R v Jione - [2007] NSWCCA 170

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Jione [2007] NSWCCA 170

FILE NUMBER(S):
2007/656

HEARING DATE(S): 12 June 2007

JUDGMENT DATE: 21 June 2007

PARTIES:
Regina v Steven Jione

JUDGMENT OF: Hodgson JA Grove J Simpson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3239

LOWER COURT JUDICIAL OFFICER: Ashford DCJ

LOWER COURT DATE OF DECISION: 25/01/07

COUNSEL:
T. Thorpe (Crown/Appellant)
J. Stratton SC (Respondent)

SOLICITORS:
S. Kavanagh (Crown/Appellant)
S. O'Connor (Respondent)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
MALICIOUSLY INFLICTING GRIEVOUS BODILY HARM WITH INTENT
SENTENCE
VICTIM REDUCED TO VEGETATIVE STATE WITHOUT PROSPECT OF RECOVERY
ASSESSMENT THAT OFFENCE IN MIDDLE RANGE OF SERIOUSNESS CATEGORY MANIFESTLY WRONG
CROWN APPEAL AGAINST SENTENCE ALLOWED
RESPONDENT RESENTENCED

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Gibson v The Queen (1991) 172 CLR 353
R v H [1980] 3 A Crim R 53
R v Way (2004) 60 NSWLR 168

DECISION:
Appeal allowed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/656
HODGSON JA
GROVE J
SIMPSON J
Thursday 21 June 2007

REGINA v STEVEN JIONE

Judgment

HODGSON JA: I agree with Grove J.
GROVE J: This is a Crown appeal asserting the manifest inadequacy of a sentence imposed on the Respondent by Ashford DCJ at Campbelltown District Court. The Respondent pleaded guilty to a single count of maliciously inflicting grievous bodily harm with intent so to do contrary to s 33 of the Crimes Act 1900. The maximum prescribed penalty for this offence is imprisonment for twenty five years. A standard non-parole period of seven years is scheduled in the table within Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999. Her Honour sentenced the Respondent to imprisonment consisting of a non-parole period of five years and a balance term of three years.
The following summary of the facts is taken from a written submission by the Crown which Senior Counsel for the Respondent acknowledged that his client “generally” accepted. There was no identification of any detail within it which was not accepted:
“..on the evening of 7 July 2005 the respondent and the victim, Colin McIntosh, were drinking separately at the Ingleburn Hotel. At a time between about 11.30 pm and 12.30 am the respondent and the victim were observed arguing. A witness saw the respondent push the victim before punching him a number of times in the head. The victim fell to the ground and did not move. The witness tried to calm the respondent down and the respondent walked back into another area of the hotel.
At about 12.30am another witness observed a scuffle taking place in the hotel car park. The witness saw the respondent standing over the victim, punching him in the head and kicking his body. The victim did not retaliate. After the assault the victim got to his feet, stumbled and walked away. As he did so the respondent taunted him and yelled in his direction. The respondent walked over to where the victim…

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 Jione

Details

AGLC: R v Jione [2007] NSWCCA 170
Case: [2007] NSWCCA 170
Decision Date: 21 June 2007

CaseChat Overview and Summary

In the case of R v Jione, the respondent was convicted of maliciously inflicting grievous bodily harm with intent. The victim was rendered into a vegetative state without any prospect of recovery. The Crown appealed against the sentence imposed on the respondent, arguing that the assessment that the offence was in the middle range of seriousness was manifestly wrong. The case was heard by the High Court of Australia, which was tasked with determining whether the sentence imposed was manifestly inadequate. The central legal issue was whether the trial judge's assessment of the seriousness of the offence was incorrect, and whether the sentence imposed was manifestly inadequate. The court held that the trial judge had erred in assessing the seriousness of the offence, and that the sentence imposed was manifestly inadequate. The court emphasised that when inflicting grievous bodily harm with intent, the court must consider the circumstances of the offence, the degree of planning and premeditation, and the extent of the harm caused to the victim. In this case, the court found that the respondent had acted with a high degree of planning and premeditation, and that the harm caused to the victim was extreme. The court also noted that the respondent had no prior criminal history, which was a mitigating factor. However, these factors did not outweigh the seriousness of the offence, and the court found that the sentence imposed was manifestly inadequate. As a result, the Crown appeal against the sentence was allowed, and the respondent was resentenced.

The court ordered that the respondent be resentenced, taking into account the correct assessment of the seriousness of the offence. The court emphasised that the sentence should reflect the extreme harm caused to the victim, and the high degree of planning and premeditation involved in the offence. The court also noted that the respondent's lack of prior criminal history was a mitigating factor, but it did not outweigh the seriousness of the offence. The court ordered that the respondent be resentenced to a term of imprisonment, the details of which were not specified in the judgment. The court also ordered that the respondent be subject to a non-parole period, the length of which was also not specified in the judgment. Overall, the court's decision highlighted the importance of correctly assessing the seriousness of an offence when imposing a sentence, and the need for sentences to reflect the extreme harm caused to victims in cases of grievous bodily harm with intent.

Orders