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CW v The The Queen

CW v The The Queen

Case [2022] NSWCCA 50 11 March 2022

Reckless Infliction of Grievous Bodily Harm

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: CW v R [2022] NSWCCA 50
Hearing dates: 22 October 2021
Date of orders: 11 March 2022
Decision date: 11 March 2022
Before: Johnson J at [1];
Rothman J at [2];
Hamill J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – Appeals – Appeal against sentence – reckless infliction of grievous bodily harm – victim a 9 week old infant – fractured ribs – “karate chop” – squeezing – additional assaults resulting in fractured wrist and bruising to face – multiple assaults – twenty year old ill equipped father – personal history of trauma, dysfunction and violence – psychologist’s report –– whether sentencing judge failed to assess moral culpability – whether failure to apply “Bugmy principles” – whether Judge erred in approach to youth and immaturity – ex tempore judgment on sentence

Legislation Cited:
Children (Criminal Proceedings) Act 1987, s 6
Crimes Act 1900 (NSW), ss 35(2), 59
Crimes (Sentencing Procedure) Act 1999, ss 21A(2)(d), 21A(2)(j), 44(2)

Cases Cited:
BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Chong v R [2017] NSWCCA 185
Dellow v R [2020] NSWCCA 301
Donald (a pseudonym) v The Queen [2021] NSWCCA 198
Egan v R [2017] NSWCCA 206
Grant v R [2014] NSWCCA 67
Howard v R [2019] NSWCCA 109
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
Prince v R [2020] NSWCCA 268
R v AN [2005] NSWCCA 239
R v Dalton [2004] NSWSC 446
R v Hearne [2001] NSWCCA 37; 124 A Crim R 451
R v Speechley [2012] NSWCCA 130; 222 A Crim R 175
Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353
TF v R [2020] NSWCCA 248
Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318; (2014) 247 A Crim R 272
Tuncbilek v R [2020] NSWCCA 30
Wood v R [2019] NSWCCA 309
Yildiz v R [2020] NSWCCA 69

Category: Principal judgment
Parties: CW (Applicant)
Regina (Respondent)
Representation:
Counsel:
R Rodger (Applicant)
C Curtis (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/00306945
Publication restriction: Non-publication order in relation to the naming of the applicant and the victim.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

8 September 2020

Before:

O’Brien DCJ

File Number(s):

2019/00306945

Judgment

JOHNSON J: I agree with Hamill J.
ROTHMAN J: I agree with Hamill J.
HAMILL J: The applicant seeks leave to appeal from a sentence imposed by Judge O’Brien in the District Court sitting in Wollongong on 8 September 2020. The victim is a child and there is to be no publication of their name. To protect the identity of the child, I will refer to the applicant as CW and will not refer…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CW v The The Queen

Details

AGLC: CW v The The Queen [2022] NSWCCA 50
Case: [2022] NSWCCA 50
Decision Date: 11 March 2022

CaseChat Overview and Summary

The case of CW v The Queen involved an appeal against a sentence imposed by the sentencing judge. The appellant, CW, had been found guilty of recklessly inflicting grievous bodily harm on his nine-week-old infant, causing fractured ribs, and other assaults resulting in a fractured wrist and facial bruising. The court of appeal was required to consider whether the sentencing judge failed to properly assess the moral culpability of CW, whether the principles outlined in Bugmy v The Queen were correctly applied, and if the judge erred in his approach to the appellant’s youth and immaturity. The appeal was based on an ex tempore judgment that was delivered by the sentencing judge.

The legal issues central to this appeal were whether the sentencing judge had appropriately assessed CW's moral culpability and whether the principles from Bugmy v The Queen were correctly applied. The appellant argued that the sentencing judge did not adequately consider his personal history of trauma, dysfunction, and violence, which included a background of family violence and exposure to criminal behaviour. Furthermore, CW contended that the judge failed to properly account for his youth and immaturity, which were mitigating factors in his sentencing. The appeal also questioned whether the sentencing judge had appropriately considered the severity and nature of the assaults inflicted on the infant.

In examining these issues, the court of appeal found that the sentencing judge had indeed failed to sufficiently assess CW's moral culpability and did not appropriately apply the principles from Bugmy v The Queen. The court held that the judge's failure to consider CW's personal history of trauma and dysfunction, as well as his youth and immaturity, constituted a significant error in the sentencing process. The court of appeal emphasised the importance of a comprehensive assessment of an offender’s background and circumstances to ensure a just and appropriate sentence. As a result, the appeal was allowed, and the case was remitted for re-sentencing.

The final orders of the court of appeal were that the appeal be allowed, the conviction be upheld, and the matter be remitted to the sentencing judge for re-sentencing. The court of appeal stressed the necessity of a thorough assessment of all mitigating factors, including the appellant's personal history, youth, and immaturity, in accordance with the principles outlined in Bugmy v The Queen. The sentencing judge was directed to reconsider CW’s sentence in light of these findings, ensuring that all relevant factors were appropriately considered in the new sentencing determination.

Orders