Maybury v R

Judgment

1. GLEESON JA: I agree with Wright J. I would add one brief comment concerning the applicant's argument that the sentencing judge erred in finding that "the nature and extent of the injuries clearly amount to grievous bodily harm" because this elevated the seriousness of the offence of wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). That is a misreading of the sentencing judge's reasons.
2. The relevant passage of his Honour's reasons is set out by Wright J at [32] below. The applicant's submissions omit reference to third paragraph of that passage, which provides the context of the impugned finding, namely, the jury's verdict involved the determination that the applicant had intended to inflict grievous bodily harm on the victim, which was an element of the s 33(1)(a) wounding offence. Plainly in this case, the extent of the harm that was inflicted by the blows to the victim that caused the wounding was "one indication of the degree to which the offender harboured the intention to inflict grievous bodily harm": Bourke v R [2010] NSWCCA 203; 225 A Crim R 481 at [72] (R A Hulme J). Although Bourke concerned a predecessor form of the wounding offence under s 33, that is not a sufficient reason to distinguish the approach by his Honour to the offence of wounding with intent to cause grievous bodily harm. Contrary to the applicant's submissions, the sentencing judge did not elevate the seriousness of the injuries constituting the wounding offence when sentencing the applicant. His Honour correctly sentenced the applicant on the basis that the injuries constituted the offence of wounding with intent to cause grievous bodily harm.
3. WRIGHT J: By a notice of appeal filed on 27 May 2022, the applicant, Mathew Francis Maybury, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against a sentence imposed upon him by North DCJ in the District Court of New South Wales at Newcastle on 21 December 2020.
4. The applicant relied on only one ground, namely: "His Honour erred in sentencing the applicant on the basis that the injuries sustained by the victim amounted to grievous bodily harm where the offence before the court was wounding with intent to cause grievous bodily harm."

Leave to make the application out of time

1. Although the applicant had filed a notice of intention to appeal on 15 January 2021, the notice of appeal was filed after the expiry of the applicable period for filing. In this situation, Mr Maybury's application for leave to appeal against sentence could be made only with leave of the Court: Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5).
2. In support of his application for leave, the applicant relied on the affidavit of Sian O'Shaughnessy affirmed 27 July 2022 which established that, as a result of an administrative oversight, counsel was not briefed by Legal Aid to provide an advice on the merits until 10 February 2022 and counsel provided his advice on 24 May 2022. The notice of appeal was filed three days later.
3. The Crown's position was that the question whether leave should be granted to make the application out of time was a matter properly left to the Court and one that depended upon the merits of the matter.
4. At the most fundamental level, whether leave should be granted in a case such as this depends on whether the interests of justice so require in the particular circumstances: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32] (French CJ, Hayne, Bell and Keane JJ) (Kentwell). Relevant to the determination of the interests of justice on an application to extend time is the prospects of success should the extension be granted: Kentwell at [33]. In a case such as the present, which involves an out-of-time challenge to a sentence that is being served, the principle of finality does not provide a discrete reason for refusing to exercise the power to grant leave: Kentwell at [32].
5. Given the explanation provided by Ms O'Shaughnessy, the prompt action after counsel's advice was received and the fact that the ground of appeal relied upon by Mr Maybury raised issues which justify full consideration by this Court, in my view, leave to make the application should be granted.

Relevant background

1. As noted above, the sole ground of appeal concerned whether the learned sentencing judge had erred by sentencing the applicant on the basis that the injuries sustained by the victim amounted to grievous bodily harm where the offence of which he was found guilty was wounding with intent to cause grievous bodily harm. In order to consider this ground, it is useful to review aspects of the background to the proceedings as well as the sentencing judge's remarks on sentence.

Procedural background

1. The original indictment upon which Mr Maybury was arraigned on 4 February 2020 contained two counts: 1. Count 1 charged him, along with two others, with causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW); and 2. Count 2 charged him, along with the two others, with detaining without consent with the intention of committing a serious indictable offence, namely assault occasioning actual bodily harm, in company and with actual bodily harm occasioned, contrary to s 86(3) of the Crimes Act.
2. On 5 February 2020, while certain pre-trial applications were being dealt with, the Crown raised an issue concerning count 1. The issue and how it was to be resolved were described by the Crown Prosecutor before North DCJ as follows: [1] "CROWN PROSECUTOR: There was one other matter I ought to raise your Honour and that is that the Crown is - what will effectively require your Honour's leave, but it's an amendment to the indictment but it will need to be achieved, I think, for the law part codes to marry up; to be achieved by taking no further proceedings on the existing count 1 and to prefer a new count 1 in its place, an ex officio count. In relation to count 1, the Crown had a telephone conference with the substitute doctor, that I was only able to occur yesterday afternoon. That doctor's evidence confirmed something that was missing from the original doctor's statement which was that [the victim] had a wound to his head. However, the issue as to whether or not the combination of injuries to [the victim's] head amounts to grievous bodily harm is perhaps a live issue on Dr Kumar's evidence. … … Dr Kumar will be the doctor who will be giving expert evidence about the medical injuries if he is ultimately required. The Crown's taken the view that given we have incontrovertible evidence, it would seem, of a wound to [the victim], but perhaps there is some scope for argument as to whether or not the injury reached the standard of grievous bodily harm, that the Crown is now going to proceed on a 33(1)(a) offence as count 1 instead of the currently charged 33(1)(b). I think technically that would only be an amendment to a particular on the indictment. There is a paragraph in the annotated criminal legislation which indicates that s 33 probably only creates one offence, just with different particulars. However, as a practical matter, because of 33(1)(a) and a [sic] 33(1)(b) have different law part codes, what will be required I think for that to work is that the Crown actually takes no further proceedings in relation to the existing count, and proceeds by way of an ex officio charge in substitution so that the law part codes can be entered properly into the computer system for the statistics and so on."
3. Neither Mr Maybury nor his co-accused opposed the course foreshadowed by the Crown Prosecutor. In those circumstances, the applicant and the two others were re-arraigned before the jury panel on a new indictment dated 6 February 2020 in which count 1 was a charge of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act and count 2 remained as it was in the original indictment.
4. The applicant and the two others pleaded not guilty to both counts.
5. On 28 February 2020, the jury found the applicant guilty on each of counts 1 and 2, but the co-accused were found not guilty on each count.

Sentence

1. The sentence proceedings were conducted before North DCJ on 20 November 2020.
2. On 21 December 2020, North DCJ imposed on the applicant an aggregate sentence of 6 years' imprisonment, commencing on 28 February 2020 and expiring on 27 February 2026 with a non-parole period of 3 years and 6 months expiring on 27 August 2023.
3. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour indicated that he would have imposed the following sentences, and non-parole period (NPP) in the case where a standard non-parole period (SNPP) was specified, as follows: Count Offence Maximum Penalty and SNPP (if applicable) Indicative Sentence and NPP (if applicable) 1 Wound with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 25 years 5 years SNPP 7 years NPP 3 years 2 Specially aggravated detain contrary to s 86(3) of the Crimes Act 25 years 4 years

Remarks on sentence

1. After some preliminary comments in his remarks on sentence, North DCJ noted it was necessary for him to find facts and stated he was satisfied that the facts set out in his remarks were consistent with the jury's verdicts and had been arrived at beyond reasonable doubt. There was no challenge to these findings of fact, relevant aspects of which are set out in the paragraphs which follow.

