Newman v R [2015] NSWCCA 270 | Case summary

Applicant's subjective circumstances and antecedents

The Applicant was born on 14 February 1992 and was therefore 21 years old at the date of the offence. He had an extremely unstable early childhood. His mother abused alcohol and cannabis from when he was an infant. She had four other children, none of them to the Applicant's father. One of the other four children died and the others were taken from their mother's care by the Department of Community Services.
The Applicant's father obtained custody of him when he was 22 months old. His father had another partner and she had other children. Until the Applicant was 5 years old he continued to have contact with his mother but this was physically and emotionally abusive.
At school the Applicant had significant learning problems. By 2007 (at age 15) he was assessed as having a borderline intellectual deficiency. By that date he was residing in a residential care unit managed by the Uniting Church. His scores on various tests of general intelligence placed him in the third percentile (scoring better than or equal to 3% of children his age). The psychologist who assessed the Applicant in October 2007 considered that he had been "severely impacted by a compromised and chaotic growing up experience" and referred to "abuse and neglect in his early childhood [which] may have impacted his social and behavioural development". This background was found to have contributed to "severe conduct issues and antisocial behaviour". He was at that time recorded as having a history of chronic depression and "possible psychotic thought disturbance". He was being medicated for depression.
In May 2013 a coordinator of the Uniting Church Residential Care Facility where the Applicant had resided issued a report in his capacity as the Applicant's "former caseworker and program coordinator". This report included the following: "Due to the traumas [the Applicant] experienced in his past [he] presented some challenging behaviours which at times resulted in physical violence/outbursts where [he] would appear to go into a deep rage and could not be reached by reasoning. No one was ever harmed during these episodes rather furnishing and walls would be punched. …. [the Applicant] made significant development growth in his two years living in [the facility] and on reaching 18 years old moved into independent living and is currently doing well in his relationship and social functioning. I believe that [the Applicant] poses no danger to himself or the public and while not knowing the circumstances to his current dilemma, in knowing him, believe this to be out of character."
In a report dated 30 October 2013 a psychologist who had worked with the Applicant on trying to manage his behaviour reported that he "was able to identify binge drinking as a contributing factor to having difficulty managing anger outbursts". The psychologist found that attempts to set the Applicant goals and strategies to amend his behaviour were impeded by the limitations of his poor ability in reading and writing.
Ms Guilfoyle provided a letter to the Court which was received in evidence on the sentence proceedings. She stated that the Applicant regretted what had occurred in the attack on Mr Hanslow and that he had not consumed alcohol since the incident. Ms Guilfoyle said that their relationship continued and that she is engaged to be married to him. Medical evidence before her Honour established that he had suffered from depression for some years prior to this offence and was using prescribed antidepressant medications.
His adult criminal record consists of an offence committed in July 2010 (aged 18 years): destroy or damage property and enter enclosed land without lawful excuse, ordered to pay fines of $100 in each case. Children's Court matters have been considered but are not further identified in these reasons, having regard to s 15A, Children (Criminal Proceedings) Act 1987 (NSW) and the fact that the reasons will likely be available to the public on the internet.

