New South Wales Court of Criminal Appeal CITATION : R v WESTERMAN [2004] NSWCCA 161 HEARING DATE(S) : 17 May 2004 JUDGMENT DATE : 17 May 2004 JUDGMENT OF : Spigelman CJ at 23; Hulme J at 1; Adams J at 24 DECISION : See paragraph 22 PARTIES : Regina Justin Westerman FILE NUMBER(S) : CCA 60494/03 COUNSEL : Crown: R Cogswell SC Appellant: PM Winch SOLICITORS : Crown: S Kavanagh Appellant: S O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 03/61/0004 FILE NUMBER(S) : LOWER COURT Gibson DCJ JUDICIAL OFFICER : - 5 - IN THE COURT OF CRIMINAL APPEAL 60494/03 SPIGELMAN CJ HULME J ADAMS J Monday, 17 May 2004 R v JUSTIN DAVID WESTERMAN Judgment 1 HULME J: The Appellant pleaded guilty to a charge of maliciously inflicting grievous bodily harm and, on 9 May 2003 was sentenced by Judge Gibson to imprisonment for 7 years such term to include a non-parole period of 5 years. Both periods were directed to commence on 30 January 2003. 2 The offence is one created by s 35(b) of the Crimes Act which provides for a maximum penalty of seven years' imprisonment. 3 The victim of the offence was a five year old boy, the son of a woman with whom the appellant was, and had been for a period of months, living. 4 Evidence before the sentencing judge made it apparent that the child had been beaten very severely and extensively. Judge Gibson described it as "unmercifully". The injuries inflicted included multiple bruises to the victim's face, both ears, neck, arms, shoulders, back and buttocks, many of the bruises being also associated with what was described as "significant soft tissue swelling". There was an eight centimetre tender boggy swelling over the centre of the forehead extending down the nasal bridge and petechial haemorrhages inside the right side of the mouth. 5 There was extensive bruising over the entire left cheek. There were also multiple abrasions above and below both eyes and extending onto the cheeks and onto one side of the victim's nose. 6 The precise circumstances in which the injuries came to be inflicted were not established but it would seem from observation of the victim by his teacher and other strangers to the household, that the victim was relatively uninjured on the afternoon of 14 March and exhibited the injuries the next morning. Although originally suggesting the injuries may have occurred due to falls in the shower on the morning of 15 March, his mother ultimately denied any knowledge of any incident during the night of 14/15 March which could have accounted for them. The appellant provided no explanation. 7 The sentencing judge was asked to take into account a further offence of an assault occasioning actual bodily harm occurring on 14 March 2001. The circumstances of this incident were that the appellant kicked the child once in the lower back as the child walked with his mother and the offender down the street. Some bruising to the victim's lower back was caused by this assault. 8 The appellant had originally been charged with more serious offences but after expert evidence became available contradicting the Crown case in respect of those, the charge for which the appellant was sentenced was substituted and Judge Gibson found that the appellant had pleaded to the charge at the earliest possibility. 9 Turning to the appellant's subjective circumstances, he was born in September 1973. Prior to the commission of the offence with which this Court is concerned, he was a drug addict for a number of years and had served many, albeit fairly short periods of imprisonment for, mainly, driving offences and offences of dishonesty. His antecedents do not include an offence of violence. 10 The appellant did not give evidence before Judge Gibson and although a report from Messrs Duffy Barry Robilliard was tendered on his behalf, it is apparent his Honour was not disposed to accept anything in that report which was dependent on the appellant's veracity. A possible exception to that may be expressions of remorse, although his Honour observed that no such expressions had been given to the court. His Honour also referred to an indication that the appellant wanted to rehabilitate himself but pointed out that the appellant had had plenty of opportunities in that regard in the past and had not taken advantage of them. His Honour also observed that the offence which had led to the charge against the appellant was not an isolated incident. 11 His Honour recognised that the circumstances of the appellant's plea would, in the ordinary course, entitle him to a twenty-five per cent discount for its utilitarian value but, taking the view that he was under a duty to impose a sentence commensurate with the crime, declined to impose a sentence less than I have indicated. His Honour did not in terms find special circumstances. 