1981) 147 CLR 383, which prohibit sentencing an offender for a more serious offence than that of which they were convicted.
  • Whether that finding resulted in a miscarriage of justice.
  • Whether a sentencing judge is ever permitted to find that injuries amount to grievous bodily harm where that issue was not determined by the jury because it was not an element of the offence charged.
  • Whether the Crown's forensic decision to proceed with the lesser charge affected the sentencing analysis.

Decision

Wright J (Gleeson JA and Cavanagh J agreeing) granted leave to appeal but dismissed the appeal. The Court held that the sentencing judge had not erred in the manner alleged.

The Court reasoned that the offence of wounding with intent to cause grievous bodily harm requires both a wounding element and an intention element. When assessing the objective seriousness of such an offence, a sentencing judge is entitled and required to consider the nature and extent of all injuries closely connected with the wounding. The actual harm inflicted can be a legitimate indicator of the degree to which the offender harboured the relevant intent. The sentencing judge's finding about grievous bodily harm went to the assessment of culpability, not to substituting a more serious charge.

On the De Simoni principle, the Court held there was no breach. The sentencing judge did not sentence the appellant for the uncharged offence of causing grievous bodily harm with intent. The Crown's decision not to proceed with the s 33(1)(b) charge did not alter this conclusion. The judge's findings were consistent with the jury's verdict and supported by the evidence.

The Court also clarified the scope of a proposition that had been raised in argument: that it is always for a jury to determine whether injuries amount to grievous bodily harm, and not a sentencing judge. The Court rejected this as a proposition of universal application. A jury must only determine that issue when the infliction of grievous bodily harm is an element of the offence charged. Where it is not, a sentencing judge may make that finding as part of assessing the seriousness of the offending and the offender's degree of culpability.

Orders Made

  • Leave granted to make the application out of time.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge assessing the objective seriousness of a wounding with intent offence (s 33(1)(a), Crimes Act 1900) is entitled to consider the full nature and extent of injuries closely connected with the wounding, including finding those injuries amount to grievous bodily harm, as part of gauging the offender's culpability.
  • Under the De Simoni principle, what is prohibited is sentencing an offender for a more serious offence than that of which they were convicted. A finding about injury severity made in the course of assessing objective seriousness does not automatically amount to such a breach.
  • The proposition that it is always for a jury to determine whether injuries constitute grievous bodily harm is not of universal application. That question falls to the jury only when grievous bodily harm is an element of the charged offence.
  • The Crown's forensic decision to proceed with a lesser charge rather than a more serious alternative does not, of itself, prevent a sentencing judge from taking into account the full extent of the harm caused when assessing the seriousness of the offence actually charged.
  • Upholding the sentence, the Court of Criminal Appeal confirmed that the sentencing judge's approach was consistent with the jury verdict and open on the evidence, and that no miscarriage of justice had occurred.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 5, 33(1)(a), 33(1)(b), 35, 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(a), 3A(g), 53A(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Key Cases
- The Queen v De Simoni (1981) 147 CLR 383
- Kentwell v The Queen (2014) 252 CLR 601
- Cheung v The Queen (2001) 209 CLR 1
- Bourke v R [2010] NSWCCA 22; 199 A Crim R 38
- McCullough v R [2009] NSWCCA 94; 194 A Crim R 439
- Adams v R [2011] NSWCCA 47
- Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1
- Markarian v The Queen (2006) 228 CLR 357
- Muldrock v The Queen (2010) 244 CLR 120
- Nguyen v The Queen (2016) 256 CLR 656