Objective seriousness and consistency with comparable cases

In so far as there was only one blow inflicted and the injury sustained by the victim was moderate and without lasting effects, the wounding in this case was, as her Honour said, at the lower end of the scale of seriousness. Notwithstanding the intent necessarily found by the jury, the bodily harm actually inflicted by the Applicant was not in the event grievous: compare Haoui v R [2008] NSWCCA 209. On the other hand, the offence was aggravated by the circumstances that the offender used a weapon (s 21A(2)(c), Crimes (Sentencing Procedure) Act) and the victim was vulnerable (s 21A(2)(l)).
The circumstances which give rise to the offence of wounding with intent to cause grievous bodily harm vary widely and the range of culpability for the offence is vast. Whilst recognising that sentences passed in other more or less comparable cases cannot be treated as confining the sentencing discretion within boundaries different from those laid down by Parliament (Hili v The Queen (2010) 242 CLR 520 at [54]), some consideration of sentences imposed on other occasions is essential if consistency is to be achieved.
In order to take into account, at all, a sentence passed upon a different offender for an offence against the same section but arising out of unrelated circumstances, regard must be had to all of the factors which the sentencing court had before it on that other occasion. That is, the objective circumstances of the commission of the offence, whether sentence was passed following a plea of guilty or after a trial, the antecedents and personal attributes of the offender, whether a standard non-parole period was applicable and so on. In Wong v The Queen (2001) 207 CLR 584 at [59], Gaudron, Gummow and Hayne JJ held: "[59] Similarly, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass a sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were." (Emphasis in original).
That passage has equal application when this Court is considering whether a sentence passed at first instance was manifestly excessive. Wong v The Queen (supra) was concerned with sentencing for offences against Commonwealth laws but the passage quoted is concerned with sentencing principles generally and is not founded upon anything peculiar to Commonwealth criminal law.
Also in Wong v The Queen (supra) Gleeson CJ said: "[6] … All discretionary decision making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency."
The requirement of reasonable consistency, to be sought by consideration of all features of comparable cases, was reiterated in Hili v The Queen (supra), in the judgment of the plurality. After quoting the above passage from the judgment of Gleeson CJ their Honours said: "[53] Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. … Care must be taken, however, in using what has been done in other cases. [54] In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [303]-[305], Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts'. But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence'. When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'."
These principles were reiterated in Green v The Queen (2011) 244 CLR 462, a case concerning sentencing under the Drug Misuse and Trafficking Act 1985 (NSW). At [28] and [29] French CJ, Crennan and Kiefel JJ referred to both Wong v The Queen (supra) and Hili v The Queen (supra) in support of the requirements of "systematic fairness" and "reasonable consistency" in sentencing, applying "to persons charged with similar offences arising out of unrelated events" as well as to the punishment of co-offenders under the parity principle.
In a number of decisions of this Court concerning sentences for offences against s 33(1) the objective gravity of the wounding has been reasonably comparable to that inflicted by the Applicant upon Mr Hanslow. Some of the cases considered below involved a less serious attack upon and injury to the victim and some were more serious in these respects. It is evident from the sentencing decisions that the degree of severity of the wound or bodily harm actually inflicted and any long term effects of the injury upon the victim are factors to be given considerable weight in determining the length of the sentence.
The comparable cases considered below include some involving charges under s 33(1)(b) (causing grievous bodily harm with intent to do so). An offence charged in those terms inherently involves an allegation of a more serious outcome for the victim than in the case of an offence under s 33(1)(a) (of which the Applicant was convicted). However there is no sharp delineation between the class of violence and injury which may be charged under subpar (a) and that which may be charged under subpar (b). Some more serious instances of wounding may be not greatly different from lower order instances of grievous bodily harm. Accordingly, it is warranted to consider some of the s 33(1)(b) cases for comparative purposes.
The following cases are considered in a sequence which follows, generally, an ascending order of seriousness of the wound or bodily harm inflicted. Porter v R [2015] NSWCCA 59 is an exception, where this Court evidently attributed the objective seriousness of the offence in large part to the circumstance of the offender having sought out the victim on the latter's rural property late at night, rather than to the degree of violence and injury. Each of the cases referred to was decided against the yardstick of a standard non-parole period of 7 years.
