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[2000] NSWCCA 108
mixed. Time for leave to appeal was extended and leave granted. The appeals against sentence for both common assault counts were dismissed. The appeal against sentence for malicious wounding was allowed, and...
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The Court of Criminal Appeal concluded that the sentencing judge had not properly considered Powell's entrenched disadvantage and the principles discussed in Fernando. It therefore re-sentenced him for malicious wounding, taking account both of the serious knife attack and of his circumstances and progress in prison. The Court reduced the sentence for that offence but left the common assault sentences unchanged. Simpson J emphasised that Aboriginal heritage alone is not a mitigating factor, and that recognising disadvantage must not minimise harm to victims.
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2,205 words · generated 29/09/2026
In Regina v Christopher John Powell [2000] NSWCCA 108, the New South Wales Court of Criminal Appeal considered an application for an extension of time and leave to appeal against sentence. Powell had been sentenced for malicious wounding and two counts of common assault. The sentencing judge imposed a sentence of 4 years 6 months with a minimum term of 3 years for malicious wounding, and fixed terms of 6 months for each common assault, concurrent with each other and with the sentence for malicious wounding ([1]). The judge also took account of a breach of an apprehended violence order arising from the same date. No action was taken in respect of a breach of recognizance associated with another charge ([1]).
The Court granted the extension because the application was only a few days late and the explanation was satisfactory ([1]). The central appeal issue was whether the sentencing judge had adequately considered Powell's background and disadvantage, including the principles referred to in R v Fernando, 76 A Crim R 58.
The offending took place on 13 October 1998. Powell and Kelly had been in a relationship for about two years, which had at times involved violence. They and two friends were at a house in Tamworth and had been drinking. Powell became jealous of one of the friends, went outside with him, and later blamed another friend for influencing Kelly ([2]–[3]). Powell went to the kitchen, took two large knives and swung them at the two friends, who ran from the house. Kelly went to her bedroom and closed the door. Powell kicked it open, swung the knives at her face and stabbed her twice in the lower back, saying, “I am going to kill you”. He then told her to tell police that she had fallen on the knives ([4]). The Court described the offences as unprovoked, involving a serious breach of the peace and causing alarm and distress to three people as well as physical harm ([14]).
The judgment also set out Powell's personal circumstances. His record went back to 1981 and included dishonesty, traffic and assault offences. The sentencing judge considered his behaviour to have deteriorated from April 1998 ([6]–[7]). Powell had grown up in a large family and experienced a disadvantaged and unsettled upbringing, including tragic deaths in the family. He had a long-standing alcohol problem, related health problems and a disability pension ([8]). The judgment recorded a suicide attempt in July 1998 and a history of depression ([9]). Smart AJ observed that Powell's drinking began in early adolescence while living on an Aboriginal reserve, and described his alcoholism as closely connected to his lifestyle there and his family background ([10]).
The Court also had updated evidence of Powell's conduct in custody. Reports referred to above-average work and conduct, literacy, numeracy and word-processing study, art work, anger-management work, and a programme providing a pathway for Aboriginal students to enter university ([18]–[19]). Smart AJ considered the prospect of rehabilitation had changed since the original sentencing, while also noting that release would present a difficult test and that Powell would need substantial support and supervision ([19]–[20]).
Smart AJ found that the sentencing judge had noted submissions about Powell's troubled upbringing and alcoholism, but had not herself considered the principles in Fernando. Nor had she addressed his “entrenched pattern of disadvantage” and the effects of his upbringing ([16]–[17]). Smart AJ concluded that this was a case in which those principles should have been applied. The failure amounted to error, so the Court had to re-sentence Powell ([17]).
The judgment does not reproduce the full reasoning in Fernando. Its account is therefore limited to the way the Court in Powell described and used that authority. Smart AJ records the argument that Fernando recognised that an offender's background could be relevant to how an offence is understood, and identifies early exposure to alcohol and family disadvantage as important features raised in Powell's case ([15]). The judgment's operative conclusion is that the principles should have been applied to the material before the sentencing judge ([17]).
The Court did not treat the personal circumstances as eliminating the seriousness of the offending. Smart AJ expressly accepted the Crown's emphasis on the offences' objective gravity. The attack involved two large knives, was unprovoked, and caused harm and distress to several people. Smart AJ also stated that violence in domestic situations must be treated seriously ([14]–[15]). The resulting analysis was not that disadvantage displaced the seriousness of the conduct, but that the sentencing assessment had to address both.
