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Court of Criminal Appeal 7 December 2004

Regina v King [2004] NSWCCA 444 revised - 7

[2004] NSWCCA 444

Also reported as (2004) 150 A Crim R 409
Assault & violence
CRIMINAL LAW SENTENCING APPEAL APPEAL AGAINST SEVERITY OF SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE CROWN APPEAL

Citation: Regina v King [2004] NSWCCA 444 revised - 7/12/2004; reported at 150 A Crim R 409
Court: NSW Court of Criminal Appeal
Date: 7 December 2004
Judge(s): McColl JA, Howie J, Buddin J

Background

The respondent pleaded guilty in the District Court to one count of malicious wounding with intent to do grievous bodily harm, contrary to s 33 of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment. The charge arose from an assault on a woman who was between 23 and 24 weeks pregnant. The respondent punched her in the abdomen, causing placental abruption and the death of the foetus, which was delivered stillborn three days later.

The prosecution of this offence had a complicated procedural history. A permanent stay of proceedings was initially granted at first instance on the basis that harm to a foetus could not constitute grievous bodily harm to the mother. The Crown appealed, and the Court of Criminal Appeal lifted the stay in earlier proceedings (R v King [2003] NSWCCA 399), holding that for the purposes of s 33, the foetus is to be regarded as part of the mother.

Following the restoration of proceedings, the respondent pleaded guilty. The District Court sentenced him to 10 years imprisonment with a non-parole period of 6 years and 6 months, backdated to the date of arrest on 21 August 2002. Both the respondent and the Crown then appealed: the respondent contending the sentence was manifestly excessive, and the Crown contending it was manifestly inadequate.

  • Whether the original sentence of 10 years (non-parole period 6 years 6 months) was manifestly excessive
  • Whether the sentencing judge erred by treating the actual or threatened use of violence as an aggravating factor under s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), when such violence was already an element of the offence
  • Whether the Crown had established that the original sentence was manifestly inadequate
  • What weight should be given to the youth of the offender, the impact of the offence on the victim, general deterrence, and the obligation to give reasons when sentencing for this type of offence
  • What sentence should be imposed on re-sentencing, having regard to the principle of double jeopardy applicable in Crown appeals

Decision

The Court dismissed the respondent's appeal against the severity of the sentence. While the Court accepted that a sentencing judge should not treat as an aggravating factor a matter that is already an element of the charged offence (consistent with the principle in R v De Simoni), it found that any such error did not render the sentence manifestly excessive in light of the objective seriousness of the conduct.

The Crown appeal succeeded. The Court found that the original sentence of 10 years was manifestly inadequate given the grave objective criminality involved, the significant impact of the offence on the victim, and the important role of general deterrence in cases of this kind. The Court emphasised that a civilised community cannot tolerate conduct of this nature, and that the sentence had to reflect the community's abhorrence of such behaviour.

On re-sentencing, the Court applied the double jeopardy principle that applies in Crown appeals. This principle requires the appellate court to impose a sentence at or toward the lower end of the range that should properly have been imposed at first instance, rather than the sentence the court itself would have imposed had it been the original sentencing court. The Court took into account the respondent's subjective circumstances, including his rehabilitative efforts in custody, and the fact that he was no longer on protection.

The Court was careful to note that the respondent was not being sentenced for killing the unborn child as a separate victim, but for the grievous bodily harm caused to the mother. This distinction, established in the earlier stay proceedings, was maintained throughout the re-sentencing exercise.

Orders Made

  • The respondent was granted leave to appeal against the severity of the sentence, but the appeal was dismissed.
  • The Crown appeal against the inadequacy of the sentence was allowed.
  • The sentence imposed below was quashed and replaced with a term of imprisonment of 12 years, commencing 21 August 2002, with a non-parole period of 8 years, also commencing 21 August 2002 and expiring on 20 August 2010.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, following R v King [2003] NSWCCA 399, the death of a foetus caused by an assault on a pregnant woman is capable of constituting grievous bodily harm to the mother for the purposes of s 33 of the Crimes Act 1900 (NSW).
  • A sentencing judge must not treat a matter that is already an element of the offence charged as a separately aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), though such an error will not necessarily render a sentence manifestly excessive in every case.
  • Where a Crown appeal against inadequacy of sentence succeeds, the double jeopardy principle requires re-sentencing toward the lower end of the range that should properly have been imposed at first instance, not at the level the appellate court would otherwise select.
  • General deterrence carried significant weight in the re-sentencing exercise, given the Court's finding that the community's abhorrence of such conduct must be reflected in the severity of the sentence.
  • Rehabilitative progress made by an offender while in custody remains a relevant subjective factor on re-sentencing, even where the Crown appeal has succeeded and the sentence is being increased.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5(1), 21A, 28, 44, 54A
- Criminal Appeal Act 1912 (NSW) ss 5(1)(c), 5D, 5F, 6(3)
- Criminal Procedure Act 1986 (NSW) s 23C

Key Cases:
- R v King [2003] NSWCCA 399; (2003) 59 NSWLR 472
- R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Veen v R (No 2) (1988) 164 CLR 465
- Wong v R [2001] HCA 64; (2001) 207 CLR 584
- R v Giam (No 2) [1999] NSWCCA 378; (1999) 109 A Crim R 348
- R v Kalache [2000] NSWCCA 2; (2000) 111 A Crim R 152
- R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v Dodd (1991) 57 A Crim R 349