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R v Westerman

R v Westerman

Case [2004] NSWCCA 161 17 May 2004

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CITATION: R v WESTERMAN [2004] NSWCCA 161

HEARING DATE(S): 17 May 2004

JUDGMENT DATE:
17 May 2004

JUDGMENT OF: Spigelman CJ at 23; Hulme J at 1; Adams J at 24

DECISION: See paragraph 22

PARTIES :
Regina
Justin Westerman

FILE NUMBER(S): CCA 60494/03

COUNSEL: Crown: R Cogswell SC
Appellant: PM Winch

SOLICITORS: Crown: S Kavanagh
Appellant: S O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/61/0004

LOWER COURT
JUDICIAL OFFICER : Gibson DCJ

- 5 -

60494/03

Monday, 17 May 2004

R v JUSTIN DAVID WESTERMAN

Judgment

1 HULME J: The Appellant pleaded guilty to a charge of maliciously inflicting grievous bodily harm and, on 9 May 2003 was sentenced by Judge Gibson to imprisonment for 7 years such term to include a non-parole period of 5 years. Both periods were directed to commence on 30 January 2003.

2 The offence is one created by s 35(b) of the Crimes Act which provides for a maximum penalty of seven years’ imprisonment.

3 The victim of the offence was a five year old boy, the son of a woman with whom the appellant was, and had been for a period of months, living.

4 Evidence before the sentencing judge made it apparent that the child had been beaten very severely and extensively. Judge Gibson described it as “unmercifully”. The injuries inflicted included multiple bruises to the victim’s face, both ears, neck, arms, shoulders, back and buttocks, many of the bruises being also associated with what was described as “significant soft tissue swelling”. There was an eight centimetre tender boggy swelling over the centre of the forehead extending down the nasal bridge and petechial haemorrhages inside the right side of the mouth.

5 There was extensive bruising over the entire left cheek. There were also multiple abrasions above and below both eyes and extending onto the cheeks and onto one side of the victim’s nose.

6 The precise circumstances in which the injuries came to be inflicted were not established but it would seem from observation of the victim by his teacher and other strangers to the household, that the victim was relatively uninjured on the afternoon of 14 March and exhibited the injuries the next morning. Although originally suggesting the injuries may have occurred due to falls in the shower on the morning of 15 March, his mother ultimately denied any knowledge of any incident during the night of 14/15 March which could have accounted for them. The appellant provided no explanation.

7 The sentencing judge was asked to take into account a further offence of an assault occasioning actual bodily harm occurring on 14 March 2001. The circumstances of this incident were that the appellant kicked the child once in the lower back as the child walked with his mother and the offender down the street. Some bruising to the victim’s lower back was caused by this assault.

8 The appellant had originally been charged with more serious offences but after expert…

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 Westerman

Details

AGLC: R v Westerman [2004] NSWCCA 161
Case: [2004] NSWCCA 161
Decision Date: 17 May 2004

CaseChat Overview and Summary

The appeal heard by the NSW Court of Criminal Appeal in R v Westerman involved Justin David Westerman, who had been convicted of maliciously inflicting grievous bodily harm on a five-year-old boy, resulting in severe and extensive injuries. The appellant was sentenced by Judge Gibson to imprisonment for 7 years, with a non-parole period of 5 years, both periods to commence on 30 January 2003. Westerman appealed against the sentence on the grounds that it was excessive, and the Court of Criminal Appeal was required to determine whether the sentence was appropriate given the nature of the offence and the appellant's plea of guilty.

The Court considered the extensive injuries inflicted on the child, which included multiple bruises and significant swelling, as well as a previous assault on the child. The appellant's history of drug addiction and criminal activity, but lack of violent offences, was also taken into account. The Court acknowledged the appellant's guilty plea but declined to apply the usual 25% discount due to the severity of the crime. However, the Court found that the case did not warrant the classification as a "worst case" scenario, and therefore, the sentence should be reconsidered. The Court decided that the appellant was entitled to a discount for his plea, which should be towards the top of the range established in R v Thomson and Houlton. After considering the plea, the Court determined that a head sentence of four years with a non-parole period of three years was appropriate.

The NSW Court of Criminal Appeal allowed the appeal, quashed the original sentence imposed by Judge Gibson, and imposed a new sentence of four years imprisonment with a non-parole period of three years, both periods to commence on 30 January 2003. Spigelman CJ, Hulme J, and Adams J all agreed with the decision. The Court's judgment highlighted the importance of considering both the severity of the crime and the appellant's plea when determining an appropriate sentence.

Orders