The re-sentencing proceeded on additional material that had not been before the sentencing judge. The prison reports described constructive activity and good conduct. Smart AJ considered there was now “some real prospect” of rehabilitation, while noting the uncertainty created by Powell's history of alcohol dependence and the challenge of maintaining abstinence after release ([18]–[20]). The Court found “compelling special circumstances” and substituted a sentence with a minimum term of 2 years 6 months and an additional term of 2 years ([21]–[22]).
Simpson J agreed with the orders and added two important cautions. First, Fernando should not be read as authority that Aboriginal heritage itself is a mitigating circumstance. In Simpson J's explanation, it is the disadvantage associated with Aboriginality, rather than Aboriginality “per se”, that may warrant leniency ([23]). Second, the recognition of disadvantage should not have the unintended effect of apparently devaluing the impact of offences on victims. Simpson J noted that victims may themselves be subject to the same pattern of disadvantage, and described sentencing as a difficult balancing exercise ([24]).
This judgment describes the position before the appeal in case-specific terms. The sentencing judge had been given submissions about Powell's upbringing, alcoholism and related difficulties, but had not herself embarked on the considerations identified in Fernando ([16]–[17]). The Court did not say that merely mentioning an offender's background in sentencing submissions is sufficient. It found that the judge's remarks did not show consideration of Powell's entrenched pattern of disadvantage and the effects of his upbringing ([17]).
After the appeal, the immediate result was a re-sentence for malicious wounding. The Court's reasoning shows that the offender's background and the offence's gravity were both relevant to the sentencing assessment in this case. The Court did not set out a general test or a formula for balancing those considerations. It identified the particular evidence before it, including the knife attack, the victims' experience, Powell's long-standing alcohol problem and health, and his progress in custody ([14], [18]–[20]).
The judgment also clarifies the scope of the Fernando reference. Simpson J expressly rejected a reading of that case as making Aboriginal heritage itself a mitigating circumstance. The factor identified was disadvantage associated with Aboriginality ([23]). This is an important qualification to the way the argument for Powell was framed: the judgment's reasoning concerns disadvantage and its evidence, not an automatic sentencing consequence based on identity.
The decision does not purport to establish that every offender with alcohol dependence, a difficult upbringing or Aboriginal heritage should receive a particular reduction. Nor does it set out a prescribed method or specific evidentiary threshold. Its stated conclusion is narrower: on the material in this case, the sentencing judge should have applied the Fernando principles, and the Court re-sentenced after considering the additional evidence and all the circumstances identified in its reasons ([17]–[22]).
At [17], Smart AJ stated: “This was a case where those principles should have been applied.” In plain English, the Court considered Powell's background and disadvantage sufficiently relevant that the sentencing judge needed to address the principles referred to in Fernando. The next sentence records that the failure established error and required the Court to re-sentence.
At [14], Smart AJ stressed that the offences were serious and that “the main factor is the objective gravity of the offences.” The description that follows includes the unprovoked nature of the conduct, the use of two large knives, and the alarm, distress and physical harm caused to three people. In plain English, considering Powell's circumstances did not mean treating the knife attack as minor.
At [19], Smart AJ said that the position differed from the one before the sentencing judge because there was now “some real prospect” of rehabilitation. This conclusion was based on updated prison evidence, including reports of study, work, good conduct and participation in relevant programmes. The same paragraph qualifies that assessment by pointing to the difficulty of release and the risk associated with resuming alcohol use.
At [23], Simpson J said that the relevant consideration was “the disadvantage associated too often with aboriginality” and not “the fact of aboriginality, per se.” In plain English, the judgment does not support treating Aboriginal identity alone as a reason for leniency. It focuses on disadvantage connected with a person's circumstances and background.
At [24], Simpson J warned against “devaluing the effect of offences on victims”. The passage recognises that victims may also experience disadvantage. In plain English, a sentencing assessment must not overlook the harm to victims when the offender's background is considered.
The judgment is most directly relevant to a sentencing appeal where the offender's disadvantage and background were raised but the sentencing judge's reasons do not show that the relevant principles were actually considered. In Powell, the judge referred to submissions about his troubled upbringing and alcoholism, but did not address his entrenched disadvantage or apply the principles in Fernando ([16]–[17]). The decision therefore highlights a possible issue where the sentencing record contains substantial material about disadvantage but the sentencing reasons do not engage with it.
The decision also provides a specific qualification for cases involving Aboriginal offenders. It identifies associated disadvantage as relevant, while rejecting Aboriginal heritage by itself as a mitigating circumstance ([23]). The judgment's own facts included early exposure to alcohol, an unsettled and disadvantaged upbringing, health issues and depression ([8]–[10], [24]). It does not establish that these circumstances will carry the same weight in another case.
