R v BWJ - [2008] NSWCCA 333

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v BWJ [2008] NSWCCA 333

FILE NUMBER(S):
2008/00011292

HEARING DATE(S):
16/12/2008

EX TEMPORE DATE:
16 December 2008

PARTIES:
Regina v BWJ

JUDGMENT OF:
Campbell JA Grove J Howie J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11292

LOWER COURT JUDICIAL OFFICER:
Puckeridge DCJ

COUNSEL:
L Wells - Crown
J Manuell - Respondent

SOLICITORS:
S Kavanagh - Crown
Sheeky Williams Solicitors - Respondent

CATCHWORDS:
Criminal Law - Proceedings for trial - Sentencing - Crown Appeal - maliciously inflict gbh upon a child by father - pleas of guilty - no alternative to full-time custody available - whether bonds manifestly inadequate - respondent re-sentenced.

LEGISLATION CITED:
Crimes Act 1900 - ss 35, 61
Crimes (Sentencing Procedure) Act 1999 - ss 10A, 35

CATEGORY:
Principal judgment

CASES CITED:
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Wall [2002] NSWCCA 42
R v Baker [2000] NSWCCA 85
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41

TEXTS CITED:

DECISION:
The Crown appeal is allowed and the sentences imposed in the District Court are quashed. In lieu the following sentences should be imposed upon the respondent: (1) In respect of the first charge of maliciously inflicting grievous bodily harm the respondent is sentenced to a term of imprisonment comprising a non-parole period of 9 months and a balance of term of 9 months to date from 27 October 2008. The non-parole period expires on 26 July 2009. (2) In respect of the second charge of maliciously inflicting grievous bodily harm the respondent is sentenced to a term of imprisonment comprising a non-parole period of 6 months and a balance of term of 10 months to date from 26 April 2009. The non-parole period expires on 25 October 2009. The respondent is to be released to parole on that date. (3) In respect of the assault a sentence of 2 months to date from 27 October 2008 and that expires on 26 December 2008.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/00011292
CAMPBELL JA
GROVE J
HOWIE J
TUESDAY 16 DECEMBER 2008

R v BWJ

Judgment

Campbell JA: The Court is in a position to determine this matter and I will ask Howie J to deliver the first judgment.
HOWIE J: This is an appeal by the Crown in respect of sentences imposed in the District Court by Puckeridge DCJ (the Judge). The respondent pleaded guilty in the Local Court to two offences of maliciously inflicting grievous bodily harm contrary to s 35 of the Crimes Act 1900 and an offence of assault contrary to s 61 of that Act. The maximum penalty prescribed for a s 35 offence is imprisonment for 7 years and, for a s 61 offence, imprisonment for two years. The Judge ordered the respondent to enter into a good behaviour bond for 5 years under s 9 of the Crimes (Sentencing Procedure) Act 1999 in respect of each of the…

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 R v BWJ

Details

AGLC: R v BWJ [2008] NSWCCA 333
Case: [2008] NSWCCA 333
Decision Date: 16 December 2008

CaseChat Overview and Summary

The case of R v BWJ involved a father, BWJ, who pleaded guilty to maliciously inflicting grievous bodily harm upon his child. The Crown appealed against the sentence imposed by the lower court, arguing that the original sentence was manifestly inadequate. The appeal was heard in the higher court, where the Crown sought a more severe penalty for the crime committed against the child.

The central legal issue before the court was whether the original sentence imposed on BWJ was manifestly inadequate, and if so, what alternative sentence should be imposed. The court had to consider the gravity of the offence, the need to protect the community and deter future crimes, and the principles of sentencing relevant to cases involving harm to children. Additionally, the court had to assess whether there were any exceptional circumstances that might warrant a departure from the usual sentencing practices.

In its reasoning, the court noted the severity of the crime and the need for a sentence that adequately reflected the harm caused to the child. The court found that the original sentence did not sufficiently account for the gravity of the offence and the need for community protection. The court emphasised the importance of sending a strong message that such conduct would not be tolerated. After considering the arguments presented by both parties, the court determined that the original sentence was indeed manifestly inadequate and re-sentenced BWJ to a term of full-time custody, ensuring that the sentence aligned with the principles of justice and deterrence.

The court ordered that BWJ be re-sentenced to a term of imprisonment, reflecting the seriousness of the offence and the need to protect the community. The specific length of the sentence was not detailed in the summary but was deemed appropriate given the nature of the crime and the necessity to uphold the principles of sentencing.

Orders