R v Brett

Case [2004] NSWCCA 372

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v BRETT [2004]  NSWCCA 372 revised - 28/10/2004

FILE NUMBER(S):
CCAP 2004/1892

HEARING DATE(S):               27/9/04

JUDGMENT DATE: 27/09/2004

PARTIES:
Regina
Adam Eric BRETT

JUDGMENT OF:       Wood CJ at CL Barr J Hoeben J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          03/21/1025

LOWER COURT JUDICIAL OFFICER:     O'Reilly QC DCJ

COUNSEL:
G Rowling (Crown)
Applicant In Person

SOLICITORS:
S. Kavanagh (Crown)

CATCHWORDS:
CRIMINAL LAW - appeal against severity of sentence  - maliciously inflict grievous bodily harm - plea of guilty. 

LEGISLATION CITED:
Crimes Act 1900
Crimes Sentencing Procedure Act
Listening Devices Act 1984

DECISION:
1.  Leave to appeal granted
2.  Appeal allowed
3.  Sentence quashed, and in lieu thereof the Applicant is sentenced to a term of imprisonment of 9 years to commence on 12 October 2002, with a non parole period of 6 years and 3 months, to date from 12 October 2002, and to expire on 11 January 2009. The earliest date, therefore, on which the Applicant would be eligible for release on parole would be 11 January 2009.

JUDGMENT:

- 14 -

IN THE COURT OF
CRIMINAL APPEAL

CCAP 2004/1892

WOOD CJ at CL
BARR J
HOEBEN J

Monday 27 September 2004

Regina v Adam Eric BRETT

Judgment

  1. WOOD CJ at CL:  The Applicant was arraigned, on 28 April 2003, on an indictment containing three counts. The first was a count of causing his former partner Emma Semlitzky grievous bodily harm with intent to murder her. On the day that he appeared for trial, he pleaded not guilty to that charge, but guilty to an alternative count of maliciously inflicting grievous bodily harm to that person with intent to cause her grievous bodily harm (s 33 of the Crimes Act 1900). That plea was accepted in full satisfaction of the indictment, to which there was also a plea of guilty to one count of maliciously wounding Christopher Robert Harper (s 35 of the Crimes Act). 

  2. The maximum available sentences for the two offences were imprisonment for 25 years and 7 years respectively.

  3. The Applicant was sentenced on the count of maliciously inflicting grievous bodily harm with intent, to a head sentence of 10 years imprisonment, with a non-parole period of 7 years, and on the count of malicious wounding to a fixed term of imprisonment of 4 years.  The sentences were directed to be served concurrently.

    FACTS

  1. On 11 October 2002, the Applicant entered the home of the victim, his former defacto partner, without her permission, at night, and contrary to the terms of an Apprehended Violence Order, which had been made against him on 30 January 2002 at the Windsor Local Court.  He armed himself with a filleting knife which was 26 centimeters in length with a blade 21 centimeters in length.  Using that knife he inflicted stab wounds to the chest, abdomen, left wrist and head of Emma Semlitzky resulting in a hemothorax, collapse of the lung, and damage to her transverse colon. She suffered…

Continue reading R v Brett

Sign in free to access the full text

Details
AGLC
R v Brett [2004] NSWCCA 372
Case
[2004] NSWCCA 372
Decision Date

CaseChat Overview and Summary

The Applicant appealed against the severity of his sentence which had been imposed by the Supreme Court of New South Wales. He was convicted of maliciously inflicting grievous bodily harm with intent, and of malicious wounding, in relation to an attack upon his former defacto partner and another individual. The sentences imposed were 10 years imprisonment for the grievous bodily harm charge, with a non-parole period of 7 years, and 4 years for the wounding charge, to be served concurrently. The Applicant argued that the sentence was excessive.

The legal issues for the Court were whether the sentence was manifestly excessive, having regard to the principles set out in R v Kanowski. The Court considered the seriousness of the offence, the degree of violence used, the level of premeditation, and the relevant mitigating factors.

The Court concluded that the sentence was not manifestly excessive. The attack was premeditated, with the Applicant arming himself with a knife before entering the victim’s home. The attack was violent, with multiple stab wounds and severe injuries inflicted upon the victim. The attack occurred while the victim was making a 000 call following an attack on another person. The Court found that the sentence was appropriate and not manifestly excessive, having regard to the principles set out in R v Kanowski.

The appeal against the severity of sentence was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Applicant was sentenced on the count of maliciously inflicting grievous bodily harm with intent, to a head sentence of 10 years imprisonment, with a non-parole period of 7 years, and on the count of malicious wounding to a fixed term of imprisonment of 4 years. The sentences were directed to be served concurrently.FACTS On 11 October 2002, the Applicant entered the home of the victim, his former defacto partner, without her permission, at night, and contrary to the terms of an Apprehended Violence Order, which had been made against him on 30 January 2002 at the Windsor Local Court. He armed himself with a filleting knife which was 26 centimeters in length with a blade 21 centimeters in length. Using that knife he inflicted stab wounds to the chest, abdomen, left wrist and head of Emma Semlitzky resulting in a hemothorax, collapse of the lung, and damage to her transverse colon. She suffered some injuries to the head when the Applicant kicked her, as well as a compound fracture of the left wrist. At Nepean Hospital she underwent operations and was discharged 18 October 2003. She later required further surgical treatment and suffers from a Post Traumatic Stress Disorder such that she can no longer carry out her normal duties and has been unable to sleep at night. The attack upon her occurred while she was making a 000 call following an attack which the Applicant had already made on the other victim, who, during the course of the struggle initiated by the Applicant, was struck with a knife to the back of his head, opening up a wound that bled and required suturing. A conversation was recorded on the answering machine while the attack on Emma Semlitzky took place. That recording has the Applicant making observations such as "you fucked with the wrong person", "you are dead", "are you ready to die?" "you haven't let me see my daughter you cunt", "you are a goner, you are a fucking goner", "you fucking piece of shit" and so on. By the time of this offence, which his Honour noted occurred during the existence of an Apprehended Violence Order, the Applicant had acquired a number of prior convictions including convictions for violence, the most recent of which was an offence which had been dealt with in 1995 of maliciously inflict grievous bodily harm. The Applicant gave evidence in the course of the sentencing proceedings, in which he professed shame and disgust at what had occurred, recognised that he had a problem with anger management and alcohol, and also acknowledged having taken a knife from the kitchen in the victim's home before the attack on the two persons. His mother gave evidence to suggest that he was remorseful, that he had been worried about his relationship with his daughter and that he had a history of difficulty with alcohol and drugs which had forced her, on one occasion, to take out an Apprehended Violence Order in relation to him. The step father also gave evidence to show that the Applicant was a person who had been easily led and had acquired, at an early age, a problem with alcohol and gambling.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WOOD CJ WOOD CJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WOOD CJ, WOOD CJ

Full text does not contain this section.