Ciaron McCULLOUGH v R [2009] NSWCCA 94 | Case summary

The Crown submits that the offender's actions on this day amount to gratuitous cruelty. The Macquarie Dictionary defines "gratuitous" interalia as "being without reason, cause or justification". The same dictionary defines "cruelty" as "causing or marked by great pain or distress". There can be no doubt that what this offender did amounts to gratuitous cruelty towards an innocent victim. There is simply no justification for what he did to his mother in punching her repeatedly which resulted in significant pain and distress, both at the time and of an ongoing nature. Clearly she was a woman who did not deserve such treatment at the hands of her son. 29 With respect, I have difficulty with her Honour's reasoning for finding that the offence involved gratuitous cruelty. In dealing with an aggravating factor under s 21A(2) it is not a case of just defining the words and seeing whether that definition applies to the facts of the case. I would have thought it was quite unnecessary to go to a dictionary to understand what was intended by Parliament in enacting this particular aggravating factor. If her Honour were correct as to the meaning of the term as used in s 21A, the aggravating factor would be present in any offence that is committed without justification and causes the victim great pain. It would be difficult to find that such a factor would not be present in almost every case of malicious wounding as the word "malice" provides that the wounding is without justification. Nor is the factor made out because the victim "did not deserve such treatment" at the hands of the offender, whatever be their relationship. 30 Gratuitous cruelty seems to me to suggest that the infliction of pain is an end in itself. It is needless yet intentional violence committed simply to make the victim suffer. It might be found, for example, where a robber inflicts pain upon an already compliant victim who was willing to part with the property demanded or in a case of a sexual offence where the victim is assaulted even though he or she is not resisting the offender. But in offences which are of their nature violent, such as wounding or the infliction of grievous bodily harm, where the purpose of the offence is to cause pain and suffering to the victim there needs to be something more for the factor to be present than merely that the offender had no justification for causing the victim pain. 31 There may be cases of malicious wounding where the factor is present because of the nature or purpose of the wounding, for example where it involved a type of torture. In TMTW v R [2008] NSWCCA 50 the applicant inflicted pain on the victim by the use of a pair of pliers applied to the victim's penis and scrotum. It was held that the judge was correct to find that offence was committed with gratuitous violence. In R v Olsen [2005] NSWCCA 243 gratuitous cruelty was found by reason of the infliction of a very large number of injuries to a very young child. But there was nothing in the present case that gave rise to this factor of aggravation in the nature of the attack upon the victim. 32 There may have been one fact that might have given rise to the aggravating factor. This is that the applicant turned on the hot water tap and splashed his mother. But there was no evidence that this caused her any pain. There is nothing in the medical reports to suggest that she suffered scalding or even redness to any part of her body that could be attributed to the effects of hot water upon her. In that circumstance the Crown could not rely upon this aggravating factor. 33 Her Honour was in my opinion in error in finding as an aggravating factor that the offender was acting with gratuitous cruelty. Certainly he was acting with gratuitous violence and causing his mother painful injuries as a result, but that did not give rise to an aggravating factor under s 21A(2). Further, it was completely unnecessary in order to form a proper assessment of the seriousness of the assaults upon his mother to introduce the concept of gratuitous cruelty. It really added nothing to the description of what was a prolonged and unprovoked assault upon a vulnerable woman in her own home by her own son. Depending upon the injury or injuries sustained by the victim that description was enough to bring the objective seriousness of the offending above the mid range. Nature of the injuries 34 However, there is a more fundamental difficulty with the sentencing exercise undertaken by her Honour. And this difficulty is a direct result of the nature of the charge and the facts placed before the Judge. 35 The offence charged was malicious wounding. It was not the malicious infliction of grievous bodily harm. At the time of the commission of the offence s 35(1) contained two offences: s 35(1)(a) malicious wounding and s 35(1)(b) malicious infliction of grievous bodily harm. A wounding does not necessarily amount to grievous bodily harm and grievous bodily harm does not necessarily include a wounding. The two offences were included in the one section and carried the same penalty but they were distinct offences. 36 The applicant was charged under s 35(1)(a). A wound is the penetration of the internal layer of the skin. In this case there were a number of wounds. There was a bite to the finger that required three sutures. There were also very minor lacerations of the head that did not require suturing. The medical report does not number or describe these lacerations so minor were they. Arguably the most severe injury was the fracture of the wrist and there was very severe bruising around the eyes. The pictures of the victim are truly pitiable. Although she spent five days in hospital, obviously it was not a result of the wounds. 