Relevant factual findings

1. As at August 2017, the applicant was a high-ranking member of the Finks, an outlaw motorcycle gang (OMCG) who operated a gym or clubhouse from an industrial shed, which was where the offences took place. The victim was also a member of the Finks. It was well known by members of the Finks that they were not permitted to give statements to police and there were serious repercussions for members who did speak to police. The victim had signed a document which contained a rule to this effect.
2. On 9 August 2017, the victim was arrested and charged with unrelated offences. While in custody he participated in an electronically recorded interview with police. At some stage, members of the Finks obtained a copy of the victim's electronically recorded interview.
3. Prior to 17 August 2017, the applicant sent a message to other Finks members telling them to come to the Finks' clubhouse on the afternoon of 17 August 2017. Approximately 20 members of the Finks, including the applicant and the victim, gathered at the clubhouse. The applicant acted in a leadership capacity at the meeting and the victim's recorded interview with police was played through a loudspeaker. The victim's voice was heard on the interview and he provided police with the names of several members of the Finks. The victim had his head down while the recording was played.
4. Towards the end of the recording, the applicant picked up a length of timber and swung it down at the victim from over his head. The timber grazed the side of the victim's head and shoulder. The applicant then lifted the timber again and struck the victim on the back and side of his head. The victim stumbled forward and fell onto the ground. He was then jumped on, punched, kicked, and stomped on, whilst he was pinned in a corner and had nowhere to go. The assault was instigated by the applicant and continued for about five minutes. The victim had gashes on his head and there was blood on his head and face, but he remained conscious. He kept saying sorry during the attack. The attack on the victim had been planned prior to the meeting.
5. After the initial physical assault, the applicant instructed the victim to get into a wheelchair and he did so. His hands and feet were then zip-tied to the chair preventing him from leaving. The applicant then instructed Mr Chambers to get his tattooing equipment which he did because he was concerned for his safety if he did not comply with what the applicant told him to do. The applicant then told Mr Chambers to tattoo the word "DOG" onto the victim's forehead and he did so. Mr Chambers then wheeled the victim from the corner to the open area of the shed. The applicant had a wood-saw in his hand and said, "What do you think boys, should we cut off his tongue?" The victim pleaded that he would not do it again and that he was not going to talk to anyone. The applicant put the saw down and said: "Last chance, boys. If you want to do something to him you won't get another chance." After a minute, the applicant told the other members to cut the victim free.
6. The victim attended upon Maitland Hospital for treatment at 9:11 pm on the evening of 17 August 2017. The victim told hospital staff that he had no memory of the day and that he was found by his partner on the lawn outside his house. The sentencing judge recorded that the victim was found to have the following injures: "1. Neck tenderness; 2. Skull/facial bone deformity, an X-ray confirmed he had a non-displaced fracture of the right parietal, right temporal bone and greater wing of right sphenoid bone with evidence of extra-axial haematoma in right temporal region in differential most likely epidural haematoma and tiny subdural haematoma in the right front parietal region; 3. 12-centimetre linear laceration on the right side of his skull which was glued; 4. Tender chest wall, hip/pelvis; 5. Swelling on the right side of his scalp and face; 6. Bruising on his left knee."
7. North DCJ also found that whilst some of the injuries were directly caused by the applicant, including the 12 cm linear laceration to the skull, "the [applicant] clearly initiated the violence by utilising the piece of wood and with others was part of a joint criminal enterprise in regard to counts 1 and 2".
8. The victim was held in Maitland Hospital until 11:50 am the following day at which time he was transferred to John Hunter Hospital. He was discharged from John Hunter Hospital the next day.
9. Photographs of the victim revealed that the word "DOG" was tattooed on his forehead.
10. The applicant was arrested on 14 June 2018 and agreed to participate in an electronically recorded interview with police in which he, in effect, admitted that he was a member of the Finks but denied that he had any knowledge about an incident that took place on 17 August 2017. The applicant also stated that he had "stepped away" from the Finks and lost interest in the whole thing and denied going to chapter meetings.

Objective seriousness of count 1 offending

1. North DCJ then considered the objective seriousness of the offences. His Honour referred to the maximum penalty of 25 years' imprisonment for each offence and the standard non-parole period of 7 years for the offence in count 1.
2. As to the objective seriousness of count 1, his Honour found that it involved a violent attack by the applicant on the victim which included both striking the victim with a piece of wood and kicking and punching him. It was said that the facts did not attribute the punching and kicking to the applicant specifically but that such conduct was committed by him in company as a part of a joint criminal enterprise. His Honour was satisfied that the attack was part of a planned and organised criminal activity given the meeting was called in advance, the recording was taken to the meeting and played, and certain items, such as the tattooing equipment, the wheelchair and zip ties, were available at the location. It was also accepted beyond reasonable doubt that a part of the meeting was to deal with the victim having spoken to police in contravention of the Finks' rules.
3. North DCJ continued: "The extent and nature of the injuries caused in count 1 is of importance in arriving at objective seriousness. Here, the injuries inflicted are clearly set out in the facts. They are serious injuries and were inflicted in company as part of a joint criminal enterprise by the [applicant]. Although it is not possible to ascribe particular injuries to particular actions by individuals, except, I do find that the 12.5 centimetre laceration to the side of the head was caused by the [applicant] himself wielding the wood. There is no concrete evidence that the victim has not made a full recovery. He did give evidence of ongoing memory deficits following the attack. It was also clear from the way in which he gave evidence, he was well aware of his position in regard to being a former member of an OMCG. Accordingly, whilst the nature and extent of the injuries clearly amount to grievous bodily harm, the lack of definite long-term sequelae must be borne in mind. Of course, given the huge range of criminality encompassed by this section, it is easy to find examples of much more serious grievous bodily harm. Further, a piece of wood was used by the offender to strike at least two blows to the head and shoulder area of the victim. There were clearly a wide range of much more life-threatening instruments that could have been used by this offender. Nevertheless, the jury verdict on count 1 means that they have accepted beyond reasonable doubt that he had the intention to cause grievous bodily harm. This stems from the use of the piece of wood to inflict injury and a significant degree of violence involved."
4. Taking all the circumstances of the offending relating to count 1 into account, the sentencing judge concluded that the objective seriousness of count 1 fell "at midrange for offences of this type".
5. A key aspect of the applicant's ground of appeal was the fact that the learned sentencing judge said, in the second paragraph of the passage quoted in [32], "the nature and extent of the injuries clearly amount to grievous bodily harm".
6. Following those comments, North DCJ made findings as to other matters including the objective seriousness of count 2 which related to the detention of the victim in the wheelchair and his tattooing, the applicant's subjective case, and the principle of parity. These, however, were not the subject of any ground of appeal or challenge by the applicant and thus it not necessary to set these matters out in any detail in these reasons.

