R v McNamara

[2002] NSWCCA 318

CITATION:	R v McNamara [2002] NSWCCA 318
FILE NUMBER(S):	CCA 60856/01
HEARING DATE(S):	30 July 2002
JUDGMENT DATE:	30 July 2002
PARTIES :	Regina Glenn Ernest McNamara
JUDGMENT OF:	Sperling J at 1, 20; Greg James J at 19

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/31/0312
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

COUNSEL :	Mr P G Ingram for the Crown Mr G F Jauncey for the Applicant
SOLICITORS:	Mr S E O'Connor for the Director of Public Prosecutions Stewart Percy & Associates for the Applicant
CATCHWORDS:	Criminal Law - application for leave to appeal against sentence - no question of principle
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999, s50
DECISION:	1. Grant the application for leave to appeal; 2. Allow the appeal; 3. Set aside the sentence; 4. Re-sentence the applicant to imprisonment for a period of two years and nine months commencing on 20 November 2001 with a non-parole period of one years and six months expiring on 19 May 2003; 5. Order that the applicant be released on parole at the end of the non-parole period.

- 4 -IN THE COURT OF

60856/01

Sperling J
Greg James J

Tuesday, 30 July 02

R v McNamara

Judgment

1 Sperling J: The applicant seeks leave to appeal against a sentence imposed by Kinchington DCJ sitting in the District Court on 20 November 2001.

2 The applicant pleaded guilty at the earliest possible time to a charge of maliciously inflicting grievous bodily harm within intent to do grievous bodily harm. The maximum penalty for the offence is twenty five years.

3 On 20 November 2001 his Honour sentenced the applicant to a term of imprisonment of four years with a non parole period of one year and nine months, having found special circumstances.

4 The applicant submits that the sentencing judge failed to have sufficient regard to the following subjective features of the case: demonstrated rehabilitation, the plea of guilty and the effect of the sentence on the applicant’s family. It is also a ground of appeal that the sentence is manifestly excessive.

5 The facts of the case may be summarised as follows. The applicant was drinking at a hotel at Moree on 3 June 2001. Mr D McQuilty, the victim, was also drinking at the hotel with his girlfriend. The victim’s girlfriend was known to the applicant. Mr McQuilty was not. The applicant was intoxicated. The applicant had little memory for the episode and could not explain his conduct in retrospect.

6 It appears that the applicant attacked the victim utterly without provocation, punching him on the right shoulder. In the struggle which ensued, the applicant bit the victim’s right hand causing what appears to have been a superficial injury. The two were pulled apart but the applicant attacked the victim again and, this time, during the struggle, bit a portion from the victim’s nose exposing the bone. The victim was hospitalised for four days, underwent a skin graft, and at the time of sentencing required further surgery.

7 Those facts indicate serious objective features of the offence. It is further to be recognised, however, that grievous bodily harm imputes really serious injury. In that context, it has to be said that the injury inflicted in this case was by no means at the upper end of the range of injuries that are seen in relation to this offence.

8 There were strong subjective features in favour of the applicant. The applicant was thirty one years of age at the time of the offence. He was, at the time of the offence, addicted to alcohol, drinking to excess every day. That is not a mitigating factor. But he has not had a drink since the date of the offence. He had, prior to sentence, undergone rehabilitation treatment and had joined Alcoholics Anonymous. At the time of the offence, he was separated from his wife because of his alcohol addiction. They had since been reconciled, once the applicant had given up alcohol, and were now living together again.

9 One of the applicant’s children had a moderate intellectual disability and was hyperactive. He had difficulty understanding directions and did not take kindly to discipline. He needed constant supervision at home. The child reacted better to the applicant than he did to others.

10 There was no history of prior violent behaviour. There was a conviction for stealing in 1993 for which the applicant was fined $400. The sentencing judge, correctly, said he would not take that into account against the applicant.

11 Although the applicant would have been apprehended in any event because he was known to the victim’s girlfriend, the fact that the applicant handed himself in to the police was positive evidence before the sentencing judge of remorse and contrition.

12 Other evidence showed that the applicant was held in high regard by others and, since giving up alcohol, by his own family.

13 His Honour noted that the applicant’s family was in need of assistance in relation to the child to whom I have referred but did not think that the consideration was sufficient to avoid having to impose a custodial sentence. I have to say that I would not regard this aspect of the case as relevant at all, in view of the decisions of this Court which lay down that hardship to family members can be taken into account only where the circumstances are highly exceptional.

14 The applicant was entitled to a discount for the early plea in the order of twenty percent.

15 The steps taken by the applicant to rehabilitate himself provided a strong argument for leniency. This factor substantially reduced the need for punishment to deter the applicant from offending further in a similar way.

16 Notwithstanding the serious nature of the offence, the subjective features of this case are sufficiently strong to satisfy me that the sentence imposed was excessive. I would set the sentence aside and re-sentence the applicant.

17 I would begin with a head sentence of three years and six months discounted to a sentence of two years and nine months for the plea of guilty. That is approximately a twenty percent discount. I would find special circumstances for the reasons given by the sentencing judge. I would fix a non-parole period of one year and six months. Pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999, there would be an order directing the release of the applicant on parole at the end of the non-parole period.

18 I would make the following orders:

1. Grant the application for leave to appeal.

2. Allow the appeal.

3. Set aside the sentence.

4. Re-sentence the applicant to imprisonment for a period of two years and nine months commencing on 20 November 2001 with a non-parole period of one years and six months expiring on 19 May 2003.

5. Order that the applicant be released on parole at the end of the non-parole period.

19 Greg James J: I agree with the orders proposed by the learned presiding judge and the reasons that he gives therefor.

20 Sperling J: The orders of the court then will be as I have proposed.

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