R v Wilkinson

Case [2008] SASC 172

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WILKINSON

[2008] SASC 172

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)

4 July 2008

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE

Appeal against sentence - appellant pleaded guilty in the District Court to aggravated serious harm with intent to cause serious harm, aggravated assault causing harm and aggravated harm with intent to cause harm - the aggravating factor was that the victim was the appellant's de facto spouse - appellant had a history of domestic violence against the victim - the second and third offences occurred in breach of bail - sentencing Judge imposed the one sentence for all offending of a term of imprisonment for seven years and eight months with a non-parole period of four years and six months - whether the sentence was manifestly excessive - whether the plea of guilty to aggravated serious harm with intent to cause serious harm was entered into under a misapprehension, and so whether the appellant should be given permission to withdraw his plea - whether the injuries inflicted with respect to this charge caused "serious bodily harm".

Held: appeal dismissed - the injuries sustained by the victim, both physical and psychological, were serious - sentence imposed was within the sentencing Judge’s discretion - there was no error in the approach of the Judge - sentence was not manifestly excessive.

Criminal Law Consolidation Act 1935 (SA) s 5AA, s 20, s 21, s 23 and s 24; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Bail Act 1985 (SA) s 11; Statutes Amendment (Domestic Partners) Act 2006 (SA), referred to.
R v Banens (Unreported, Supreme Court of South Australia, King CJ, Legoe and Von Doussa JJ, 18 November 1987); R v Lennon (2003) 86 SASR 295; R v Gray [1977] VR 225; Readman (1990) 47 A Crim R 181; The Queen v Kain (1985) 38 SASR 309, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"serious bodily harm"

R v WILKINSON
[2008] SASC 172

Court of Criminal Appeal:       Gray, Sulan and White JJ

GRAY J:

  1. This is an appeal against sentence. 

  2. This appeal highlights the serious consequences of domestic violence.  The role of the court when sentencing in the present proceedings brings into sharp focus the need to protect the weak and vulnerable.  The defendant engaged in brutal conduct towards his de facto, a young teenager, in need of effective protection.  Later in these reasons I will discuss the vulnerability and plight of this young victim. 

    The Offence

  3. The defendant and appellant, Benjamin Wilkinson, pleaded guilty in the District Court to the offence of aggravated serious harm with intent to cause serious harm contrary to section 23(1) of the Criminal Law Consolidation Act 1935 (SA).[1]  The offence was alleged to have been committed between 28…

Continue reading R v Wilkinson

Sign in free to access the full text

Details
AGLC
R v Wilkinson [2008] SASC 172
Case
[2008] SASC 172
Decision Date

CaseChat Overview and Summary

In the matter of R v Wilkinson, the appellant, who had a history of domestic violence against his de facto spouse, was convicted in the District Court of aggravated serious harm with intent to cause serious harm, aggravated assault causing harm, and aggravated harm with intent to cause harm. The appellant's sentence of seven years and eight months imprisonment with a non-parole period of four years and six months was appealed on the basis that it was manifestly excessive and that his guilty plea to aggravated serious harm with intent to cause serious harm was entered into under a misapprehension.

The court examined whether the sentence was manifestly excessive and if the plea was entered under a misapprehension. The court found that the injuries sustained by the victim were both physical and psychological and were serious, and that the sentence imposed was within the sentencing Judge’s discretion. The court also found that there was no error in the approach of the Judge, and that the sentence was not manifestly excessive. Furthermore, the court found that the appellant's plea was not entered into under a misapprehension.