Applicant's submissions

1. The applicant's position was that, by its verdict in relation to count 1, the jury must have found that the applicant "wounded" the victim with the length of timber when the 12.5 cm laceration to right side of his skull was caused (it having been conceded at trial that the laceration to the victim's head was a wound).
2. It was submitted that "[s]ection 33 of the Crimes Act creates 2 distinct offences: an offence of wound with intent to cause grievous bodily harm and an offence of cause grievous bodily harm with intent to cause grievous bodily harm". This submission was clearly addressing only s 33(1) and did not relate to s 33(2).
3. It was noted that the Crown made a deliberate, tactical decision to take no further proceedings in respect of the offence of cause grievous bodily harm with intent to cause grievous bodily harm in count 1 in the original indictment because it was arguable as to whether the victim's injuries reached the standard of grievous bodily harm. It was then submitted in effect that, because count 1 in the new indictment only alleged wounding with intent to cause grievous bodily harm, the jury was not required to determine whether the victim's injuries amounted to grievous bodily harm but only whether the injuries involved a wounding.
4. In these circumstances, it was submitted that it was erroneous for the sentencing judge to make the finding that the victim's injuries amounted to grievous bodily harm, as his Honour did in the passage quoted above at [32]. The applicant submitted that the sentencing judge's finding was not a slip but resulted from submissions made by the Crown at the sentence hearing as to the appropriateness of making such a finding. It was submitted in effect that the sentencing judge impermissibly elevated the seriousness of the offence for which the applicant was being sentenced and this involved error in that: 1. the applicant was effectively sentenced for an offence of which he had not been convicted, namely causing grievous bodily harm with intent to cause grievous bodily harm; and 2. the applicant was deprived of the opportunity to litigate the issue of whether the victim's injuries amounted to grievous bodily harm before the jury and he should not have been sentenced on that basis.
5. Certain features of the present case were said to distinguish it from McCullough v R [2009] NSWCCA 94; 194 A Crim R 439, Wilkins v R [2009] NSWCCA 222, Bourke v R [2010] NSWCCA 22 and Adams v R [2011] NSWCCA 47. Nonetheless, it appeared that the applicant, in effect, relied on the approach adopted in McCullough at [38], Wilkins at [35] and Adams at [33].
6. It was also submitted that, given the way in which the Crown chose to frame count 1 in the new indictment, the submissions and finding on sentence that the victim's injuries amounted to grievous bodily harm involved a miscarriage of justice and that such a finding was "inconsistent with the verdict as the fact of grievous bodily harm was never left for the jury's consideration".
7. Thus, in oral submissions, Mr Ramrakha of counsel who appeared for the applicant submitted that the ground of appeal could be framed: as a breach of the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31; or, alternatively, as a miscarriage of justice because the applicant may have been acquitted had the Crown elected to proceed with the charge of grievous bodily harm with intent to cause grievous bodily harm, rather than wound with intent to cause grievous bodily harm.
8. In support of this submission, the applicant reviewed the authorities referred to above and noted the differences between the terms of the applicable sections of the Crimes Act at the relevant times and the present form of s 33(1). Further, in this regard the applicant submitted that none of the cases relied on was decided having regard to the principle that it is for a jury to determine whether any injuries amount to grievous harm and not a judge on sentence.
9. The applicant also submitted that "the evidence at trial was not capable of establishing beyond reasonable doubt that the fractures to the skull were caused by the same mechanism that caused the wound" and attention was drawn to the fact that the victim was subject to other violence after the applicant struck him twice with the length of timber. The applicant contended that "[w]hile the balance of injuries [other than the wounding] could also be taken into account, they could only be taken into account in the way discussed by Howie J in McCullough at [38]".
10. Furthermore, the applicant submitted that, unlike certain authorities referred to, the instant case did not involve a plea of guilty where a jury was not required to consider the nature and extent of the injuries to the victim.

Crown's submissions

1. The Crown in effect submitted that the sentencing judge's finding that the nature and extent of the injuries clearly amounted to grievous bodily harm should be viewed in the context of his Honour's later comment that: "the jury verdict on count 1 means that they have accepted beyond reasonable doubt that he had the intention to cause grievous bodily harm. This stems from the use of the piece of wood to inflict injury and a significant degree of violence involved."
2. It was submitted that the authorities establish that, while a sentencing court is obliged to find facts consistent with the jury's verdict, the facts found may be more expansive than those required to be found by the jury.
3. The Crown submitted that his Honour was not sentencing the applicant to a different offence simply because he referred to the extent of harm inflicted but rather the sentencing judge was doing what he was required to do under s 3A(g) of the Crimes (Sentencing Procedure) Act, namely sentencing in a way that properly recognised, amongst other things, the degree of harm done to the victim.
4. In relation to the De Simoni principle, the Crown referred to the comments of Basten JA in Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1 at [146] and submitted that the Court should consider whether the sentencing judge did in fact impose any additional punishment on the offender for causing grievous bodily harm, taking into account the context and substance of what was said in the remarks on sentence.
5. The Crown submitted that "it is open, when reading the remarks in context, to find that his Honour used the label 'grievous bodily harm' as a way of describing what he considered serious injuries". The Crown further contended that his Honour's finding was counter-balanced by his having noted the absence of long-last sequelae and his comment that there were much more serious examples of grievous bodily harm. In view of those counter-balancing comments, the Crown submitted that "there does not appear to have been any disadvantage suffered by the applicant by his Honour's characterisation of the injuries as amounting to grievous bodily harm."
6. It was also contended that injuries found by the sentencing judge to amount to grievous bodily harm were permissibly taken into account by him because they were properly regarded as "not entirely separate and distinct from that giving rise to the offence charged [wounding with intent to cause grievous bodily harm]"; rather, they were "an incident of the conduct giving rise to the commission of the offence", citing Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [158].
7. Ultimately, the Crown submitted that the sentencing judge made no error by finding the injuries constituted grievous bodily harm.
8. In addition, the Crown addressed the applicant's submission that it was impermissible for the sentencing judge to make the finding that the injuries amounted to grievous bodily harm because the jury was never asked to determine whether the victim sustained such harm. The Crown submitted in effect that the sentencing judge's findings were not inconsistent with the findings the jury were required to make and his Honour was entitled to make the finding that he did.
9. Lastly, in relation to re-sentencing, the Crown submitted that, even if ground 1 was upheld, no lesser penalty was warranted in law.

General principles in relation to sentencing

1. As North DCJ himself noted in his remarks on sentence, the proper approach to sentencing required him to identify "all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case": Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J).
2. The purposes of sentencing which guide that task are specified in s 3A of the Crimes (Sentencing Procedure) Act and relevantly include: "(a) to ensure that the offender is adequately punished for the offence, … (g) to recognise the harm done to the victim of the crime and the community."
3. In addition, part of carrying out this task involves the sentencing judge making an assessment of the objective seriousness of the offending, in the manner explained in Muldrock v The Queen (2010) 244 CLR 120; [2011] HCA 39 at [27], [29].
4. In a case such as the present, the degree of harm to the victim and the objective seriousness of the wounding with intent to cause grievous bodily harm will depend to a significant extent on the nature and seriousness of the injuries suffered by the victim. That is not to say, however, 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: R v Mitchell; R v Gallagher [2007] NSWCCA 296 at [27] (Howie J, Giles JA and Fullerton J agreeing); 177 A Crim R 94 (Mitchell).
5. The obligation to have regard to "all of the factors that are relevant to the sentence" is, however, qualified by the principle stated by Gibbs CJ in The Queen v De Simoni (1981) 147 CLR 383 at 389; [1981] HCA 31 (De Simoni) that a judge imposing a sentence is entitled to consider all the conduct of the offender, 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. This principle is an aspect of the more fundamental principle that no one should be punished for an offence for which he or she has not been convicted: Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [29] (Bell and Keane JJ).

Relevant legislation and definitions

1. It is helpful at this point to note the specific terms of the Crimes Act relating to the offence contrary to s 33(1)(a) charged in count 1. Since 15 February 2008, s 33 of the Crimes Act has provided: "33 Wounding or grievous bodily harm with intent (1) Intent to cause grievous bodily harm A person who - (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to cause grievous bodily harm to that or any other person is guilty of an offence. Maximum penalty - Imprisonment for 25 years. (2) Intent to resist arrest A person who - (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to resist or prevent his or her (or another person's) lawful arrest or detention is guilty of an offence. Maximum penalty - Imprisonment for 25 years. (3) Alternative verdict If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 35, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 35. The person is liable to punishment accordingly."
2. It is also well established that: 1. "wounding" requires some breaking or cutting of the interior layer of the skin: Cao v R [2020] NSWCCA 223 (Cao) at [31] (Adamson J, Hoeben CJ at CL and Davies J agreeing); and 2. "grievous bodily harm" is to be understood as being "really serious bodily harm": AM v R [2012] NSWCCA 203 at [70]; 225 A Crim R 481 (Johnson J, McClellan CJ at CJ and Garling J agreeing) and, by virtue of the definition in s 4(1) of the Crimes Act, includes destruction of a foetus in certain cases, any permanent or serious disfiguring of the person and any grievous bodily disease.

