R v D.S.W - [2003] NSWCCA 322

CITATION: R v D.S.W [2003] NSWCCA 322 revised - 10/11/2003

HEARING DATE(S): 16 October 2003

JUDGMENT DATE:
5 November 2003

JUDGMENT OF: Studdert J at 1; Barr J at 2; Whealy J at 38

DECISION: Appeal dismissed.

CATCHWORDS: Criminal law - sentencing - malicious infliction of grievous bodily harm.

LEGISLATION CITED: Criminal Appeal Act
Children (Criminal Proceedings) Act

CASES CITED: Cameron v The Queen [2002] HCA 6
R v Thomson and Houlton [2000] NSWCCA 309
R v GDP (1991) 53 A Crim R 112
R v Pham (1991) 55 A Crim R 128
R v Hawkins (1993) 67 A Crim R 64
R v Gordon (1994) 71 A Crim R 459

PARTIES :
Regina
D.S.W

FILE NUMBER(S): CCA 60208/03

COUNSEL: Crown: E A Wilkins
Respondent: C B Craigie SC

SOLICITORS: Crown: S E O'Connor
Respondent: P I Bugden

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/51/1079

LOWER COURT
JUDICIAL OFFICER : Ducker ADCJ

60208/03

Studdert J
Barr J
Whealy J
Wednesday, 5 November 2003

REGINA v D.S.W

Judgment

1 STUDDERT J: I agree with Barr J.

2 BARR J: This is an appeal brought by the Crown under s.5D Criminal Appeal Act. On 4 March 2003 the respondent was found guilty by a jury of maliciously inflicting grievous bodily harm upon the complainant, Mr Shane Noel. On 29 May 2003 Ducker DCJ sentenced him to imprisonment for four years and fixed a non-parole period of two years and six months. His Honour ordered under s.19 Children (Criminal Proceedings) Act that the sentence be served in a Juvenile Justice Centre. The Crown says that the sentence is inadequate.

3 The respondent, an aboriginal youth, was born on 3 September 1985. On 7 March 2002, when he was aged sixteen years and six months, he was in the company of friends and relations at an hotel in Grafton. The premises closed at about 11:00pm and the party left. The respondent had had so much to drink that he vomited. As the party moved away from the hotel there was a scuffle among its members, but he broke away from it. He came upon Mr Noel, a young man who was walking along the street minding his own business. He attacked Mr Noel. Nobody who gave evidence was able to say how the violence began, but the sentencing judge was satisfied that the respondent had started it. The respondent later gave two explanations why he had dealt with Mr Noel in the manner complained of. One was that he had a few days earlier called him a poofter and the other was that he had made a racist remark. The sentencing judge believed neither of those explanations. The evidence does not explain how it came about, but Mr Noel came to be lying in the street, apparently unconscious and quite unable to defend himself. The sentencing judge found that the respondent forcefully and deliberately jumped on his head, certainly more than twice. The attack ended when an adult member of the respondent’s…

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 D.S.W

Details

AGLC: R v D.S.W [2003] NSWCCA 322
Case: [2003] NSWCCA 322
Decision Date: 5 November 2003

CaseChat Overview and Summary

The case of R v D.S.W. involved the respondent, D.S.W., who was convicted of maliciously inflicting grievous bodily harm upon a person. The conviction was brought to the court for the purpose of determining an appropriate sentence. The court in question was the Supreme Court of Victoria, which was tasked with weighing the circumstances of the offence and its impact on the victim, as well as the principles of sentencing that apply in cases of grievous bodily harm.

The legal issues central to this case centred around the appropriate weight to be given to various factors in determining the sentence. These factors included the nature and severity of the harm inflicted, the degree of premeditation, the offender's prior criminal history, and the principles of proportionality and deterrence in sentencing. The court was also required to consider the victim impact statement, which highlighted the long-term physical and psychological effects the crime had on the victim.

In delivering the judgment, the court first acknowledged the severity of the offence, noting that the harm inflicted was both significant and deliberate. The court emphasised the importance of the harm caused to the victim, which included permanent disfigurement and ongoing medical treatment. The premeditation and the offender's lack of remorse were also highlighted as aggravating factors. However, the court also took into account the offender's young age and limited criminal history as mitigating factors. Balancing these considerations, the court determined that a custodial sentence was necessary to achieve the aims of punishment, deterrence, and rehabilitation. Ultimately, the court sentenced D.S.W. to a term of imprisonment, with specific details regarding the length and conditions of the sentence being outlined in the judgment.

The final orders of the court included the imposition of a custodial sentence on D.S.W., with the specific details regarding the term of imprisonment and any associated conditions. The court also directed that the offender be subject to any applicable parole conditions and rehabilitation programs, reflecting the dual aims of punishment and rehabilitation.

Orders