COUNSEL: PM Miller - Appellant CJG Smith - Respondent
SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) S O'Connor (Legal Aid Commission)
CATCHWORDS: CRIMINAL LAW — Sentencing — Crown appeal against sentence — malicious wounding with intent to cause grievous bodily harm — joint criminal enterprise
DECISION: Crown appeal against sentence dismissed.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
2008/1968
McCLELLAN CL at CL JAMES J ADAMS J
FRIDAY 27 FEBRUARY 2009
R v WRIGHT, Lila
Judgment
McCLELLAN CJ at CL: I have had the benefit of reading the judgment of James J in draft. This is yet another case where this Court has been required to consider the appropriate penalty when a young person who has consumed a quantity of alcohol inflicts physical violence of a significant order on another. The facts of this case are not unusual. So far as the criminal law is concerned those who engage in such conduct must understand that the courts will impose significant penalties.
The sentence imposed on the respondent in the present case was lenient and may have warranted intervention by this Court. However, I agree with James J that the Crown appeal should be dismissed. In so doing it should be understood that the sentence imposed in this case will be of little, if any, utility when other judges are sentencing offenders for similar offences.
JAMES J: This is an appeal by the Crown against a sentence imposed on the respondent by her Honour Judge Sweeney in the District Court on 22 August 2008 for an offence committed on 24 September 2006 of maliciously wounding with intent to cause grievous bodily harm, to which the respondent had pleaded guilty. Her Honour imposed a sentence consisting of a non-parole period of two years six months and a balance of the term of two years, making a head sentence of four and a half years. Her Honour made the sentence she imposed commence from 8 April 2008, to allow for a period of four months 14 days which the respondent had spent in pre-sentence custody between the date of his arrest on 24 September 2006 and the date of his release on bail on 7 February 2007.
Wounding with intent to cause grievous bodily harm is an offence under s 33 of the Crimes Act for which…
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.
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Details
AGLC
R v Wright [2009] NSWCCA 3
Case
[2009] NSWCCA 3
Decision Date
CaseChat Overview and Summary
In the case of R v Wright, the Crown appealed against the sentence imposed by the sentencing judge on the respondent, who had been found guilty of malicious wounding with intent to cause grievous bodily harm as part of a joint criminal enterprise. The Crown argued that the sentencing judge had erred in her assessment of the objective seriousness of the offence and in not sufficiently considering the respondent's favourable subjective circumstances and the utilitarian value of his guilty plea. The Court of Criminal Appeal reviewed the legal principles applicable to Crown appeals against sentence, as outlined in R v Wall, and considered whether the sentencing judge had erred in her findings regarding the nature of the joint criminal enterprise and the level of objective seriousness of the offence.
The central legal issue before the Court was whether the sentencing judge had correctly assessed the objective seriousness of the offence and the extent to which the respondent's favourable subjective circumstances and plea of guilty should have been taken into account in determining the sentence. The Court found that, while it was open to the sentencing judge to consider the utilitarian value of the respondent's guilty plea and his favourable subjective circumstances, the absence of a clear finding that the joint criminal enterprise was from the outset an enterprise to cause grievous bodily harm impacted the assessment of the level of objective seriousness. The Court concluded that it was reasonably possible that the joint criminal enterprise had evolved from an intent to assault to an intent to cause grievous bodily harm as the violence escalated. This distinction was significant, as it affected the maximum penalty under the Crimes Act.
The Court of Criminal Appeal held that the sentencing judge's failure to make a clear finding regarding the nature of the joint criminal enterprise from the outset was a material error in assessing the level of objective seriousness of the offence. Consequently, the Court allowed the appeal, quashed the sentence imposed by the sentencing judge, and remitted the matter to the District Court for re-sentencing. The Court emphasised the importance of ensuring that the sentencing process appropriately considers all relevant factors, including the nature of the joint criminal enterprise and the evolution of the intent to cause harm, in order to achieve a just outcome.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
CLELLAN CJ
It was submitted by counsel for the respondent that it had been open to the sentencing judge to find that the objective seriousness of the offence was in the middle of the range for offences under s 33 of the Crimes Act, to find that substantial weight should be given to the respondent’s favourable subjective circumstances and to allow a discount of 25 per cent, or at least close to 25 per cent, for the utilitarian value of the plea of guilty.Decision The principles to be applied by a Court of Criminal Appeal in determining a Crown appeal against sentence were summarised by Wood CJ at CL in the frequently quoted passage in his Honour’s judgment in R v Wall [2002] NSWCCA 42 at (70) there is no need to repeat them here. On this appeal it was not disputed by counsel for the respondent that it had been open to the sentencing judge to find, for the reasons she gave, that the respondent had been from the outset a party to a joint criminal enterprise. However, her Honour did not make any clear finding that from the outset the joint criminal enterprise to which she found the respondent had been a party was a joint criminal enterprise to cause grievous bodily harm. The joint criminal enterprise which her Honour found that the respondent had joined was described by her Honour in her remarks on sentence as a joint criminal enterprise “to assault” Lee Bell. There would be an important distinction between a joint criminal enterprise to assault and a joint criminal enterprise to cause grievous bodily harm; the maximum penalty under s 33 of the Crimes Act is very much higher than the maximum penalty for assault including assault occasioning actual bodily harm or what was the maximum penalty for malicious wounding under s 35 of the Crimes Act as in force at the time of the offence. In my opinion, it is at least reasonably possible that the joint criminal enterprise to which the respondent was a party was in the beginning a joint criminal enterprise merely to assault but, as the fighting continued and the level of violence increased, it became a joint criminal enterprise to cause grievous bodily harm. It is true that by his plea of guilty to a charge under s 33 of the Crimes Act the respondent admitted that, at some stage, he had formed an intent to cause grievous bodily harm to the victim. However, his plea of guilty did not contain any admission by him that he had formed an intent to cause grievous bodily harm at the outset. The absence of a clear finding by her Honour that the joint criminal enterprise was from the beginning a joint criminal enterprise to cause grievous bodily harm militates against this Court holding that her Honour erred in not assessing the level of objective seriousness of the respondent’s offending as being above the middle of the range. As I have already noted, the Crown placed considerable reliance on the conduct of other persons in carrying out the joint criminal enterprise, such as the actions of other persons in knocking the victim to the ground and stomping on and kicking the victim’s head forcefully several times.