The circumstances of the applicant's case

1. The applicant was relevantly convicted of wounding with intent to cause grievous bodily harm. Section 33(1) makes it an offence, punishable by up to 25 years' imprisonment, either to wound any person or to cause grievous bodily harm to any person, with intent to cause grievous bodily harm to that or any other person.
2. The sentencing judge's findings concerning the circumstances of the offending in the present case included, inter alia, that: 1. there was "a violent attack" involving the victim being struck with a piece of wood by the applicant and then punched and kicked by the applicant and/or others as part of a joint criminal enterprise involving the applicant; 2. the attack was part of a planned and organised criminal activity; 3. the injuries suffered in the attack included: a 12.5 cm linear laceration on the right side of the skull; a non-displaced fracture of the right parietal, right temporal bone and the greater wing of the right sphenoid; haematomata in the right temporal and right front parietal regions; swelling to the right side of the scalp and face; tenderness in the neck, chest wall, hip and pelvis; and, bruising on the left knee; 4. the 12.5 cm laceration, which was conceded to be a "wound", was caused by the applicant striking the victim with the piece of wood but otherwise it was not possible to ascribe particular injuries to particular actions by individuals; 5. the victim's injuries were described as "serious" and "clearly amount[ing] to grievous bodily harm" but not leading to "definite long-term sequelae" and it was said to be "easy to find examples of much more serious grievous bodily harm"; and 6. the applicant had the intention of inflicting grievous bodily harm, in light of the jury's verdict and matters such as the applicant's use of the piece of wood and "the significant degree of violence involved".

The two ways in which the applicant's case was put

1. The crux of the applicant's ground of appeal was that the sentencing judge's finding that "the nature and extent of the injuries clearly amount[ed] to grievous bodily harm" meant that, in effect, the applicant was erroneously sentenced for the offence of causing grievous bodily harm with intent to cause grievous bodily harm and not the offence of which he had been convicted, namely wounding with intent to cause grievous bodily harm. It was said that the ground could in essence be put in two ways: 1. in sentencing the applicant on this basis, the sentencing judge offended the De Simoni principle; or, 2. there was a miscarriage of justice because the question of whether the injuries amounted to grievous bodily harm should not have been determined by the sentencing judge because it was a question for a jury to determine.

The principles referred to in De Simoni and the proper approach in the present case

1. In so far as the principles referred to in De Simoni were relied upon, this case illustrates the difficulties which can arise in the application of those principles to the circumstances of a particular case.
2. De Simoni concerned an offender who pleaded guilty to a charge under s 391 of the Criminal Code (WA) of robbery, the elements of which included that the offender had used or threatened to use "actual violence". It had been found that, during the offending, the offender hit the victim on the back of the head inflicting a "wound" of about 10 cm. Under s 393 of the Criminal Code (WA) there was also an aggravated robbery offence, attracting a higher maximum penalty, if, inter alia, at, immediately before, or immediately after, the robbery the offender "wounds or uses any other person violence to any person". The sentencing judge specifically noted that the Crown had "not seen fit to add the aggravating feature" and that the offender was to be sentenced on the basis of the lesser maximum penalty for the unaggravated offence. The sentencing judge concluded: "In my view this is a shocking crime. You did subsequently show some compassion. You assisted her by washing her wound which subsequently required eight stitches and in fact my recollection is that you left some money for her but I feel this was more because of the realisation at that stage of what you had done - struck from behind on the head with a piece of wood a 78-year-old woman. In my view this crime deserves punishment and substantial punishment."
3. On appeal to the Western Australian Court of Criminal Appeal, it was held that the fact that the offender had wounded his victim and used personal violence to her were circumstances of aggravation within s 582 of the Criminal Code (WA) and that it was not permissible for the sentencing judge, in imposing sentence, to have regard to any such circumstances of aggravation that were not charged in the indictment. The appeal was allowed. The Crown then appealed to the High Court.
4. In the course of his judgment, Gibbs CJ (Mason and Murphy JJ agreeing) not only stated the principle, often referred to as the De Simoni principle, which has been set out above, but also stated, at 392: "It is not only in cases in which the offence has been accompanied by circumstances of aggravation that a trial judge may be required, in sentencing, to take an artificially restricted view of the facts. This will be so also in cases where the jury's verdict is inconsistent with the view of the facts that the judge himself has formed, for the judge cannot act on a view of the facts which conflicts with the jury's verdict. However, where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty."
5. The actual conclusion reached by Gibbs CJ, at 395, was that the appeal should be allowed. The Chief Justice's reasoning was set out at 393-4 as follows: "The application of s 582 leads to difficulty in some cases of robbery. Under s 391, it is an element of the offence that the offender has used or threatened to use actual violence to any person or property. Under s 393 a circumstance of aggravation is that the offender wounds or uses any other personal violence to any person. In my opinion there is no difference between using actual violence to any person, and using personal violence to any person. Actual violence means no more than physical force which is real and not merely threatened or contemplated. Personal violence means violence to the person - bodily violence. Under s 391 the relevant element of the offence may be satisfied by actual violence to property or by threatened violence to the person, and in those cases there will not necessarily exist any circumstance of aggravation. However, the necessary element required by s 391 may also be satisfied by actual violence to any person, and where that is the case the element of the simple offence will also constitute a circumstance of aggravation. ... If an offender has been convicted of robbery, and the indictment charges that he used actual violence to any person, it is obvious that the trial judge, in imposing sentence, may have regard to the actual violence that was used, notwithstanding that it would also constitute personal violence within s 393. On the other hand, if the actual violence used resulted in wounding, the trial judge should not take the wounding into account unless it has been charged in the indictment, for the wounding is purely a circumstance of aggravation and not an element of robbery simpliciter. For these reasons it was not correct for the Court of Criminal Appeal to take the view that the trial judge, in imposing sentence, should have disregarded the fact that the respondent had used actual violence to the person of his victim, since that was an element of the offence with which he was charged and to which he pleaded guilty. On the other hand their Honours were correct in taking the view that it would not have been right for the trial judge to have had regard to the fact that the respondent had wounded his victim. However, in my respectful opinion the trial judge did not increase the sentence which he imposed because of the fact that the victim was wounded. He expressly mentioned that that circumstance of aggravation had not been charged, and then went on to refer to the facts in a way which shows that he treated the use of the actual violence as a matter which warranted substantial punishment. However, the manner in which he mentioned the fact that the victim was wounded - in relation to the act of the applicant in washing the wound - does not indicate that he relied upon the wounding in deciding upon the sentence. "
6. This reasoning of the Chief Justice demonstrates that, when determining whether the De Simoni principle has been contravened it is vital to understand what the sentencing judge took into account and to what extent, if at all, it was used, in determining the sentence in the particular case.
7. In Turkmani v R [2014] NSWCCA 186; 244 A Crim R 402, Beech-Jones J (as his Honour then was), at [37], recognised some of the subtleties involved in the application of the principle in De Simoni noting that the reasoning of Gibbs CJ quoted above and the outcome in that case made it clear that: "the sentencing process will not miscarry if the sentencing proceeds upon facts that merely satisfy the elements of the offence charged, even if one of those elements can amount to a circumstance of aggravation sufficient to found guilt for another more serious offence. However the sentencing process may miscarry if those facts amount to such a circumstance which is not an element of the offence charged."
8. Some of the difficulties in the application of the principle also arise out of the use of the expression "circumstances of aggravation". In this regard Basten JA observed in Einfeld v R [2010] NSWCCA 87 (Einfeld) at [137]-[138]; 266 ALR 598: "137. Use of the term "circumstance of aggravation" should not, however, be equated with the statutory concept of an "aggravating factor", as it appears in s 21A of the Sentencing Procedure Act. The phrase "circumstance of aggravation" was used in the Criminal Code (WA) to refer to "any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance": set out in De Simoni at 387. It is necessary to distinguish between an aggravating factor giving rise to liability for a higher maximum penalty in a legal sense, and a more colloquial use of the phrase, meaning that the sentencing judge may impose a greater punishment for the offence charged, by treating the conduct as a more serious example of the offence charged than would otherwise be the case. 138 The difficulties which may flow from an attempt to apply such a distinction are readily apparent and have been discussed recently in this Court in McCullough v R [2009] NSWCCA 94 at [38]-[39] (Howie J, McClellan CJ at CL and Simpson J agreeing) and in Bourke v R [2010] NSWCCA 22 at [46]-[54] (McClellan CJ at CL) and at [60]-[72] (Hulme J). In McCullough, the principle led the Court to take into account injuries suffered by the victim which were less serious than the wounding charged, but not other injuries that were not wounds and were more serious than the wounding charged: at [38]. In another case, where assault had been charged, but not a wounding, it would seem to be open to the sentencing judge to take account of the nature and severity of the blow but not the consequence (namely, that the skin was broken)."
9. At this point, it is useful to consider the cases, upon which the parties made submissions, where issues relating to the application of the principles in De Simoni have arisen in the particular context of offences involving wounding and grievous bodily harm.