In R v Rudd [2010] NSWCCA 71 a 62 year old man of otherwise good character struck a single blow with a machete to the arm of the victim, in an altercation which was the culmination of a long running dispute between neighbours in a country location. He pleaded guilty to a charge under s 33(1)(a). After allowing a 15% discount for the offender's plea, a head sentence of 3 years was imposed, with a non-parole period of 2 years to be served by way of periodic detention. Without the discount this would have been 3 years 6 months and a non-parole period of 2 years 4 months. A Crown appeal against inadequacy was dismissed.
In R v Dickinson [2004] NSWCCA 457 the offender attended a dwelling occupied by his former female partner. He was 25 years old. He attacked with a knife a man who had formed a relationship with her. The victim's hands were cut seriously in the course of defending himself. At first instance, following a plea on arraignment to a charge under s 33(1)(a), a head sentence of 2 years was imposed, wholly suspended. On a Crown appeal to this Court the sentence was increased to a fixed term of 2 years and 2 months to be served by way of periodic detention. This would have been 2 years and 6 months but credit was allowed for 4 months under which the offender had been subject to the suspended sentence prior to determination of the appeal. If there was a discount for the plea it is not stated in the judgment. Any discount must have been slight as the plea came late. The fact that this was a Crown appeal contributed to the lenience shown. Barr J "would at first instance have imposed a sentence of full time custody": [40].
In Nowak v R [2008] NSWCCA 89 the 21 year old offender attended a wedding reception and was asked to leave after heated words between three of his friends, on the one hand, and members of the wedding party on the other hand. As he was being escorted from the premises the offender swung a vodka bottle at the face of one of the persons escorting him, breaking the bottle over the victim's face causing facial lacerations and a broken nose. On pleading guilty to a charge under s 33(1)(a) the offender was sentenced to imprisonment for 3 years comprising a non-parole period of 1 year and a balance of the term of 2 years. This was after allowance of a 25% discount for an early plea of guilty. Without the plea of guilty the head sentence would have been 4 years, comprising a non-parole period of 1 year and 4 months and a balance of the term of 2 years and 8 months. The offender was a university student of otherwise good character. A severity appeal was dismissed.
In R v Miria [2009] NSWCCA 68, as the victim attempted to leave a hotel in the early hours of the morning, the offender raised a schooner glass above his head in his right hand and brought it down to smash it over the back of the head and neck of the victim. He pleaded guilty to a charge under s 33(1)(b) at the earliest opportunity and in the District Court was sentenced to 2 years imprisonment wholly suspended following implicit allowance of a 25% discount. Over the previous 5 years the offender had committed three other assaults in hotels. He was on a recognisance to be of good behaviour at the time of this offence. The judgment of this Court on the Crown's appeal against the inadequacy of the sentence does not reveal the age of the offender. The Crown's appeal was upheld and he was sentenced to a term of 4 years, with a non-parole period of 2 years and a balance of the term of a further 2 years. In resentencing, this Court expressly allowed the 25% discount, without which the head sentence would have been 5 years and 4 months with a non-parole period of 2 years and 8 months.
R v Chisari [2006] NSWCCA 19 also concerned a charge under s 33(1)(b). The offender injured a police officer during an incident concerning the towing away of the offender's motor vehicle which had been illegally parked. He rammed the police officer with his vehicle. The officer had to jump onto the bonnet to avoid being crushed. His arm was then broken when he rolled off the bonnet as the offender accelerated away. The officer sustained a degree of permanent disability in the arm as a result. Following a trial and a verdict of guilty, a lenient sentence was determined in the District Court. On a Crown appeal this Court imposed a head sentence of 5 years, with a non-parole period of 2 years and 6 months, the balance of the term being a further 2 years and 6 months. The offender had a minor criminal record and was aged 27 years at the date of the offence.
Chen v R [2011] NSWCCA 85 was a severity appeal concerning a charge under s 33(1)(b). The offender with three others attended the victim's office seeking to recover a disputed debt claimed by the offender. The offender and others punched the victim and when he fell to the floor the offender stabbed him in the chest area and thereafter continued to punch and kick him. The victim suffered a severe laceration to his right wrist and superficial wounds to the chest, abdomen and forearm. The offender pleaded guilty about three weeks before the date fixed for his trial and a 15% discount was allowed. There was a strong subjective case in terms of otherwise good character and positive community involvement. He was aged 49 years and in a stable domestic relationship. A head sentence of 5 years was imposed with a non-parole period of 3 years. Without the discount this would have been 5 years 10 months with a non parole period of 3 years 6 months.
