R. v. POWELL [2000] NSWCCA 108

New South Wales Court of Criminal Appeal

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

SIMPSON J SMART AJ

Monday 13 March 2000

REGINA v CHRISTOPHER JOHN POWELL

JUDGMENT

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.