The case also concerns serious domestic offending. The Court described the offending as unprovoked and involving knives, and expressly said that violence in domestic situations must be treated with real seriousness ([14]–[15]). A fact pattern involving substantial offender disadvantage does not, under this judgment, remove the need to consider the nature of the conduct and its effects on victims.
Finally, Powell's appeal involved updated post-sentence information about rehabilitation in custody. The Court considered the prison work report, education and course participation, and the potential for rehabilitation alongside the difficulty of managing alcohol dependence after release ([18]–[20]). The reasons show that later evidence can form part of the Court's re-sentencing assessment in an appeal, but they do not specify a general rule about what weight such evidence must receive.
The judgment supplied here does not refer to any later cases or describe subsequent judicial treatment of Powell. It is therefore not possible, on this source alone, to state whether later courts followed, distinguished, applied or limited the decision.
What can be identified from this judgment is its treatment of Fernando. Smart AJ applied the principles referred to in that authority to the question whether the sentencing judge had adequately considered Powell's circumstances ([15]–[17]). Simpson J then explained a limit on the argument: Fernando was not authority for treating Aboriginal heritage itself as a mitigating circumstance ([23]). The judgment also drew attention to the need to avoid devaluing the harm experienced by victims when disadvantage is recognised ([24]).
Those are statements made by the Court in Powell. Any account of later treatment would need to be checked against later judgments, which are not included in the supplied text.
The judgment does not reproduce the full principles in Fernando, so it does not provide a complete account of that case's reasoning or boundaries. It records how the parties argued about the authority and how the Court applied it to Powell's circumstances, but a fuller statement of the source principles would require the text of Fernando itself ([15]–[17], [23]).
The reasons also do not prescribe how a sentencing judge must document consideration of disadvantage. They identify the omission in this case and explain why the sentencing judge's remarks were insufficient, but they do not define a checklist or minimum form of reasons for other cases ([17]).
Nor do they specify how much weight should be given to different forms of disadvantage, alcohol dependence, health concerns, prior offending or rehabilitation evidence. The Court balanced the particular features of Powell's case, including the serious offending and the updated prison material, without articulating a numerical method or general sentencing range ([14], [18]–[22]).
The judgment recognises the risk that an offender's circumstances may be considered in a way that appears to minimise victims' experiences, including where victims themselves experience disadvantage. It does not set out a separate test for resolving that tension; Simpson J describes it as a difficult balancing exercise ([24]).
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CITATION : R. v. POWELL [2000] NSWCCA 108 FILE NUMBER(S) : CCA 060210/99 HEARING DATE(S) : 13 March, 2000 JUDGMENT DATE : 13 March 2000
PARTIES : REGINA CHRISTOPHER JOHN POWELL JUDGMENT OF : Simpson J at 23; Smart AJ at 1
LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0502 LOWER COURT JUDICIAL ENGLISH DCJ OFFICER :
COUNSEL : T.J. GOLDING (Applicant) C.K. MAXWELL (Crown) SOLICITORS : T.A. MURPHY (Applicant) S.E. O'CONNOR (Crown) CATCHWORDS : Crimnal Law - Sentence - Malicious Wounding Pattern of Entrenched Disadvantage CASES CITED: R. v. Fernando 76 A Crim R. 58 DECISION : SENTENCE REDUCED. SEE PARA. 22.
