One further matter - D e Simoni
46 In the course of argument a further issue was raised by the applicant. The applicant was convicted of malicious wounding with intent to cause grievous bodily harm contrary to s 33 of the Crimes Act. That section in the form relevant at the time of the offence was as follows:
"Whosoever:
maliciously by any means wounds or inflicts grievous bodily harm upon any person, or
maliciously shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, with intent in any such case to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detainer either of himself or herself or any other person,
shall be liable to imprisonment for 25 years."
47 The applicant submitted that accordingly the section created "at least four separate offences" the actus reus of each being malicious wounding, malicious infliction of grievous bodily harm, malicious shooting at any person and attempting to discharge any loaded firearm. The section was submitted to be similar to section 35 of the Act discussed by this Court in McCullough v R (2009) NSWCCA 94. If not four offences it was submitted that at the very least section 33 creates two separate offences of malicious wounding and malicious infliction of grievous bodily harm being offences primarily, although not exclusively, focused on the result of the offence. Accordingly it was submitted that because the applicant was charged with "malicious wounding" any injury which amounts to grievous bodily harm must be disregarded when considering the objective severity of the offence.
48 In McCullough the offender was charged with an offence contrary to s 35 of the Crimes Act pleaded as the malicious wounding of a person, being the offence identified in s 35(1)(a). During the course of a sustained assault the victim was wounded but also suffered a fracture to her wrist, which was unrelated to the wounding and objectively more serious. This Court held that the sentencing judge was not entitled to take into account the injuries constituting the infliction of grievous bodily harm which were more serious than the wounding. The principles defined by the High Court in R v De Simoni (1981) 147 CLR 383 confined the facts which were relevant when sentencing for the wounding offence.
49 The form of s 33 of the Crimes Act is different to that of s 35 and it is arguable that whether the victim's wounds constitute wounding or grievous bodily harm is not significant, provided of course that the seriousness of the injuries are appropriately recognised when determining the seriousness of the offence in the sentencing process. Whether charged as malicious wounding with intent to inflict grievous bodily harm or maliciously inflicting grievous bodily harm with intent so to do, there may be one offence although the relevant facts, including the injuries inflicted in a particular case, must be reflected in the sentence which is imposed.
50 A review of recent cases indicates (McIntyre v R [2009] NSWCCA 305; Barton v R [2009] NSWCCA 285; Wilkins v R [2009] NSWCCA 222; SBF v R [2009] NSWCCA 231; (2009) 53 MVR 438) that the principles discussed in De Simoni have on occasion proved difficult to apply. Their essence is that an offender must not be sentenced for an offence with which he or she has not been charged and convicted. If by reason of the facts of a particular case an offender could have been found guilty of an offence carrying a greater maximum penalty than that for which they have been charged, the facts which would constitute a finding of the more serious offence cannot be relied upon when sentencing the offender. If those facts would have made the offender liable for the penalty for the aggravated form of an offence they must be put to one side when sentencing for the offence for which that person has been convicted. These principles were discussed in R v Lawless (unreported, 24 June 1994; NSWCCA Gleeson CJ, Hunt CJ at CL; Blanch J) by Hunt CJ at CL in the context of sentencing for possession of drugs where the facts may disclose that the offender was engaged in a commercial narcotic venture, as opposed to possessing the drugs for his or her own use. His Honour said:
"A sentencing judge may take into account all of the conduct of the prisoner, including that which would aggravate the offence, but may not take into account as matters of aggravation facts established in the evidence which would have warranted a conviction for a more serious offence or which would have rendered the prisoner liable to a more serious penalty than that which is prescribed for the offence of which he has been found guilty."
51 Hunt CJ at CL relied upon the discussions of the relevant principles by Gibbs CJ in De Simoni. At p 389 the Chief Justice said:
"However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."
52 At p 392 the Chief Justice said:
"… a judge, in imposing sentence, may not have regard to a circumstance of aggravation which should have been charged in the indictment if it was intended that reliance should be placed upon it. He may, of course, have regard to facts which might ordinarily be described as circumstances of aggravation, but which do not fall within the definition of that expression in the Code, because they do not render the offender liable to a greater punishment."
53 In the present case a statement of agreed facts was tendered. There was no suggestion by defence counsel that the applicant should not be sentenced having regard to the injuries listed in the statement. It includes injuries which are properly described as wounds both to the victim's head and left hand. Those injuries are themselves of such severity that they would appropriately be described as grievous bodily harm. The fractures to the victim's skull and hands, although, because they do not involve a penetration of an internal layer of the skin, would not be described as wounds, are so related to the blows to the victim which caused the wounding that in order to properly identify the extent and consequence of the wounding consideration of the resulting fractures and their consequence was undoubtedly appropriate.
54 It must be remembered that the intent to which the applicant pleaded guilty was the intention to do grievous bodily harm. It is apparent that his Honour had that in mind, but also recognised that the injuries inflicted on the victim included both wounds, and, if considered alone, injuries in the nature of grievous bodily harm. To my mind in the circumstances of this case his Honour was both entitled and, if he was to determine the appropriate sentence, obliged to have regard to the full extent of those injuries. The consequence is not that the applicant has been sentenced for a more serious offence than that for which he was charged or for an aggravated form of the present offence. Furthermore because the infliction of wounds or grievous bodily harm is an element of the offence, the sentencing judge was careful to identify the fact that he was not taking the injuries into account as an additional aggravating factor under s 21A(2)(g) of the Crime Sentencing Procedure Act 1999 (NSW).
55 The present case is of a different character to that considered by this Court in McCullough, where it was held that wounding with which the offender was charged and convicted was unrelated to the injuries amounting to grievous bodily harm to which the sentencing judge had regard when the offender was originally sentenced.