AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 20 September 2024

Aiga v R

[2024] NSWCCA 175

Assault & violence
CRIME APPEALS APPEAL AGAINST SENTENCE RECKLESSLY CAUSING GRIEVOUS BODILY HARM EX TEMPORE JUDGMENT RANGE

Citation: Aiga v R [2024] NSWCCA 175
Court: NSW Court of Criminal Appeal
Date: 20 September 2024
Judges: N Adams J (lead judgment); Ierace J and Sweeney J (agreeing)

Background

The appellant pleaded guilty in the Local Court to one count of recklessly causing grievous bodily harm (s 35(2), Crimes Act 1900 (NSW)) and a related common assault. The offending occurred in the early hours of the morning at a hotel in Kogarah. The appellant, who had been drinking heavily with his partner throughout the evening, returned to the tavern where his partner worked and became involved in a disturbance. He grabbed a female bar attendant by the head and smashed a glass into her face, causing a wound that required surgery and left permanent facial scarring. The entire incident was recorded on CCTV.

The District Court sentenced the appellant to an aggregate term of 4 years and 6 months imprisonment with a non-parole period of 2 years and 6 months. A 25% discount was applied for the early guilty plea. The sentencing judge assessed the objective seriousness of the principal offence as slightly above the mid-range.

The appellant sought leave to appeal to the Court of Criminal Appeal on the grounds that the sentencing judge made factual errors, mis-assessed objective seriousness, wrongly declined to reduce moral culpability on the basis of the appellant's alcohol use disorder, and imposed a manifestly excessive sentence.

  • Whether the sentencing judge made findings of fact not available on the evidence, including that the injury severed an artery, was life-threatening, and caused greater harm to the victim because of her gender
  • Whether it was open to the sentencing judge to assess the offence as slightly above the mid-range of objective seriousness
  • Whether the sentencing judge erred in declining to find reduced moral culpability on the basis that the appellant's alcohol use disorder was not the sole causal factor of the offending
  • Whether the sentence was manifestly excessive

Decision

Factual errors: The Court found two errors in the sentencing judge's ex tempore remarks. First, there was no evidence before the court, and no Crown submission, to support findings that the injury had severed an artery or was life-threatening. Second, in the absence of a victim impact statement, it was not open to the sentencing judge to find that facial scarring caused the victim greater concern than it would a hypothetical male victim. While ex tempore judgments are to be read with latitude, the Court accepted that these errors had the capacity to influence the finding of objective seriousness. This required the Court to resentence.

Objective seriousness: Approaching the matter afresh, the Court confirmed that a finding of slightly above mid-range remained open on the evidence. The appellant had grabbed the victim's head and intentionally driven a glass into her face. The only provocation for the attack was that the victim had attempted to stop him from aggressively arguing with his own partner. The injuries were serious and lasting, and the victim was vulnerable as a late-night hospitality worker dealing with an aggressive intoxicated patron.

Moral culpability: The appellant argued his PTSD caused his alcoholism, which in turn caused the offending, and that this chain substantially diminished his moral culpability. The sentencing judge had accepted that the appellant's PTSD may have been a causal factor in his drinking but was not satisfied it was the causal factor. The Court of Criminal Appeal found no error in this approach. The evidence showed the appellant had some awareness that his alcohol use caused problems and had previously adhered to alcohol abstention conditions. The Court also noted that general deterrence carries reduced weight where a person's mental illness impairs their capacity for self-regulation, but that this consideration does not automatically translate into substantially reduced moral culpability in all such cases.

Resentencing: On resentencing, the Court arrived at an aggregate sentence slightly longer than that imposed at first instance. However, consistent with established practice, the Court declined to impose a more severe sentence. Because the resentencing exercise was required, the manifest excess ground did not need separate consideration. The appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Factual findings in a sentencing judgment, including findings about the nature and severity of injuries, must be supported by evidence or submissions; a sentencing court cannot find an injury was life-threatening where no such evidence was adduced, even in an ex tempore judgment.
  • Where no victim impact statement is before the court, a sentencing judge cannot make assumptions about the psychological impact of an injury based on the victim's gender.
  • A causal connection between a mental health condition (such as PTSD) and an alcohol use disorder does not automatically reduce moral culpability substantially; the sentencing court is entitled to require satisfaction that the condition was the operative cause of the offending on the night in question.
  • In dismissing the appeal, the Court confirmed that the practice of the Court of Criminal Appeal is not to impose a more severe sentence on resentencing, even where the mathematical exercise produces a higher figure, given the practical constraints around issuing a "Parker warning" after reserved judgment.
  • Under s 6 of the Criminal Appeal Act 1912 (NSW), the Court has jurisdiction to impose a sentence more or less severe than that at first instance, but the exercise of that discretion is constrained by established practice where no warning has been given to the appellant.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(2), 61
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25D(2), 44(2A)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6

Cases:
- AB v R [2014] NSWCCA 339
- Benn v R [2023] NSWCCA 24
- Bourke v R (2010) 199 A Crim R 38; [2010] NSWCCA 22
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Buxton v R [2017] NSWCCA 169
- Clarke v R (2015) 254 A Crim R 150; [2015] NSWCCA 232
- Daniels v R [2016] NSWCCA 35
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DL v R (2018) 265 CLR 215; [2018] HCA 32
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Kelly v R [2016] NSWCCA 246
- Magro v R [2020] NSWCCA 25
- Mulato v R [2006] NSWCCA 282
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- R v Aiga [2023] NSWDC 622
- R v Engert (1995) 84 A Crim R 67
- RO v R [2019] NSWCCA 183