Tweeddale v Regina

Judgment 1BEAZLEY JA: On 12 October 2010, the appellant pleaded guilty to one count of reckless wounding contrary to the Crimes Act 1900, s 35(4) and one count of offer to confer a benefit with the intent to influence a witness in a judicial proceeding contrary to the Crimes Act, s 321(1)(a) (the s 321(1)(a) offence). The offence of reckless wounding carried a maximum penalty of 7 years imprisonment with a standard non-parole period of 3 years. The s 321(1)(a) offence carried a maximum penalty of imprisonment for 10 years. 2On 16 November 2010, the appellant was sentenced by Hosking DCJ to the following terms of imprisonment. In respect of the offence of reckless wounding, the appellant was sentenced to a non-parole period of 3 years to commence on 12 January 2012 and expiring on 11 January 2015. The appellant was sentenced to an additional term of 18 months, expiring on 11 July 2016. In respect of the s 321(1)(a) offence, the appellant was sentenced to a fixed term of imprisonment for 12 months, commencing on 12 January 2011 and expiring on 11 January 2012. 3The appellant has appealed against his conviction in respect of the s 321(1)(a) offence and seeks leave to appeal against the sentence imposed in respect of the reckless wounding offence. 4The Crown concedes that the conviction on the s 321(1)(a) offence cannot be maintained. The consequences which flow from that are dealt with below.

Background facts 5Subject to one factual matter which is at the heart of the application for leave to appeal against sentence, the facts as found by the trial judge in his remarks on sentence are not in dispute. Accordingly, the following review of those facts is derived from his Honour's remarks. 6The reckless wounding offence occurred at about midnight on 25 April 2010. The appellant, Jay Betcke (the victim of the wounding) and Mr Betcke's girlfriend Emma Thomas, were at a party. As Mr Betcke, Ms Thomas and others were leaving, Mr Betcke heard the appellant "mouthing off" about Ms Thomas. Mr Betcke did not know the appellant. However, Ms Thomas had been friends with him for about two years. 7Mr Betcke turned around and told the appellant to "shut up", saying words to the effect, "[t]hat's my girlfriend you're talking about and you won't be doing nothing while I'm around". The appellant was heard to reply, "... [y]ou want to have a go". Mr Betcke turned around and saw the appellant running towards him from about 20 metres away. When the appellant was a "couple of metres" from him, Mr Betcke saw him "bend down and smash a glass bottle on the ground" and then "[have] a go" at Ms Thomas' brother. Mr Betcke grabbed Ms Thomas' brother, pulled him out of the way and stood between him and the appellant. The appellant then "came at Mr Betcke and held the bottle to his throat". Mr Betcke could feel the bottle cutting into his throat. He told the offender to "put the bottle away or I'm going to hit you". The appellant continued to push the bottle into Mr Betcke's throat, yelling at him that he was going to kill him. 8Mr Betcke was holding a bottle of beer and hit the appellant on the side of the head with it. The appellant "went crazy" at this point and started to punch Mr Betcke. Mr Betcke pulled the appellant close to him to avoid being struck further and then "threw" him down and "kicked him in the head". The two men rolled around on the ground until the police arrived soon afterwards and separated them. 9In his record of interview with the police, the appellant said that he could only remember "bits and pieces" of what had happened that night, principally due to his level of intoxication. He had also taken some Ecstasy tablets that night. 10Mr Betcke was given first aid at the scene and was then taken to hospital by ambulance. According to the statement of facts tendered on the sentence hearing, Mr Betcke was treated at hospital for the following injuries: 2 cm laceration to the vertex of the scalp requiring three sutures; 3 cm long deep laceration to the back of the vertex of the scalp requiring two deep sutures; Partial amputation of the rim of the left ear, repaired with four nylon sutures; Laceration to lower left ear, repaired with five sutures; Superficial laceration over left carotid artery; Arterial bleed behind left ear; Laceration on back of right forearm, deep, down to the muscle requiring three deep sutures and five skin sutures. 11A photograph taken of Mr Betcke in hospital showed him with a significant amount of blood on his face, including down the bridge of his nose, across his left cheek and along the jawline on the left side of his face and chin. According to the statement of facts, the treating doctor did not expect any long term deficit from these injuries, except scars to Mr Betcke's head, ear and arm. 12In dealing with the reckless wounding offence, his Honour stated: "Returning then to the sentences with which I am dealing, the s 35 offence is self-evidently, one of extreme violence as I said, involving the offender using a broken bottle as a weapon. It is clear to me that the offender struck Mr Betcke a number of times with the broken bottle. Apart from what witnesses say, when one looks at the photographs of Mr Betcke's head that is plainly evident with the number of injuries he sustained consistent only with having been struck a number of separate blows with the broken bottle. The photographs also show - or one of them shows Mr Betcke in the emergency ward at the Cobar Hospital which is a horrifying photograph showing Mr Betcke with what appear to be significant cuts to his face, his face largely covered in blood and the upper part of his torso also covered in blood as is the pillow or most of it or a lot of it and some other dressings below his head." 13His Honour's finding that the photograph of Mr Betcke in the hospital showed "what appeared to be significant cuts to his face" is challenged on the sentence appeal.