Walker v Regina

[2006] NSWCCA 347

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Walker v Regina [2006]  NSWCCA 347

FILE NUMBER(S):
2006/1601

HEARING DATE(S):               1 November 2006

DECISION DATE:     01/11/2006
EX TEMPORE DATE:          01/11/2006

PARTIES:
John Walker
Regina

JUDGMENT OF:       Spigelman CJ Sully J Hislop J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          05/21/1151

LOWER COURT JUDICIAL OFFICER:     Knight DCJ

COUNSEL:
D. Frearson SC - Crown
D. Brezniak - Appellant

SOLICITORS:
S. Kavanagh - Crown
S. Cole - Appellant

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900 (NSW)

DECISION:
Leave to appeal against sentence granted
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/1601

SPIGELMAN CJ
SULLY J
HISLOP J

1 November 2006

John WALKER  v  REGINA

Judgment

1. SULLY J:  The applicant, Mr Walker, applies for leave to appeal against a sentence of imprisonment that was passed upon him in the Penrith District Court on 7 April 2006.  The applicant had earlier pleaded guilty in that Court to a charge of having maliciously attempted to wound his then wife with intent to do grievous bodily harm to her. 

2. The combined effect of ss 33 and 344A of the Crimes Act 1900 entails that the statutory maximum penalty for such an offence is imprisonment for twenty-five years. The sentence in fact passed upon the applicant was one of imprisonment for a non-parole period of one year, four months and twenty-four days, with a total term of two years, ten months and twenty-two days. Those calculations allowed for some thirty-seven days of pre-sentence custody, and it is convenient for present purposes to understand that the head sentence was one of three years, and the non-parole period was one of eighteen months. It then becomes apparent that the learned sentencing Judge found special circumstances. In my respectful opinion that finding was amply justified upon the basis of the evidence before his Honour, and nothing more need to be said, for present purposes, about that particular aspect of the sentence.

3. The incident giving rise to the charge was one that emerged out of a matrimonial breakdown.  The applicant and his then wife had been married for some fifteen years.  Shortly before the day on which the particular offence was committed, the wife had told the applicant that she no longer loved him, that she was seeing another man, and that as far as she was concerned their marriage was at an end.  That situation festered - if I may use that expression - for some few days, until the occasion on which the particular offence with which we are now concerned took place.

4. There was an extended and very ugly altercation between the applicant and his then wife. Part of it took place in a bedroom in the matrimonial home and part of it took place in the hallway of that home.

5. In the bedroom the applicant beat his wife and attacked her with a thirty-two centimetre long kitchen knife.  The blade of the knife seems to have made some contact with the neck of the victim, but there was at that stage of the altercation no wounding in any particular legal sense; and the learned sentencing Judge, who saw and heard both the applicant and the wife, made a finding, which seems to me to have been open to his Honour, that at least at that stage of affairs there had been no intent on the part of the applicant to do any serious injury to his wife. 

1. The altercation then moved into the hallway of the home, and once again, and putting the matter simply, the applicant again attempted to attack his wife with the knife.  She had got hold of the knife in the bedroom and had run from the bedroom holding the knife between the palms of her hands, with the handle of the knife pointing away from her and its blade pointing, therefore, towards her.  He struggled with her, seeking to get back control of the knife, and on the version of the facts which the learned sentencing Judge was entitled to accept, and did accept, the applicant sought to take hold of the handle of the knife and to push the knife towards - and deliberately towards - the wife’s body.  She had the presence of mind to take hold of the blade and to bend it so that its point was bent away from her body.  And so matters proceeded, until he having again pursued and beaten her, she was able to make good her escape and go to the home of her parents who lived in the adjoining premises. 

1. The first thing that the learned sentencing Judge had to assess was the objective criminality of the offence as I have briefly described it.  His Honour took the view that the objective criminality of the offence was very serious.   His Honour was cognisant of the fact that the context in which the offence had occurred was that of a matrimonial breakdown.  His Honour emphasised, as various Benches of this Court have emphasised for many years, that however sad and distressing in a particular case a matrimonial breakdown might be, the one thing that cannot be tolerated is a view that violence of any kind, let alone violence of the kind that I have described, is somehow to be accepted as a more or less natural incident of such a breakdown.  The law is clear and it is to the contrary of that view.  His Honour was cognisant of that state of affairs and, in my respectful opinion, correctly gave weight to that view in the opinion that his Honour formed of the objective criminality of the offence with which he was dealing.

2. It is the case that the applicant stood for sentence with the benefit of a substantial subjective case.  He was a man aged some forty-one years.  He had been married for some fifteen years. He had two teenage children.  His employment record was described by the sentencing Judge as having been exemplary.  He had no criminal antecedents and his good character otherwise was amply vouched for by witnesses who were accepted by the learned sentencing Judge as people in a position to assess that matter. 

3. There was evidence, which his Honour accepted, to the effect that at the material time the applicant had been suffering from a form of depression with melancholic incidents, and that that condition was apt to have explained, at least to some extent, the extreme violence of his behaviour on the occasion in question.  It is not contended, and in my view could not sensibly be contended, that his Honour either did not understand what the relevant subjective matters were, or did not give careful and appropriate weight to each of them, and to all of them in the aggregate.

4. His Honour was then required to bring into balance, in accordance with proper principle, the objective criminality, serious as his Honour had found it to be, and the mitigating effect of the strong subjective case.  A submission was put to his Honour that the balance ought to be struck in such a way as issued in a sentence other than a full time custodial sentence.  His Honour did not agree and expressed pithily, and as follows, the reasoning for his attitude.  His Honour said:

   “It seems to me that the nature of this offence was such that any right-thinking member of the community would be appalled by it.  And as I have said, when one looks at this as a case of domestic violence - which in truth it was - and applies the principles set forth in cases such as the R v Dunn, that any sentence other than one of a full time custodial nature would be totally inappropriate.”

5. It is contended that there is error in that reasoning.  I do not agree.  It seems to me that the reasoning is completely logical and completely in accord with principles clearly established by antecedent authorities in this Court.

6. A number of grounds of appeal have been notified.  I intend no disparagement of any in particular of them if I say that in my opinion it is not necessary in the circumstances of this case to canvass in detail each of the individual grounds of appeal. For it seems to me that all of them are but individual reflections of a central proposition: that the sentence passed by his Honour was manifestly excessive in the requisite legal sense.

7. Having considered the objective criminality of the offence; having considered too the subjective case available to the applicant, both in the Court below and in this Court; I am wholly unpersuaded that there was any error in the approach taken by his Honour, or that there is any error in the end result to which his Honour came. 

8. For the whole of those reasons I would grant leave to appeal against sentence.  I would dismiss the substantive appeal.

9. SPIGELMAN CJ:  I agree.

10. HISLOP J:  I also agree.

11. SPIGELMAN CJ:  The order of the Court is that leave to appeal is granted, but the appeal is dismissed.

**********

LAST UPDATED:               06/11/2006