37 Malicious wounding is principally a result offence. Generally speaking the seriousness of the offence will significantly depend upon the seriousness of the wounding. That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wounding are irrelevant. The same can be said for an offence involving the infliction of grievous bodily harm: the more serious the harm inflicted the more serious the offence: see R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [27]. 38 The Judge was clearly entitled to take into account the nature of the assaults that gave rise to, or surrounded, the wounding. She was also entitled to take into account other injuries inflicted in the course of conduct resulting in the wounding that were less serious than the wounding. In my opinion her Honour was not, however, entitled to take into account other injuries inflicted upon the victim that were not wounds and were more serious than the wounds. A broken wrist is not encompassed in a charge of wounding and, particularly in the case of a 60 year old, was considerably more serious than the wounds. I do not believe that the Judge could take into account that the victim spent five days in hospital because that was not identified as being a result of the wounding or of injuries that were less serious than the wounding. 39 The Crown argued that the Judge was entitled to take into account all of the injuries inflicted because to do so was not in breach of the De Simoni principle. This, it was argued, was because the same penalty applied for both malicious wounding and malicious infliction of grievous bodily harm. But, as I have indicated, there are two separate offences depending upon the type of injury inflicted. It does not seem to me to be permissible to sentence an offender for injuries not charged where those injuries are more serious. Had the applicant been charged with maliciously inflicting grievous bodily harm, I have no doubt that the Judge could have taken into account all the injuries, whatever their nature, because together they amounted to grievous bodily harm, or because they were less serious than the injury that was grievous bodily harm. To sentence for the infliction of grievous bodily harm on a charge of wounding, seems to me to eradicate the difference between the two offences. The Crown submissions suggest, that, if there was any error, it was because of a "faulty averment" as to the nature of the injuries. But this is to blur the fact that there are two separate offences contained in s 35. 40 It is interesting to note that s 35 in the Crimes Act was recently amended. There are still two categories of offences depending upon the type of injury inflicted even though the section has been redrafted to remove the concept of malice and to include an aggravating feature of being in company. Further, recklessly causing grievous bodily harm under s 35(2) carries a maximum sentence of 10 years imprisonment, whereas recklessly wounding under s 35(4) carries a maximum penalty of 7 years imprisonment. 41 Here the principal wounding was the bite to the mother's finger that needed three sutures. The other wounds were minor although they appear to have produced a great deal of blood. The nature of the wound was, therefore, at the low end of the scale of seriousness for this offence. However, the circumstances in which the wound was occasioned increased its seriousness considerably. As I have already described, the wounding occurred in the course of a prolonged and unprovoked assault upon a vulnerable woman in her own home by her own son. The only explanation for the assault was that the applicant was drunk. He has a history of violent offences and was on bail for the offences against his brother at the time. The applicant has been shown considerable leniency by the courts in an endeavour to assist him overcome his problems with alcohol in the past. The sentence now must reflect a very significant degree of personal deterrence. 42 In any event a sentence before discount of 5½ years for the malicious wounding offence as against a maximum penalty of 7 years was manifestly excessive whatever injuries were taken into account by her Honour. Notwithstanding the seriousness of the conduct, as against the type of wounding or injuries in the nature of grievous bodily harm covered by the section this offence was no more than midrange notwithstanding its aggravating features. No weapon was used, the offence was unplanned and the injuries were not permanent. Unlike many wounding offences there is no evidence of any significant scarring. The applicant was truly remorseful. The sentence before discount should be 4 years. 43 The Judge allowed the respondent a discount of 25 per cent in respect of all matters. This was overly generous in respect of the assault and malicious damage charges but was a result of a submission made by the prosecutor that the pleas were made at the first opportunity. That statement was plainly wrong. The respondent had been charged by the police with both of these offences and could have indicated a preparedness to plead guilty to them at any time irrespective of the committal charge. In fact the assault charge was independent of the committal charge. The discount should have been no more than 15 per cent. 44 There were a number of matters before the District Court pursuant to s 166 of the Criminal Procedure Act. No order was made in respect of these matters and none was sought by the prosecutor. In fact there is no mention made of them in the proceedings before her Honour at all. These need to be addressed in the District Court as they represent outstanding charges against the respondent.

Ciaron McCULLOUGH v R

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