IN THE COURT OF CRIMINAL APPEAL 060210/99
1 SMART AJ: Christopher John Powell seeks an extension of time and leave to appeal against the severity of sentences of 4 years 6 months with a minimum term of 3 years, special circumstances being found, and concurrent fixed terms of 6 months on each of the two counts of common assault being also concurrent with the sentence for malicious wounding. The Judge took into account the further offence of breach of apprehended violence order on 13 October 1998 when the applicant assaulted the victim of the malicious wounding. The Judge took no action in respect of breach of recognizance on a charge of assault occasioning actual bodily harm. An extension of time should be granted as the application was only a few days late and a satisfactory explanation has been given. 2 The applicant and the victim, Kelly, had been in a relationship for about two years. At times it had been characterised by violence. During the afternoon of 13 October 1998 they and two friends, Lucella and Jim, were at 3 Glen Street Tamworth. They had been and were drinking alcohol. By about 9 pm the applicant had become jealous of Jim whom he believed was making advances to Kelly. By that time the applicant had had quite an amount to drink. The applicant and Jim went outside the house. Jim tried to calm the applicant. 3 A short time after returning to the house the applicant blamed Lucella for putting things in Kelly's head, walked to the kitchen and obtained two large kitchen knives, one in each hand. He approached Lucella and Jim and swung the knives at each of them. They ran from the premises. 4 Kelly ran to her bedroom, closed the door and lent against the door. The applicant kicked the door open and swung the knives at the face of Kelly. He stabbed her in the lower part of the back twice saying, "I am going to kill you". In an attempt to calm him down she told him that she loved him and wished to marry him. He told her to tell the police that she had fallen on the knives. The male friend returned to the premises and the applicant again threatened him and chased him with the knives. Kelly was admitted to Tamworth Base Hospital for treatment of the stab wounds. 5 During his recorded interview the applicant stated that during an argument he went to the kitchen area and obtained two knives. He further stated that he threatened the two friends to scare them. He went to the bedroom where Kelly was. She fell onto the knife on two occasions. That version was incorrect. 6 The applicant's record stretches back to 1981. He has prior convictions for dishonesty offences, traffic offences, assault and assault occasioning actual bodily harm. He has been fined and placed on recognizance. He has spent some short periods in gaol. He was fined for assault in May 1997. On 12 June 1998 he was sentenced to 6 months periodic detention for contravening an Apprehended Domestic Violence Order and placed on 3 years' recognizance for assault occasioning actual bodily harm, with conditions designed to address his alcohol problem. 7 The sentencing judge approached the applicant's record as disclosing minor offences until 1997, but held that there was a deterioration in his behaviour from April 1998 onwards. The materials justified such an approach. The judge stated the applicant would receive consideration for his plea of guilty, albeit that his conviction was highly likely. The judge had heard the applicant express his remorse but said that she was not confident that he had a real understanding of the terror and hurt he caused to the victims. 8 The applicant, who was born on 8 June 1966, comes from a large family, being the sixth of eleven children. He had a disadvantaged and unsettled upbringing and there have been tragic deaths in the family. Wherever possible he engaged in heavy outdoor work, including fencing, bush work and some mining. His entrenched alcohol problem has also given rise to health problems and led to him being given a disability pension.
9 In July 1998 the applicant attempted suicide and spent some days in a mental health hospital unit. He was depressed and, indeed, seems to have had a history of depression. The district manager of the Probation and Parole Service has written: "In the past he has not managed to address the alcohol situation adequately and never managed to complete any rehabilitation course/program although always attending with the right intention". 10 The drink problem started when the applicant, like so many other young aborigines living on the aboriginal reserve at Goodooga, began drinking while still in his early teens. He lived in Goodooga and Lightning Ridge until he was in his late 20s. This appears to be a case where the applicant's alcoholism is very much a product of his lifestyle on the aboriginal reserve and the unsatisfactory family background. 11 The Judge expressed these views: "He has had a gross disregard for his obligations and undertakings to abide by apprehended violence orders and has shown an inability to attend and comply with alcohol rehabilitation. He has failed to comply with periodic detention. I have no doubt that future breaches are likely with respect to alcohol unless and until he fully complies with attendance and supervision at an appropriate institution. His crimes are separate and distinct and deserving of individual penalties, indeed cumulative penalties. I will not however enter into an exercise of accumulation and I will fix an overall head sentence reflecting the total criminality together with concurrent fixed terms. I have taken into account the breach of recognizance and the matter contained in the Form 1. I have been urged to find special circumstances and I will do so as it is in the interests of the prisoner and the community that he be given every opportunity to rehabilitate himself. If he is genuine in this regard eighteen months is adequate." 12 The materials have left me with the strong opinion that the applicant's problems are more deep seated than the judge's remarks indicate and that it will take much time and effort if even a moderately satisfactory result is ultimately to be achieved. It is most unlikely to be achieved in 18 months, given the entrenched nature and long-standing of the alcohol problem and the applicant's health. 13 Counsel for the applicant relied on some statistics produced from the Judicial Commission and pointed out that the head sentence of four and a half years tended to be towards the top of the range. There was only a relatively small number of matters in which greater sentences were passed. However, the applicant can take no comfort from this because on any view this was a case which attracted a head sentence of four and a half years. 14 The Crown has rightly stressed that the offences were very serious and that the main factor is the objective gravity of the offences. They were unprovoked, they involved a serious breach of the peace, with the use of two large kitchen knives. They caused much alarm and distress to three separate victims as well as physical harm. 15 Violent acts in domestic situations must be treated with real seriousness. The principal attack of counsel for the applicant was that the judge had failed to consider the principles referred to in Fernando, 76 A Crim R 58. It was the applicant's case that Fernando recognised that there could be cases where the background of an accused was of such a nature that the offences themselves should be seen in that context. Of particular importance in this case is the applicant growing up in an area where alcoholic consumption from an early age was the norm. The family background of the applicant was distressing and disadvantaged. 16 The Crown submitted that even though the judge did not refer to Fernando and the principles which it states, she nevertheless had regard to some or most of the matters to which Fernando required attention to be paid. She made a reference to the submissions of the applicant's counsel regarding his troubled upbringing and alcoholism and that alcoholism has plagued his life. She added that she was asked to take into consideration the fact that the prisoner formed a relationship late in life but due to his turbulent upbringing the relationship was not stable and resulted in an increase in his long-standing drinking problem and escalation of his depressive illness. 17 The judge, while noting these submissions on behalf of counsel, did not herself embark upon any of the considerations referred to in Fernando. At no stage in her remarks does the judge mention or deal with the applicant's entrenched pattern of disadvantage and the effects of his unsatisfactory upbringing. No reference is made to Fernando or the later cases which followed it, nor does the judge purport to apply those principles. This was a case where those principles should have been applied. The valiant effort made by the Crown to suggest, in effect, that the judge applied the Fernando principles and, alternatively, that they had no weight in this case, cannot succeed. The applicant has established error and this Court must re sentence.