The offender in Porter v R [2015] NSWCCA 59 was charged under s 33(1)(a). In furtherance of a dispute concerning theft of motorcycles from the victim's property, in relation to which one of the occupants of the property had made allegations about the offender to police, the offender attended the property at 1:45am armed with a machete. The victim was woken by the offender knocking on the door and went outside to investigate. He saw that the offender was concealing something behind his back and sought to restrain him. The offender pushed the victim to the ground and struck him with the machete. The victim defended himself with his left arm and sustained an 8 centimetre laceration which required suturing. The offender fled the scene. The offender was 21 years old, of Aboriginal background with a history of loss of family members in violent circumstances, symptoms of post traumatic stress disorder and possible mild intellectual disability. He was allowed a 25% discount for an early plea of guilty. A head sentence of 5 years with a 3 year non-parole period was imposed, which would have been 6 years and 8 months with a non-parole period of 4 years but for the discount. This Court dismissed a severity appeal. At [51] the features of the incident which were particularly noted as contributing to its seriousness were that the offender went to a rural residential property in the early hours of the morning to disturb the occupants, carrying a machete in furtherance of an existing dispute, escalating it to one of violence using a weapon.
Heron v R [2006] NSWCCA 215 was another s 33(1)(b) case. During an argument in a hotel the victim escalated the confrontation to a physical struggle. In the course of this the offender tackled the victim causing him to crash into the front door of the hotel, smashing some glass which cut the victim's scalp. As the struggle continued the offender struck the victim with a glass causing him to fall to the floor with a "gaping wound to his facial area and under the throat on the left side". This required a large number of stitches although the long term effects on the victim were slight. The offender was 32 years of age, of Aboriginal background, respected in the community for work with rural youth. He had two prior convictions for common assaults. He was sentenced after trial in a manner which this Court found to involve error. On resentencing a head sentence of 7 years was imposed with a 4 year non-parole period.
In R v Pearson [2002] NSWCCA 429 the charge was laid under s 33(1)(b). The offender attended at the home of the victim, who had commenced a relationship with the offender's estranged wife. At the time the victim was severely disabled with a fractured femur and injuries to his knees and to one ankle as a result of a motor accident. He was wheelchair bound. After the front door of the victim's home was opened by the offender's estranged wife, the offender forced his way inside and found the victim lying on a futon bed. The offender punched the victim repeatedly, applied pressure to his throat with his thumbs as if to strangle him, then kicked him in the stomach, face and legs, stomped on his head, fractured his jaw, jumped on him and stabbed him in the left shoulder and neck. The victim's injuries included split ears, a fractured jaw requiring the insertion of metal plates, stab wounds, chipped front teeth and a fractured rib. After a guilty verdict following trial the offender received a head sentence of 7 years with a non-parole period of 4 years and a balance of the term of 3 years. His severity appeal was dismissed. The offender was 37 years old. He was sentenced on the basis of a sustained attack which was planned and premeditated.
In Connelly v R [2009] NSWCCA 293 the charge was laid under s 33(1)(b). The victim, accompanied by his female partner and with a baby in a stroller, entered the front yard of the offender's property and enquired of him about repayment of a small debt. The offender came out of his house and pushed the victim over, causing the pram to capsize and the baby to become distressed. The pushing on this occasion was an assault which was taken into account on sentencing for the s 33 offence committed shortly thereafter. The victim left the property. The offender followed in a car, caught up with him and attacked him with a short baseball bat. The victim was struck heavily over the head, inflicting a ruptured cornea of one eye. As a result the victim suffered permanent loss of sight in that eye, which had to be removed. He suffered severe fracturing of the eye socket. This was repaired with multiple plates and screws. The loss of sight in one eye cost the victim his employment as a boilermaker and he suffered consequential physical and psychological symptoms.
The attack had taken place in the presence of the victim's wife and baby. The offender entered a late plea of guilty for which 15% discount on sentence was allowed. He was found to be of very low intelligence with some brain injury causing mild intellectual impairment. At first instance he received a head sentence of just under 6 years with a non-parole period of just under 3 years 6 months. Without the 15% discount this would have been a 7 year head sentence with a non-parole period of 4 years and 1 month and a balance of the term of 2 years and 11 months. A severity appeal was dismissed.