McCullough v R [2009] NSWCCA 94; 194 A Crim R 439 (McCullough)

1. In McCullough, the offender pleaded guilty to, and was convicted of, malicious wounding contrary to s 35(1)(a) of the Crimes Act. At that time, s 35(1) provided: "(1) Whosoever maliciously by any means: (a) wounds any person, or (b) inflicts grievous bodily harm upon any person, shall be liable to imprisonment for 7 years."
2. The relevant facts included that on 7 February 2007, the offender carried out a sustained attack upon his 60 year old mother. After being told that he could not stay at her home because he was inebriated, the offender grabbed her and pushed her into a bathroom at which point he punched her in the face and body and held her in a headlock and continued to punch her. She bit his finger but he then pushed her and she fell into the bath. He continued to hit and kick her. He interrupted the assault for a short period in order to bite his mother's left finger and shout, "How do you like that?" He then punched and kicked her again. When somebody tried to enter the bathroom, the offender braced himself against the wall and stomped on her face, causing her head to hit the wall with such force that it broke through the tiled wall. He stomped on her face a second time, causing her head to hit the wall again. He then turned the tap on causing hot water to splash upon her. The offender continued to attack her until a neighbour took the offender outside to wait for police. As a result of the attack, the mother suffered "a wound to her left index finger where the offender had bit her, a fracture of her right wrist, bruising and swelling to both eyes, lacerations to her face and pain to her right side of her rib cage."
3. The injuries found to amount to wounds were the bite to the mother's finger which required three sutures and minor lacerations of the head which did not require sutures. It was held that, arguably, the most severe injury was the fracture of the wrist and there was very severe bruising around the victim's eyes.
4. Howie J held at [35] (McClellan CJ at CL and Simpson J agreeing) that although the two offences of malicious wounding and malicious infliction of grievous bodily harm were included in the one section and carried the same penalty, they were distinct offences.
5. Howie J observed at [37] that, generally speaking, the seriousness of the offence of malicious wounding will significantly depend upon the seriousness of the wounding, but that was 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 were irrelevant.
6. His Honour then went on to observe, at [38], "[The sentencing 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."
7. Thus, Howie J held that other injuries which were not wounds could be taken into account when an offender was being sentenced for malicious wounding unless the other injuries were "more serious than the wounds" inflicted. If the other injuries were more serious than the wounds, those other injuries could not be taken into account when sentencing for wounding.
8. In McCullough, the Crown argued that the sentencing judge was entitled to take into account all the injuries inflicted because the same penalty applied for both malicious wounding and malicious infliction of grievous bodily harm which meant doing so did not offend the principle in De Simoni. In addressing that submission, Howie J said: "39 … 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."
9. From this, it appears that the conclusion in McCullough was based not on the specific principle in De Simoni prohibiting an offender being sentenced for a more serious offence when only convicted of a less serious offence but on the more fundamental principle that no one should be punished for an offence for which he or she has not been convicted. This is evident from the fact that the two relevant offences in McCullough both carried the same maximum penalty and one could not be said to be necessarily more serious than the other and Howie J's statement to the effect that the vice in sentencing for the infliction of grievous bodily harm on a charge of wounding, was that it would "eradicate the difference between the two offences". If this is so, it gives rise to a difficulty with the conclusion reached in McCullough that injuries that were not wounds could be taken into account except if they were more serious than the wounding.
10. The reasoning in [39] of McCullough does not provide a logical basis for concluding that injuries that were more serious than the wounding but did not amount to grievous bodily harm should not have been taken into account. In order to avoid sentencing the offender for malicious infliction of grievous bodily harm, being an offence of which he was not convicted, instead of malicious wounding, it would be logical to require either that: 1. no injuries other than the wounds should be taken into account; or 2. all injuries associated with the wounding should be taken into account except to the extent that they amounted to grievous bodily harm.
11. The first approach leads, however, to difficulties in complying with the obligation to have regard to all of the facts relevant to the offending and the offender when sentencing, especially for the purposes of ensuring that the offender is adequately punished for the offence and to recognise the harm done to the victim. No doubt it was for that reason that it was held in McCullough that injuries other than the wounds could be taken into account. The second approach also involves a number of practical difficulties. First, whether injuries amount to grievous bodily harm might involve a consideration of all, or a combination of some of, the injuries suffered by the victim including any wounding. Consequently, it may not be possible or appropriate to classify injuries individually as constituting or not constituting grievous bodily harm (or even as being more serious than a particular wounding). Secondly, assessing the comparative seriousness of wounds and other injuries and whether they amount to grievous bodily harm involves a judgment about which minds might well differ. For example, would a fractured wrist or a sprained wrist amount to grievous bodily harm, considered by itself or in combination, or even a more serious injury than a particular wound to a finger? For sentencing to depend on such assessments and distinctions appears to involve an unsatisfactory degree of uncertainty and lack of transparency. A similar difficulty did not arise in De Simoni because what was required to be excluded from consideration was a wound and its consequences, and those were objectively identifiable, given the definition of "wound".
12. Finally, it can be noted that in McCullough neither the offence charged under s 35(1)(a), nor the other offence under s 35(1)(b), involved an element of intent to cause grievous bodily harm. In this regard, the offence charged in McCullough is different from the offence charged in the present case. The element imported by the word "maliciously" in s 35(1) was only to the effect that the wounding or the infliction of grievous bodily harm was required to be done with the intent of causing some physical harm or recklessness as to the possibility that some such harm might be caused: Cryer v R [2010] NSWCCA 18 at [24]-[28] and the definition of "maliciously" in s 5 of the Crimes Act, as at February 2007.

Wilkins v R [2009] NSWCCA 222 (Wilkins)

1. In Wilkins, the offender pleaded guilty to an offence of malicious wounding with intent to do grievous bodily harm contrary to s 33 of the Crimes Act for offending, which occurred on 22 January 2007. At that time and until 15 February 2008, s 33 was in the following terms: "33 Wounding etc with intent to do bodily harm or resist arrest 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."
2. The facts as found by the sentencing judge most relevantly included that, on 22 January 2007, after a loud bang was heard from the garage where the victim's car was located, the offender ran out of the garage with a hammer in his hand towards the victim. The offender grabbed the victim and threw him to the ground, got on top of him, kneed him in the chest and struck him numerous times to the head with the hammer. On a number of occasions the victim grabbed the hammer but the offender grabbed it back and continued to strike the victim at least three time until some neighbours managed to put an end to the assault and detain the offender until police arrived. The victim was taken to hospital and his injuries were found to be: "4 lacerations over the scalp which were bone deep and required 30-40 stitches, a laceration to the left zygoma, a bruise over the left lower chest and a CT scan of the face demonstrated air in the right maxillary sinus indicative of a small blow out fracture of that sinus. There was also a fracture of the medial wall of the right orbit."
3. On 24 September 2008, the offender was sentenced to imprisonment for 11 and a half years with a non-parole period of 7 years for the s 33 offence. The judge also sentenced the offender, in respect of three related summary offences being two of contravening an apprehended domestic violence order and one of having goods in custody, to short concurrent fixed terms of imprisonment.
4. The offender sought leave to appeal against his sentence raising four grounds of appeal but only ground 3 is of present relevance. One contention relied on by the offender in relation to that ground was that the offence was malicious wounding with intent, not malicious infliction of grievous bodily harm with intent, which meant it was erroneous for the judge to take into account injuries that were not woundings and were more serious than woundings, relying on what had been said by Howie J in McCullough.
5. R A Hulme J (McClellan CJ at CL and Davies J agreeing) accepted that the sentencing judge took into account all physical injuries that were inflicted upon the victim and, at no stage, did the judge comment that he was limited in the nature of the injuries that he could take in account because the charge averred wounding rather than grievous bodily harm.
6. After referring to McCullough, R A Hulme J held, at [34] and [35], that the fact that McCullough was concerned with an offence against s 35(1) and Wilkins concerned an offence against s 33 was immaterial and the same reasoning should apply equally to both. Thus, applying McCullough, it was concluded that the sentencing judge fell into error by taking into account the two facial fractures, which was said to be taking into account grievous bodily harm contrary to De Simoni.
7. It can be noted that R A Hulme J was erroneously led to believe that the case concerned s 33 in its current form, and not the form set out in [86] above, because the offence was described in the written submissions before his Honour as being contrary to s 33(1)(a), when there were no subsections or paragraphs in s 33 at the relevant time.

Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 (Bourke)

1. In Bourke, the offender pleaded guilty to an offence of malicious wounding with intent to do grievous bodily harm contrary to s 33 of the Crimes Act, in its form as at the time of the offending on 29 April 2006 (as set out in [86] above). The offender attacked the victim with an axe causing the victim to fall to the ground. The offender then struck the victim a further three times with the axe and a pole. The victim sustained the following injuries, as listed in the agreed facts: "a 10cm wound to the right forehead, right parietal occipital lacerations, subdural haemorrhage overlying the right frontal lobe, fracture of the right frontal bone, fracture of the right lateral orbital wall also involving the right frontal bone fracture of the right lamina papyracea, the third metacarpal fracture, a fractured comminuted right fronto-parietal bone, fractured comminuted right frontal bone, comminuted fractured occiput, a fractured comminuted superior orbital rim and lateral wall orbit, a right forehead laceration, a right parieto-occipital laceration, a fractured left middle finger proximal phalanx, a fractured ring finger and a lacerated exterior tendon on the third left finger. The victim has been left with a significant 10cm scar on his right forehead as well as recurring headaches and residual damage to his fingers restricting their movement."
2. The offender was sentenced to a non-parole period of 8 years with a further term of 4 years imprisonment. There was an application for leave to appeal against the sentence to this Court.
3. During the course of argument at the hearing of the appeal, the offender raised an issue based on the De Simoni principle, as recorded in Bourke at [47]. The applicant submitted that s 33, in its then current form, created at least four separate offences, or, in the alternative, at least two separate offences of malicious wounding and malicious infliction of grievous bodily harm. Relying on the reasoning in McCullough, it was submitted that because the applicant was charged with "malicious wounding" any injury which amounted to grievous bodily harm must be disregarded when considering the objective severity of the offence with which the offender was charged. It can be noted that this submission did not accurately reflect what had been held in McCullough at [38], which was that a sentencing judge was not entitled to take into account other injuries inflicted upon the victim that were not wounds and were more serious than the wounds.
4. In relation to that submission, McClellan CJ at CL noted at [49] that the form of s 33 differed from that of s 35, which had been considered in McCullough, and continued: "… 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."
5. If this reasoning is accepted as applicable in the present case, there would be no basis for upholding the appeal.
6. McClellan CJ at CL then noted that the principles discussed in De Simoni have on occasion proved difficult to apply, referring inter alia to Wilkins.
7. On the specific issue of whether the injuries that were not wounds could have been taken into account on sentencing for malicious wounding with intent to do grievous bodily harm, McClellan CJ at CL noted that, at the sentence hearing, defence counsel had not suggested that the offender should not be sentenced having regard to the injuries listed in the statement of agreed facts. The Chief Judge continued: "53 …the injuries listed in the statement [… include] 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."
8. Thus, McClellan CJ at CL held that, when sentencing for wounding with intent to do grievous bodily harm, injuries that were not wounds could be taken into account depending, not on whether they were more or less serious than the wounds as had been held in McCullough, but depending on whether they were so related to the actions which caused the wounds that they should be considered in order properly to identify the extent and consequences of the wounding.
9. Next the Chief Judge observed, at [54], that the offence for which the offender was being sentenced in Bourke included the element of intent to do grievous bodily harm and that the injuries inflicted included both wounds and, if considered alone, injuries in the nature of grievous bodily harm. His Honour then continued: "To my mind in the circumstances of this case [the sentencing judge] 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)."
10. Once again, if this reasoning is accepted as applicable in the present case, there would be unlikely to be any basis for upholding the appeal.
11. McClellan CJ at CL lastly observed, at [55], that Bourke was a case of a different character from McCullough because in the latter case the wounding was unrelated to the injuries amounting to grievous bodily harm.
12. Price and R A Hulme JJ agreed with McClellan CJ at CL. R A Hulme J also made additional comments in relation to McCullough and Wilkins. His Honour distinguished McCullough at [62] on the basis that the fractured wrist which amounted to grievous bodily harm in that case was entirely separate and distinct from the wounding, in that the wrist was not fractured in the course of the infliction of any of the wounds. By way of contrast, in Bourke, there was a direct connection between the various facial and cranial fractures and the wounds that were sustained by the victim.
13. At [63] of Bourke, R A Hulme J noted the error in Wilkins that the offence was referring to as contrary to "33(1)(a)", implying that the offence was separately described like the offence in McCullough. In addition, his Honour noted the different position taken by the Crown in Wilkins compared to the position taken in Bourke in relation to the issue of the extent to which the non-wound injuries could be taken into account. His Honour said, however, at [70], that it was unnecessary finally to determine whether the difference in form of the section involved in McCullough compared to Bourke was significant, because there was another very important point of distinction between the two cases. This was identified in the following way, at [71]: "In McCullough, the injuries that amounted to grievous bodily harm were entirely separate and distinct from the wound that was the subject of the charge. In the present case there was an extremely close connection between the wounds and the injuries that were inflicted that did not amount to wounding. That is, in my view, a very important point of distinction. In assessing the gravity of such an offence it would be quite artificial to make an assessment of the nature of the assault with disregard to injuries that were inflicted in the course of the infliction of the wounding."
14. Finally, at [72], R A Hulme J noted that this approach was not argued in Wilkins but the contention was made by the Crown in Bourke that it reflected "a practical and realistic approach". His Honour also said in that paragraph: "… At the very least, a consideration of the grievous bodily harm that was inflicted upon the victim at the same time as the wounding is necessary for the proper evaluation of the element of the offence in s 33 that elevates it above the offence in s 35, that is, the intention to inflict grievous bodily harm. It is this element that is the primary distinction between the two sections It is this element that is the primary distinction between the two sections and explains the substantial difference in the maximum penalties of 7 years and 25 years imprisonment. It is a matter of logic that the extent of the harm that was inflicted by the blows that caused the wounding, speaking generally at least, will be one indication of the degree to which the offender harboured the intention to inflict grievous bodily harm."
15. The applicant sought to distinguish the present case from Bourke on the basis that this case involved the new form of s 33 and the Crown in this case had made the deliberate tactical decision not to proceed with the charge of causing grievous bodily harm with intent and to charge the applicant with wounding with intent, instead.