12 In the transcript of proceedings before his Honour on 9 May 2003, it was recorded that the appellant had been in custody since sometime in 2002, although only since 30 January 2003 in respect of the offence for which he stood for sentence. My consideration of the summary of the appellant's record presented to this Court would suggest that this earlier imprisonment had consisted of a period of two months from 1 June 2002 in respect of a number of offences for which the appellant was sentenced at the Frankston Magistrates Court and then a period of six months' imprisonment for a number of offences for which the appellant was sentenced at Broken Hill Local Court commencing on 30 July 2002. His Honour made no reference to considerations of totality. 13 In summary, the argument for the appellant was that while in R v Thomson and Houlton [2000] 49 NSWLR 383 at 418 it was pointed out that some cases are so serious that no discount for a plea was required, the instant case did not fit within that description because the injuries were only of the nature which I have described and did not include broken bones, internal or brain injury and none of the physical injuries were of a permanent nature. 14 It was submitted that the objective seriousness of the case was not such as to put it into "a worst case" category and reference was made to a number of prior decisions in this Court where substantially lesser sentences were imposed or upheld. Cases referred to were R v O'Kane (unreported, CCA 9 March 1995); R v Clarke (unreported, CCA 27 March 1995); R v Grimmett (unreported, CCA 1 April 1996); R v Rainbow (unreported, CCA 20 December 1996); R v Remilton (unreported, CCA 6 December 2001). 15 The Crown did not suggest that the nature of the injuries brought the case within "a worst case" category and plainly they do not. However, the Crown submitted that the heinousness necessary to bring a case within the worst category need not be found in any particular aspect of an offender's criminality and submitted that, clearly, the applicant's conduct was sufficient to justify the case being treated as in "a worst case" category. 16 When regard is had to the number and extent of the injuries which were suffered and the inferences to be drawn from those injuries and the extended nature of the beating which the appellant subjected his victim to, it is, I think, clear from remarks which his Honour made that he did place great weight on the offender's conduct as distinct from merely the magnitude of the injuries. 17 I would accept in principle the Crown's submission that one can find "a worst case" without being able to categorise the injuries in an offence such as this as "worst type" injuries. However, the injuries were so far removed from "worst case" injuries falling within the description of grievous bodily harm that that certainly argues against the offence being treated as in that category. Although there was evidence that this was not an isolated offence there is nothing to suggest it was premeditated, although clearly there must have been plenty of opportunity for the offender to desist long before he did. 18 One should not forget the fact that his Honour was also taking into account the assault on the previous day but again the injuries suffered in consequence of that were of the same nature as those which were the result of the principal offence. 19 For my part, I think the challenge to the sentence has been made good. I would not regard this offence as one in "a worst case" category. Thus it falls to this Court to re-sentence. 20 In the course of that exercise and having decided that the matter does not justify being categorised as a worst case, I think the appellant is entitled to a credit or discount for his plea which should be towards the top of the R v Thomson and Houlton range. But for that plea I should have thought the sentence of five years' imprisonment was appropriate. After taking account of the plea I would reduce that to a head sentence of four years with a non-parole period in accordance with the usual proportion of three years. 21 I have, indeed, reflected on whether or not three years actually in prison is sufficient for the appellant's conduct but at the end of the day do not feel sufficiently confident to impose a greater sentence. 22 Accordingly, I would propose that this Court grant leave to appeal, allow the appeal, quash the sentence imposed by Judge Gibson and impose in lieu a sentence of four years including a non-parole period of three years, both such periods to commence on 30 January 2003. 23 SPIGELMAN CJ: I agree. 24 ADAMS J: I also agree. ********** Last Modified: 05/20/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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