R v Agius No. DCCRM-99-440 [2000] SADC 29

"In my opinion, however, it is now well settled that a sentencing judge may not take into account as matters of aggravation facts established in the evidence which would have rendered the offender liable to a more serious penalty than that which is prescribed for the offence to which he has pleaded guilty or of which he has been found guilty. Thus, as in the present case, 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 facts which would have rendered the offender liable to a more serious penalty."

His Honour then went on to deal with the two offences and pointed out that the offence of maliciously inflicting grievous bodily harm was more serious than the offence of assault occasioning actual bodily harm in that the maximum penalty was higher. He then considered the difference between the two offences. He concluded there are two fundamental differences. The first is the state of mind with which the two offences are committed and the other is the consequences of the act done by the offender. He noted that for the offence of assault occasioning actual bodily harm the prosecution needs only to establish a deliberate act which amounts to assault but does not have to establish an intention on the part of the offender to cause actual bodily harm. For the offence of maliciously inflicting grievous bodily harm, however, the prosecution must establish that such harm was inflicted maliciously, that is, that the offender inflicted it with the intention of injuring the victim or that he had done so recklessly, that is, that he had foreseen the likelihood of such injury and continued on nevertheless.

Ms McDonald for the Director of Public Prosecutions submitted that in order for the defendant to be convicted of the more serious offence, the prosecution would have to prove that she inflicted grievous bodily harm on the victim, that the act was malicious and unlawful and that the defendant at the time of doing that act, did so with the intent of preventing or resisting lawful apprehension. In contrast, to establish the offence of assault with intent to resist or prevent lawful apprehension, the prosecution, in this case, would have to establish that the defendant struck or applied physical force to the victim and that the striking or application of physical force was intentional and unlawful and that it was done with the intention of resisting or preventing lawful apprehension. She conceded that the prosecution does not seek to establish that the defendant acted maliciously. Ms McDonald accepted that the prosecution could not establish that the defendant intended harm to result to Mr Lewis or that she had acted recklessly, that is, that she foresaw the likelihood of harm resulting from her conduct. Ms McDonald submitted that in those circumstances, the prosecution could not establish the more serious charge and the appropriate charge was therefore the charge to which the defendant pleaded guilty. I consider there is force in Ms McDonald's submission.

She further submitted that in sentencing the defendant, the Court should take into account the consequences of the defendant's conduct. In the circumstances, to take into account the injuries suffered by Scott Lewis would not mean that the defendant was being sentenced for a more serious offence than that to which she had pleaded. Ms McDonald particularly referred to section 10 of the Criminal Law Sentencing Act which requires the Court to have regard to circumstances of the offence and any injury, loss or damage resulting from that offence. I do not consider, however, that section 10 permits the Court to take into account matters of aggravation such as injury, loss or damage which would amount to a more serious offence than that to which the defendant has pleaded guilty. She also referred to section 7 of the Criminal Law Sentencing Act which requires the Court to have regard to the victim impact statement. Section 7 of the Criminal Law Sentencing Act 1988, provides that :

"The prosecutor must, for the purpose of assisting the court to determine sentence for an offence, furnish the court with particulars ..... of injury, loss or damage resulting from the offence."

Again that only requires the prosecution to furnish the Court with the details of injury, damage or loss resulting from the offence. If, however, the Court were to determine that such injuries are not relevant, or to take them into account would result in the defendant being sentenced, in effect, for a more serious offence, then the prosecution could not rely upon section 7 to justify the leading of that evidence.

I conclude, however, that in taking into account the injuries suffered by Scott Lewis during and immediately after the assault that would not have the result of the defendant being dealt with for the more serious offence of causing grievous bodily harm with intent to avoid lawful apprehension. I consider that the prosecution must also establish malice for the defendant to be guilty of the more serious offence and malice has not been established or sought to be established. I accept that for the purpose of sentencing the defendant, I must treat her on the basis that she neither intended nor foresaw the serious harm that has resulted.

It was further submitted by Mr Lang that if the defendant did not foresee that harm would result nor intend any harm to result from her conduct, then the result of her conduct was irrelevant and should be excluded.

In R v Teremoana Cox J considered that question. He observed that the harm that a crime causes a victim will usually be a relevant factor in sentencing a defendant, certainly where the harm was intended and sometimes where it was not, provided of course, that to take it into account would not amount to punishing the defendant for some other more serious crime. He went on to observe that it was impossible to generalise and he said in cases where the consequences were not foreseen, each case may depend upon its circumstances. For example, in R v McCormack and Others [1981] VicRp 11; [1981] VR 104, the Full Court of Victoria held that in sentencing a defendant for unlawful riotous assembly, it was open to the sentencing judge to take into account the potential danger to person and property which was foreseeable, insofar as the aggravating circumstances which were taken into account, did not amount to a graver offence. If actual injury took place, that could be taken into account. Cox J noted that sections 7 and 10 of the Criminal Law Sentencing Act appear to assume the relevance of the victim's situation to the issue of sentence. Furthermore, the general proposition that consequences of conduct are always a factor in assessing the gravity of the crime must be considered in the circumstances of each case. Cox J went on to say at page 39 :

"The fact that an offence of a certain type is sometimes accompanied by a particular serious result - death, say, or injury - will normally be taken into account in determining the proper sentence, at least as a measure of the inherent gravity of the offence, whether or not the risk was actually foreseen by the defendant himself. It may be otherwise where the result was not reasonably foreseeable. Compare Feldman v Samuels [1956] SASR 55; R v Boyd [1975] VicRp 16; [1975] VR 168; R v McCormack [1981] VicRp 11; [1981] VR 104 at 108; R v Mayne (1987) 137 LSJS 100; and for the position under the Criminal Damage Act 1971 (UK), before and then, by contrast, after the controversial decision in R v Caldwell [1982] UKHL 1; [1982] AC 341, see the interesting commentary to R v Booker (1982) 4 Crim App R (S) 53 in [1982] Crim LR 378. It is unnecessary to express a firm opinion about a risk of physical injury that is obviously foreseeable, but it is in fact not foreseen by a particular defendant, in the case of section 85 because the trial judge in the present case has found that the prisoner realised that the bedroom he was breaking into in the middle of the night, and proposed to set on fire, was likely to be occupied by Mrs Dal Santo and that starting the fire might well involve a risk of physical danger to her. Such a serious and actually foreseen possible consequence was plainly a relevant circumstance surrounding the commission of the criminal act of which the jury convicted the prisoner, and one to which, on general principles, the trial judge is entitled to have regard when imposing sentence, in my opinion, unless to do that would amount to punishing the prisoner for some other serious crime with which he has not been charged."

In this case it is accepted that the defendant did not foresee the consequences of her conduct being the serious injury suffered by the victim, nor in my view, could a reasonable person in her position have foreseen such a serious result. In those circumstances, the very question posed by Cox J in Teremoana and left open by him, remains for consideration.

Having considered the decisions referred to by Cox J in Teremoana it is my view that the general principle that the harm that a crime causes the victim will usually be a relevant factor, applies to the present case, even if those exact consequences were unforeseen. Of course, when dealing with the culpability of the defendant, if a Court concludes that the defendant could not have foreseen the consequences, then this will be reflected in the sentence that is finally imposed. In my view, within the limitations discussed earlier, the consequences of a person's conduct is relevant when penalty is to be assessed. The weight to be given to those circumstances will vary according to the circumstances of the case. If a defendant did not foresee them then that will be an important factor.

I rule that evidence of the injuries sustained and the consequential effect those injuries have had upon Mr Lewis is admissible and relevant.