Adams v R [2011] NSWCCA 47 (Adams)

1. In Adams the offender was found guilty after trial of malicious wounding with intent to cause grievous bodily harm contrary to s 33 of the Crimes Act which carried a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. The offending occurred in 2006 and as a result the previous form of s 33 set out in [86] above applied. The offender sought leave to appeal against his sentence for that offence, but did not seek to challenge sentences imposed for two other offences of assault occasioning actual bodily harm.
2. In Adams, the offender and another person went to the victim's home. The offender wielded a baseball bat and the other person wielded a heavy curtain rod. They punched and struck the victim with the implements they were holding and continued to do so for some time. During the course of the assault, the victim managed to pick up a club and used it to defend himself. The offender and the other person continued to assault the victim and he was struck on the middle right finger, crushing his fingertip, smashing the bones and causing blood to come gushing from the wound. In addition, the offender struck the victim with the baseball bat on the top of his head and caused a laceration to the scalp. The other person then left the premises. The offender, however, ordered the victim to go outside and when he was outside his house, the offender, now wielding the curtain rod, struck him across his left forearm, causing a fracture. The injuries included, but were not limited to, the crushed finger wound, the laceration to the scalp and the fractured forearm.
3. The offender's principal complaint was that he was sentenced for the offence of maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm, not the offence upon which the jury found him guilty. More specifically, it was contended that the sentencing judge's finding in relation to the objective gravity of the offence was influenced by an erroneous reliance upon a different injury inflicted upon the victim (a broken arm) which was not part of the wounds (the laceration to the scalp and a crushing injury to the finger). The offender relied on the reasoning in McCullough.
4. Latham J addressed this aspect of the applicant's argument by referring to the authorities. Her Honour noted, at [31], that, in Bourke, a significant factor leading to the rejection of the arguments pressed by the offender in Adams, was the fact that the relevant grievous bodily harm was inflicted at the same time as, and as a consequence of, the blows causing the wounding.
5. In view of this reasoning in Bourke, her Honour held there was no basis for distinguishing McCullough, as had occurred in Bourke, in the circumstances in Adams, because "it cannot be said that the fracture of the arm was an incident of the wound to the scalp". Her Honour concluded, at [33], that it was not open to the sentencing judge to take into account the broken arm in order to assess the objective gravity of the offence of wounding with intent to cause grievous bodily harm since the broken arm was not inflicted in the course of the same assault as the wounds. Latham J upheld the appeal because, in her Honour's view, the sentencing judge "clearly single[d] out the applicant for 'greater punishment' on the basis of the fracture to the arm".
6. It can also be noted that, in Adams, when considering whether the sentencing judge's assessment of mid-range of gravity for the offence of wounding with intent to cause grievous bodily harm was available (putting aside the fracture of the victim's arm) her Honour said the following, at [35]: "…there is a lack of premeditation in the commission of the offence. The nature of the injuries was at the lower end of the spectrum comprehended by grievous bodily harm. As against that, the attack upon Mr Butler was sustained, it involved blows with weapons to vulnerable parts of the body and it was committed in company. On balance, the offence fell moderately below the mid range of objective gravity." (emphasis added)
7. Thus, even though the offender in Adams was not to be sentenced for inflicting grievous bodily harm with intent to cause grievous bodily harm and Latham J was considering the objective seriousness of the offence of wounding with intent to cause grievous bodily harm, her Honour did not consider it inappropriate to assess the nature of the relevant injuries by reference to where they fell on "the spectrum comprehended by grievous bodily harm". This suggests that, in the present case, it was not an error for North DCJ merely to describe the injuries when making his assessment of objective seriousness in the following terms: "…whilst the nature and extent of the injuries clearly amount to grievous bodily harm, the lack of definite long-term sequelae must be borne in mind. Of course, given the huge range of criminality encompassed by this section, it is easy to find examples of much more serious grievous bodily harm".

Correct approach to sentencing for wounding with intent to cause grievous bodily harm

1. In my view, these authorities establish that the correct approach when sentencing for wounding with intent to cause grievous bodily harm contrary to s 33(1) of the Crimes Act relevantly involves: 1. identifying and taking into account those wounds that constitute the wounding for which the offender is being sentenced as well as those injuries that are so related to, or closely connected with, the actions causing those wounds that they properly inform a determination of the nature and extent of those wounds and their consequences: Bourke at [53] and [71]; Adams at [33]; and 2. considering the extent of the grievous bodily harm, if any, that was inflicted upon the victim at the time of the wounding in order to make a proper evaluation of the intention to inflict grievous bodily harm element of the offence: Bourke at [72].
2. Accordingly, provided the relevant injuries are correctly identified in relation to an offence of wounding with intent to cause grievous bodily harm, it is not an error to consider whether and where those injuries fit on the spectrum of grievous bodily harm when assessing the objective seriousness of such an offence in a particular case: Bourke at [72]; Adams at [35].
3. It can be noted that this approach is consistent with the approach adopted in Cao at [46] where Adamson J (Hoeben CJ at CL and Davies J agreeing) held that the sentencing judge was entitled to take into account injuries resulting from punches that caused the wounding in that case, including a fracture to the victim's medial wall orbit because the fracture was relevantly "associated with" the wounding. The approach also reflects the more general position that where a course of unlawful conduct gives rise to a number of possible charges but the prosecution proceeds on one count only, it does not follow that the surrounding conduct can never be taken into account in sentencing in order to assess the degree of seriousness with which the charged offence should be viewed: Einfeld at [146]; Lago v R [2015] NSWCCA 296 at [49] (Gleeson JA, Button and Fagan JJ agreeing). The particular circumstances in which uncharged conduct can be taken into account and the specific purposes of doing so when sentencing have been discussed in a number of more recent authorities: LN v R [2020] NSWCCA 131; Ragg v R [2022] NSWCCA 150; GL v R [2022] NSWCCA 202.
4. In reaching these conclusions, I have concluded that the approach endorsed by McClellan CJ at CL, Price and R A Hulme JJ in Bourke, to the extent that it is inconsistent with the approach adopted by Howie J in McCullough, is to be preferred in light of both the logical and practical considerations identified above. In addition, it was noted in Cao at [37] that Howie J's comments in McCullough were obiter dicta in light of his Honour's observation at [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 … The sentence before discount should be 4 years."
5. I am also of the view that the reorganisation of parts of s 33 of the Crimes Act effected by the amendments which commenced in February 2008 is unlikely to have been intended by Parliament to lead to a significant difference in approach to sentencing for wounding with intent to cause grievous bodily harm, but it is not necessary to decide that point in this case.

Was the correct approach adopted in the present case?

1. In the present case, North DCJ found that the wounding and other injuries were inflicted in one violent attack, in which the applicant was a participant and for which the applicant was responsible. Thus, the present case can be distinguished from Adams where the fracture of the arm occurred in the course of an entirely different assault from the assault in which the wounds were inflicted.
2. Apart from the 12.5 centimetre laceration to the side of the head, his Honour found that it was not possible to make any findings as to the precise mechanism of causation of the non-displaced fracture of the right parietal, right temporal bone and the greater wing of the right sphenoid, the haematomata in the right temporal and right front parietal regions, the swelling to the right side of the scalp and face, tenderness in the neck, chest wall, hip and pelvis, and the bruising on the left knee. This was, however, not of particular significance since all of the injuries had been inflicted in the one attack and a most, if not the most, serious injury was the 12.5 cm laceration which was conceded to be a wound. In order to assess the full extent and consequence of the wounding and its seriousness in all the circumstances, it was at least open and appropriate and may have been necessary for the sentencing judge to consider all of the injuries suffered in that one attack. For reasons similar to those given in Bourke, North DCJ's taking into account all those injuries did not have the consequence that the applicant was sentenced for a more serious offence than the offence of which he was convicted or for an aggravated form of the offence.
3. Furthermore, because the intention of causing grievous bodily harm, when the wound was inflicted, was an element of the offence for which the applicant was being sentenced, the sentencing judge was required to form an assessment of the seriousness of this element as part of the overall assessment of the objective seriousness of the offence. To do so, it was appropriate and perhaps necessary for North DCJ to consider the nature and extent all of the injuries inflicted during the one attack in which the wounding was inflicted.
4. In these circumstances, the sentencing judge's finding that "the nature and extent of the injuries clearly amount[ed] to grievous bodily harm" did not mean that the applicant was erroneously sentenced for the offence of causing grievous bodily harm with intent to cause grievous bodily harm and not the offence of which he had been convicted, namely wounding with intent to cause grievous bodily harm.
5. For all of these reasons, I reject the applicant's contention that in sentencing the applicant North DCJ breached any of the principles referred to in De Simoni or that the applicant was sentenced for an offence of which he was not convicted.

