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Waterfall v R

Waterfall v R

Case [2019] NSWCCA 281 25 November 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Waterfall v R [2019] NSWCCA 281
Hearing dates: 9 October 2019
Date of orders: 25 November 2019
Decision date: 25 November 2019
Before: Macfarlan JA at [1]
Johnson J at [2]
Cavanagh J at [3]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords: Crime — appeals — appeal against sentence — application for leave to appeal — recklessly inflict grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW) — whether sentencing judge erred in assessment of objective seriousness of the offence — no principle that the nature of injuries sustained necessarily determines the assessment of objective seriousness — where offender was correctional officer in position of trust and authority over the victim who was an inmate — whether sentence imposed was manifestly excessive — not demonstrated that sentence was unreasonable or plainly unjust
Legislation Cited: Crimes Act 1900 (NSW), ss 33, 35
Crimes (Administration of Sentences) Act 1999 (NSW), s 2A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(k)
Cases Cited: Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
House v R (1936) 55 CLR 499; [1936] HCA 40
McCullough v R [2009] NSWCCA 94; 194 A Crim R 439
Mulato v R [2006] NSWCCA 282
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Channells (Court of Criminal Appeal (NSW), Hunt CJ at CL, Ireland and Dunford JJ, 30 September 1997, unrep)
R v Lamella [2014] NSWCCA 122
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
Stevens v R [2017] NSWCCA 216
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Simon Glen Waterfall (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms C Wasley (Applicant)
Ms K Jeffreys (Respondent)
Solicitors:
Proctor & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/26543
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

6 July 2017

Before:

Culver DCJ

File Number(s):

2014/26543

Judgment

MACFARLAN JA: I agree with Cavanagh J.
JOHNSON J: I agree with Cavanagh J.
CAVANAGH J: By notice of application for leave to appeal filed on 5 July 2019, the applicant seeks leave to appeal from a sentence imposed by the District Court at Parramatta on 6 July 2017 with respect to one count of recklessly inflict grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW). The applicant was charged with and pleaded not guilty to three counts relating to an alleged assault on Robert Stines (“the victim”) on 26 December 2013 whilst the victim was an inmate at Parklea Correctional Centre. The applicant was at the time a correctional officer employed by GEO Group Pty Ltd, being a private contractor to manage the Parklea Correctional Centre.
The applicant was found not guilty of the first charge of causing grievous…

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 Waterfall v R

Details

AGLC: Waterfall v The Queen [2019] NSWCCA 281
Case: [2019] NSWCCA 281
Decision Date: 25 November 2019

CaseChat Overview and Summary

In this matter, the appellant, Waterfall, appealed against his sentence imposed by the Supreme Court of New South Wales. Waterfall had been found guilty of recklessly inflicting grievous bodily harm on an inmate while he was a correctional officer, contrary to section 35(2) of the Crimes Act 1900 (NSW). The primary issue before the court was whether the sentencing judge had erred in assessing the objective seriousness of the offence, particularly in light of the appellant’s position of trust and authority over the victim. Additionally, the court had to determine if the sentence imposed was manifestly excessive and whether it was unreasonable or plainly unjust.

The court held that there is no principle which dictates that the nature of the injuries sustained by the victim necessarily determines the assessment of the objective seriousness of the offence. Instead, the court emphasised the importance of considering the context of the offence, including the offender’s position of trust and authority over the victim. The court found that the sentencing judge had appropriately considered these factors in assessing the objective seriousness of the offence and concluded that the sentence imposed was neither unreasonable nor plainly unjust. Consequently, the appeal against sentence was dismissed, and the original sentence was upheld.

The court’s reasoning focused on the need to balance the objective seriousness of the offence with the offender’s position of trust and authority. It was determined that the sentencing judge had correctly applied the relevant principles in assessing the severity of the offence and had imposed a sentence that was commensurate with the gravity of the crime. The court also found that the sentence did not constitute an abuse of discretion and did not amount to a manifestly excessive penalty. The appellant’s application for leave to appeal was therefore denied.

Orders