18 The Crown's position upon re-sentencing was that the actual sentence was correct and anything less was not sufficient to reflect the objective gravity of the offences. There is further material to be taken into account on re-sentencing. The work report of Glen Innes Gaol states,
"The applicant's work and conduct have been well above average. Since being in prison he has undertaken courses to improve his literacy and numeracy. He has also done word processing courses and studied art. He has developed his artistic skill as a painter to the stage where he is able to sell some of his paintings. He is keen to continue the course dealing with anger management and the work to control his alcohol dependancy". 19 He had previously been at Bathurst Gaol where he was regarded as a very good student who attended many courses and applied himself to them. Since being back at Glen Innes he has started attending a University of New England Tracks Programme which provides a pathway for aboriginal students to enter university. The position now differs from that before the judge. Before her the prospect of rehabilitation appeared to be relatively slight. Now there is some real prospect. One reason for the change may be that the applicant has not had access to alcohol in gaol. It will be both a difficult and testing time when he is released. Will he be able to refrain from consuming alcohol to excess? 20 The applicant will need much support and supervision on his release from gaol. He has a long way to go and after such an extended period on alcohol he will need extensive supervision. His parole conditions will have to deal with his alcoholic problems. 21 It will be apparent from what I have just said that I am of the opinion that there are compelling special circumstances. The offence of Breach of Apprehended Domestic Violence Order has been taken into account. 22 I propose the following orders: (i) Extend time for leave to appeal. Leave to appeal granted. (ii) Appeals against sentence on each of the counts of common assault dismissed. (iii) Appeal against sentence on count of malicious wounding allowed. (iv) In lieu of the sentence imposed the applicant is sentenced to a minimum term of imprisonment of 2 years 6 months starting on 13 October 1998 and ending on 12 April 2001 and an additional term of 2 years starting 13 April 2001. 23 SIMPSON J: I agree with the orders proposed and would simply add this; on behalf of the applicant in this Court considerable reliance was placed on the remarks on sentence reported in Fernando, 76 A Crim R 58. It is, in my opinion, a mistake to rely on Fernando as authority for a proposition that aboriginal heritage of itself is a mitigating circumstances. What I understood Wood J to have been saying in Fernando was that the well known social and economic problems that frequently attend aboriginal communities warrant a degree of leniency but it is the disadvantage associated too often with aboriginality that warrants that degree of leniency and not the fact of aboriginality, per se. 24 Care must also be taken to ensure that recognition of those problems and the principles stated in Fernando do not have the unintended consequence of apparently devaluing the effect of offences on victims, including circumstances where the victims are already themselves subject to the same pattern of disadvantage. That is the tight rope that the sentencing Judge was walking in this case. In these cases sentencing Judges have to perform an extremely difficult balancing exercise. In her remarks on sentence Judge English did not refer to the extensive and very compelling medical material, including evidence of the attempted suicide that was before her. The attention paid by her to the applicant's "troubled up bringing" suggests that insufficient appreciation was given to the extent of the disadvantage and dislocation evidenced by the whole of the material in this case. 25 Accordingly, I agree with the orders proposed by Smart AJ and the orders of the Court will be as proposed by him.
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.
REGINA
CHRISTOPHER JOHN POWELL
Time for leave to appeal was extended and leave granted. The appeals against sentence for both common assault counts were dismissed. The appeal against sentence for malicious wounding was allowed, and the original sentence was replaced with a minimum term of 2 years 6 months commencing on 13 October 1998 and an additional term of 2 years commencing on 13 April 2001 ([22]).