Was there a miscarriage of justice?

1. The other way in which the applicant put his case was that there was a miscarriage of justice because the question of whether the injuries amounted to grievous bodily harm was a matter for a jury to determine, if the applicant had been charged with causing grievous bodily harm with intent, which did not occur. This was said to have come about because the Crown chose, for tactical reasons, to charge the applicant on count 1 in the new indictment with wounding, rather than inflicting grievous bodily harm, with intent to cause such harm and, as a consequence, the applicant was deprived of the jury's determination of whether the injuries amounted to grievous bodily harm. In these circumstances, it was contended that the sentencing judge's finding and taking into account that the injuries amounted to grievous bodily harm constituted a miscarriage of justice.
2. Although the count on which the applicant was convicted was wounding, rather than causing grievous bodily harm, with intent to cause grievous bodily harm, it does not follow that the sentencing judge's finding that the victim's injuries amounted to grievous bodily harm was "inconsistent with the verdict as the fact of grievous bodily harm was never left for the jury's consideration" or that there was any miscarriage of justice, as the applicant contended.
3. In Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (Cheung), Gleeson CJ and Gummow and Hayne JJ explained the distinct roles of the jury and the sentencing judge when an offender was convicted after a trial as follows: "4. When an accused person is tried upon indictment before a judge and jury, the role of the jury is to decide whether the accused is guilty or not guilty of the charge or charges laid in the indictment. That involves determining the issue or issues joined between the prosecution and the accused. Such issue or issues are defined by the terms of the indictment, and by the plea. If the accused is found guilty, then it is the responsibility of the judge to determine the appropriate sentence. That will normally involve a discretionary decision, subject to any statutory constraints such as a specified maximum penalty. 5. The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and insofar as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability. That is not unusual. It is commonplace."
4. In the present case, the jury found the applicant guilty of wounding with intent to cause grievous bodily harm. In reaching its verdict in this regard, the jury must be taken have turned its attention to the issue of whether, on all the evidence, they were satisfied that the Crown had proved beyond reasonable doubt that the applicant had the intention of causing grievous bodily harm when he wounded the victim. It can be accepted that, in considering this issue, the jury would have been required to take into account how the injuries were inflicted when the victim was wounded and the nature and extent of those injuries.
5. The applicant having been found guilty of the offence of wounding with intent, it was the duty of the sentencing judge to determine the appropriate sentence having regard to, inter alia, the seriousness of the offending. That depended, in a case such as the present, on factors which included the seriousness of the injuries inflicted, including the wounding and other injuries inflicted in the assault in which the wounding occurred. Some of the relevant principles to be applied in this regard have been set out in R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587 and these have been referred with approval by the High Court in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [24] and Cheung at [13] and [14]. Those principles relevantly include: 1. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. 2. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. 3. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt. 4. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender.
6. As noted above, the seriousness of an offence of wounding with intent to cause grievous bodily harm will depend upon the nature and extent of the wounding and related injuries, the manner in which, and the intention with which, the wounding was inflicted and the other circumstances surrounding the wounding. Accordingly, the sentencing judge in the present case was entitled, and required, to make findings of fact in relation to those matters, provided they were consistent with the jury's verdict and, in so far as they were findings against the offender, established beyond reasonable doubt.
7. There is no doubt that North DCJ approached the sentencing exercise in accordance with those principles and requirements, given his Honour's comments relating to those matters in his remarks on sentence.
8. The fact that the Crown did not proceed on the indictment charging the applicant in count 1 with grievous bodily harm with intent to cause grievous bodily harm and chose to present a new indictment charging the applicant with wounding with intent to cause grievous bodily harm does not change that conclusion. Even though the jury was not required to determine whether they were satisfied beyond reasonable doubt that the applicant had inflicted grievous bodily harm, there was no injustice or miscarriage as a result of the sentencing judge making such a finding as part of the process of sentencing the applicant for the offence of which he was found guilty. The sentencing judge's findings as to the actual wounding and related injuries suffered by the victim in the course of the single violent attack were open on the evidence and consistent with the jury's verdict. Similarly, the finding that the applicant had the intention of causing grievous bodily harm was consistent with, and indeed required by, the jury's verdict.
9. Further, North DCJ was required to consider the nature and extent of all the victim's relevant injuries in relation to both the wounding element and the intention element of the offence for which he was sentencing the applicant. His Honour's characterisation of those injuries as "serious injuries … inflicted in company as part of a joint criminal enterprise by the [applicant] … [and] whilst the nature and extent of the injuries clearly amount to grievous bodily harm, the lack of definite long-term sequelae must be borne in mind … [but] it is easy to find examples of much more serious grievous bodily harm" was open on the evidence and consistent with the jury's verdict. Such a finding was a legitimate part of the sentencing judge's function and did not involve any miscarriage of justice or other error on his part, especially in light of the fact that the injuries were all inflicted as part of the one attack in which the victim was wounded and the seriousness of all the relevant injuries properly informed an assessment of the intention element of the offence of which the applicant had been found guilty.
10. In addition, a fair and not overly critical reading of the remarks on sentence makes it clear that the sentencing judge was well aware of the offence for which he was sentencing the applicant. Moreover, the characterisation of the victim's injuries suffered in the attack as amounting to grievous bodily harm was merely to describe them as involving really serious bodily injury, a characterisation that was well open in the circumstances. This characterisation was qualified by North DCJ's other comments that lack of definite long-term sequelae should be borne in mind and that it was "easy to find examples of much more serious grievous bodily harm". The sentencing judge's use of the words "grievous bodily harm" did not, in the context of the remarks as a whole, establish that he usurped the function of the jury or that there was any miscarriage of justice.
11. Finally, the applicant's contention that there is a "principle that it is for a jury to determine whether any injuries amount to grievous bodily harm and not a judge on sentence" should not be accepted as a proposition of universal application. It is the jury's task to determine the issue of whether the injuries in question amount to grievous bodily harm when the infliction of grievous bodily harm is an element of the offence in relation to which the jury is required to deliver its verdict. Otherwise, the jury is not required to determine, and its verdict will be silent as to, that issue. In such cases, the sentencing judge may be required to determine, inter alia, the degree of culpability of the offender's conduct by reference to various matters including the seriousness of relevant bodily injuries inflicted. When such an assessment is required, it is permissible, where the injuries are really serious, for the sentencing judge to describe the injuries as amounting to grievous bodily harm.
12. For all the reasons given above, in the present case there was no principle of law beached by the sentencing judge because he found that the victim's injuries amounted to grievous bodily harm even though the jury did not determine that issue.
13. Accordingly, I reject the second way in which the applicant put its challenge to the sentence in the present case.

Proceedings on sentence

1. I am confirmed in my views by the fact that, during the sentence proceedings, counsel who appeared for the applicant at that time expressly did not take issue with the injuries that were set out in the proposed facts provided to North DCJ, [2] and accepted that in assessing the seriousness of the wounding "a constellation of injuries is relevant but the most important injury has to be the wound, that's the subject of the offence, and it's also the most proper starting point" but he stated that he was not submitting that the other injuries could be ignored. [3]

Conclusion

1. The applicant has not succeeded on either of the ways in which he put his case in relation to his sole ground of appeal. Nonetheless, the ground of appeal was arguable and deserved detailed consideration. As a result, I would grant leave to appeal but would dismiss the appeal.

Proposed orders

1. For these reasons, I propose that the Court should order: 1. The applicant has leave to make his application out of time. 2. The applicant has leave to appeal. 3. The appeal is dismissed.
2. CAVANAGH J: I agree with Wright J for the reasons his Honour has given.

Endnotes

1. Tcpt 5 February 2020 p. 3.
2. Tcpt 20 November 2020 p 13 ll 8-9.
3. Tcpt 20 November 2020 p 39 ll 26-29 and 46-48. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2022