The appeal was dismissed, and the appellant was not granted permission to withdraw his plea. The court found that the sentence imposed was appropriate and that there was no basis to interfere with the sentence. The court also found that the appellant's plea was not entered into under a misapprehension, and that the injuries inflicted on the victim amounted to serious harm.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On appeal it was complained that the sentence was manifestly excessive. It was further argued on appeal that the defendant’s guilty plea to the offence against section 23(1) had been entered under a misapprehension. An offence against the section includes the element of serious bodily harm. It was contended that the injuries inflicted with respect to this charge did not cause serious bodily harm and that as a consequence the defendant should be allowed to withdraw his plea. The Facts The defendant first met KS in or about 2002. They formed a relationship which led to KS’s pregnancy and the subsequent birth of their child. She was then aged 13 years. They separated for a period. The defendant was apparently unaware of the pregnancy or the birth of the child. He did not learn of these events until some time after May 2006. The defendant and KS resumed their relationship in or about 2004 and thereafter continued in a de facto relationship until May 2006. It was agreed that the offences committed in May and August 2006 were not isolated incidents of violence. It was further agreed that the offences occurred against a background of domestic violence perpetrated by the defendant upon KS. A declaration of KS outlined the history of domestic violence. KS had been assaulted by the defendant on more occasions than she could remember. However, there were three incidents prior to the present offending that she could recall, each of which led to reports to the police. At some time prior to July 2005, while the defendant and KS were living together, an incident occurred when the defendant continually punched and kicked KS. KS rang 000 but was unable to explain to the police what was occurring. When the police returned the call, the defendant held a gun to the head of KS while she answered the call. KS told the officer that everything was OK and hung up. In July 2005, the defendant punched KS several times to the head and chest. KS sought treatment at the Flinders Medical Centre and reported the matter to the police. In November 2005, the defendant poured alcohol over KS and then punched her in the face and kneed her to the chest. She sought medical treatment and reported the matter to the police. The May 2006 Offending At the time of the May 2006 offending, the defendant was on bail with respect to conduct not associated with KS. The defendant had been earlier charged with two counts of threatening another person with a firearm. The May 2006 offending involved a breach of terms of the defendant’s bail with respect to the firearm charge. The precise circumstances surrounding the incident in May 2006 are unclear. As a result of a closed head injury sustained in the incident, KS has little memory of the detailed circumstances of the incident. According to KS, at about 10.00pm she had gone to collect the defendant from the home of a friend because the defendant was subject to a 10.00pm curfew as a condition of his bail in respect of the earlier charge. The defendant became angry when KS told him that he had to come home because of the curfew requirement. This led to the assault. KS had a general recall of being kicked and punched to her face and chest by the defendant. The defendant claimed to have no memory of the incident but ultimately accepted that he had intentionally caused KS serious bodily injury. Independent witnesses heard KS crying out for her assailant to stop and for help. She was discovered lying on the ground with severe head injuries. At that time the defendant was present but when the others arrived he left the scene claiming that KS was his girlfriend and had been assaulted by a third party.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

When the defendant was first arraigned in December 2006, pleas of not guilty were entered to all counts. In March 2007, the matter was listed for trial in October 2007. On 30 April 2007, the defendant pleaded guilty to count one. On 2 September 2007, the defendant pleaded guilty to the remaining counts. The sentencing Judge made a reduction from a notional head sentence of nine years to a term of seven years and ten months before making a further allowance for time spent in custody. This was a reduction of about 12.5%. Given the relative lateness of the pleas, the lack of any real cooperation with the police and the lack of any evidence of any real remorse or contrition, this reduction was within the Judge’s discretion. Conclusion A sentence of seven years and eight months with a non-parole period of four years and six months is a substantial sentence to be imposed on a young man facing immediate imprisonment for the first time. However, it is to be borne in mind that this sentence was the one sentence for all offending. The sentence imposed was within the sentencing Judge’s discretion. There was no error in the approach of the Judge. No basis has been shown to interfere with the sentence. The sentence was not manifestly excessive. This appeal should be dismissed. SULAN J: I would dismiss the appeal against sentence and I would refuse the appellant permission to withdraw his plea in respect of count 1. I agree with the reasons of Gray J. WHITE J: I agree, generally for the reasons given by Gray J, that the appeal against conviction should be dismissed. The submissions on appeal raised issues about the proper construction of the definition of “serious harm” in s 21 of the Criminal Law Consolidation Act 1935 (SA). However, it is not necessary presently to engage in a detailed examination of the definition as, on whatever view is taken, the injuries inflicted on the victim in this case amounted to serious harm. Some of the issues about the definition which were raised in the course of counsels’ submissions may have to be addressed in a later appeal. I agree that the appeal against sentence should be dismissed. Subject to one matter I also agree generally with the reasons of Gray J on this appeal. The circumstances of the appellant’s release on bail in July 2006, and the supervision afforded to him while on bail, were not the subject of evidence or submissions before the sentencing judge, or before this Court. In those circumstances I would prefer not to make any comment about that matter.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.