In Muggleton v R [2015] NSWCCA 62 the offender was charged under s 33(1)(a) and pleaded guilty. In a beer garden, after drinking all afternoon and evening, the offender without provocation smashed a schooner glass forcing it into the victim's face and held him by the neck and kneed his face and punched him. The victim suffered lacerations to his cheek, lips and nose and required a skin graft to repair the injury to the nose. The victim's fiancé and their four children had witnessed the incident and the aftermath as they had come to the hotel to collect him. At the time of sentencing the victim suffered ongoing anxiety, depression and post traumatic stress disorder. The offender was found himself to suffer from post traumatic stress disorder as a result of an assault upon him some eight years earlier. He pleaded guilty and was allowed a 15% discount on sentence. He was of otherwise good character and valued in his employment. The sentencing judge imposed 6 years and 6 months with a 4 year non parole period which, without the discount would have been 7 years and 7 months [54] with a non parole period of 4 years 8 months. The offender's severity appeal was dismissed.
The attack and its consequences in R v Dickinson (supra) were of an order of seriousness similar to the present case. The moderate penalty outcome in the case flowed from it being a Crown appeal: considerable restraint was exercised when resentencing. The attack in R v Rudd (supra) was again of objective seriousness comparable to the present case but without the aggravating element of vulnerability of the victim. Also, it concerned a 62 year old offender of otherwise good character who had felt himself harassed by the conduct of the victim over the long course of a dispute between neighbours. These background circumstances explain a lenient penalty.
Nowak v R (supra) and R v Miria (supra) are comparable, in degree of seriousness of the wounding, to the present case. The sentences imposed in each of those cases, after making due adjustment for the discounts which were allowed, were notably less than the penalty imposed by her Honour on the Applicant. The subjective circumstances taken into account in Novak v R and in R v Miria were different from those relevant to the Applicant and neither of those cases involved the aggravating circumstance of an attack on a vulnerable person on a mobility scooter. Nevertheless, even when allowance is made for those variances a significant inconsistency of sentencing would be apparent if the term fixed by her Honour were allowed to stand.
The violence of the attack in each of Chen v R (supra) and R v Chisari (supra) was considerably greater than that made by the Applicant and the degree of injury inflicted on the respective victims was substantially more than was occasioned to Mr Hanslow. Chen and Chisari were both sentenced for having caused grievous bodily harm under s 33(1)(b). Yet the sentence imposed in each of these cases was less severe than that imposed on the Applicant, markedly so in the case of Chisari. Again, consideration of the other circumstances and factors relevant to sentence in each of these cases does not permit reconciliation of the sentence imposed upon the Applicant by her Honour with the sentences imposed in Chen and Chisari.
In Porter v R (supra) the nature of the physical attack, the weapon and the consequent injury to the victim were comparable to those aspects of Rudd v R (supra). It appears that the relatively stern sentence imposed in Porter v R was attributable to the wider circumstances, in particular the fact that the offender had sought out his victim by visiting his property in the middle of the night. In contrast with those facts, the most closely comparable cases considered here have involved spontaneous confrontations and violence - like that of the Applicant. The fact that it was the wider circumstance which the Court in Porter v R regarded as so influential make it a poor comparator for the purposes of determining whether the sentence passed on the Applicant has been shown manifestly excessive upon considerations of consistency.
The attack in R v Pearson was very much more sustained and severe than that made by the Applicant upon Mr Hanslow. The injuries inflicted upon the victim in R v Pearson were significantly more serious; they amounted to grievous bodily harm and the charge was laid under s 33(1)(b). The attack occurred during a purposeful invasion of the victim's home. Yet the overall term imposed by her Honour upon the Applicant and the non-parole period were in each case only 6 months less than those of the sentence imposed in R v Pearson. The imposition of a sentence upon the Applicant nearly as great as that imposed in R v Pearson cannot be rationalised by reference to any of the other circumstances of the respective cases. The victim in R v Pearson was also vulnerable, perhaps even more so than Mr Hanslow.
Both Heron v R (supra) and Muggleton v R (supra) involved glass attacks in hotels, the attack and the level of injury inflicted having been more severe in the latter case than in the former as reflected in the relativity of sentences between the two. The attack by the Applicant in the present case and the injury inflicted were much more moderate than in either of these two sentencing decisions, to a degree not adequately reflected in moderation of the sentence imposed by her Honour upon the Applicant.
Connolly v R is another instance of an attack vastly more serious than that perpetrated by the Applicant and with consequences far more grave for the victim. Yet the head sentence imposed on the Applicant was only 6 months less than the starting point pre-discount sentence adopted in Connolly v R and the non-parole period was only 7 months less.

Newman v R

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Judgment (6 paragraphs)

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Legislation Cited (4)

Cases Cited (16)

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