R v Wilson No. Sccrm-02-254

[2002] SASC 322

R  v  WILSON
[2002] SASC 322

Court of Criminal Appeal:  Doyle CJ, Debelle and Williams JJ (ex tempore)

1. DOYLE CJ:            This is an application for leave to appeal against sentence.

2. A judge granted leave limited to grounds that raised the question of the length of the non-parole period. He refused leave to appeal on grounds that raised the length of the head sentence, and the refusal to suspend the sentence.

3. The applicant has requested that the Full Court consider his application for leave to appeal. The Full Court ordered that the application be listed for oral argument.

4. The applicant pleaded guilty to a charge of unlawfully inflicting grievous bodily harm, for which the maximum sentence is five years imprisonment. He also pleaded guilty to a charge of endangering life, for which the maximum sentence is 15 years imprisonment. Finally, he pleaded guilty to two counts of damaging property to the value of about $12000.

5. All of the charges arose from one incident. The applicant was affected by alcohol. He was refused service at a hotel. He thought he was being discriminated against, although it seems there was no basis for that belief. He left the hotel and returned a little later. He threw what is called a lighted Molotov cocktail at a woman whom he may have thought got favourable treatment compared with him. He then damaged the hotel property.

6. The first two offences, even if regarded as one incident as they probably should be, were shocking crimes. The unfortunate woman suffered serious burns. She still suffers, not surprisingly, in various ways as a result of the applicant’s conduct. The judge imposed a single sentence of imprisonment for eight and a half years and fixed a non-parole period of five and a half years. He allowed for time in custody. But for the time in custody, the head sentence would have been nine years and the non-parole period eight years.

7. The applicant was to be sentenced on the basis that there was no intent to cause grievous bodily harm or to endanger life. It was a case of reckless indifference, perhaps attributable to the applicant’s state of intoxication.

8. The judge did not say precisely what sentence he would have imposed but for the plea of guilty. He indicated it would be in the range 10 years to 15 years.

9. The applicant is 33 years of age. He has a long record of minor offences. He has a disturbed upbringing. He is seriously ill and is likely to die during the non-parole period of five and a half years. The judge said the plea of guilty came late. That suggests that the actual starting point was about 11 years or 12 years.

10. The head sentence can be regarded as heavy, bearing in mind that the two offences involving the woman were a single incident, but one cannot overlook the fact that there were the two offences and that there was also the damage to property. However, as I said, this was a truly shocking crime. The victim had nothing to do with the applicant, and had not been in any way involved with him. The harm caused to her was serious.

11. Even allowing for everything in mitigation, including the state of the applicant’s health, my firm view is that the submission that the sentence should be suspended has no prospect of success at all.  I would refuse leave as to the grounds raising that issue.

12. However, as to the head sentence, in light of the matters raised by Mr Cuthbertson and in particular his reliance on the decision in TheQueen v  Muelhe and Goggs [2000] SASC 262, I accept that the challenge to the head sentence is arguable and, accordingly, I would grant leave to appeal on that ground.

13. Accordingly, in my opinion it is appropriate to refuse leave to appeal on the ground that raises the question of suspension, but to grant leave on the ground that raises the length of the head sentence.

14. DEBELLE J:          I agree with the orders proposed by the Chief Justice and his reasons for those orders. I especially endorse his remarks as to the non-arguability of the application for leave to appeal against the refusal to suspend the sentence.

15. WILLIAMS J:        I agree.

16. DOYLE CJ:            Accordingly, the order of the court is as follows: that leave to appeal be granted on sub-paras.1 and 2 in ground 1 of the grounds of appeal, and that leave to appeal be refused on ground 2 of the grounds of appeal.