Mackey v Regina [2006] NSWCCA 254

New South Wales Court of Criminal Appeal

CITATION: Mackey v Regina [2006] NSWCCA 254

HEARING DATE(S): 2 August 2006

JUDGMENT DATE: 25 August 2006

JUDGMENT OF: Beazley JA at 1; Hulme J at 2; Hislop J at 3

DECISION: 1. Application for leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS: Criminal law - Sentence - Malicious wounding with intent to do grievous bodily harm - Standard non parole period - Delay - Extra curial punishment - Sentence not manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 - s 33 Crimes (Sentencing Procedure) Act 1999 - s 54A(2), Pt 4 Div 1A

R v Daetz (2003) 139 A Crim R 398 CASES CITED: R v Todd (1982) 2 NSWLR 517 R v Way (2004) 60 NSWLR 168

PARTIES: Applicant - Ryan Joseph Mackey Respondent - Regina

FILE NUMBER(S): CCA 2006/837

COUNSEL: Applicant - Mr C Craigie SC Respondent - Ms J Dwyer

SOLICITORS: Applicant - Legal Aid Commission of New South Wales Respondent - Director of Public Prosecutions (New South Wales)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1229

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 15 September 2005

- 1 - IN THE COURT OF CRIMINAL APPEAL 2006/837

BEAZLEY JA HULME J HISLOP J

25 August 2006 Ryan Joseph MACKEY v REGINA Judgment

1 BEAZLEY JA: I agree with Hislop J. 2 HULME J: I agree with Hislop J. HISLOP J: 3 On 16 December 2004 the applicant was found guilty by a jury of a charge that, on 11 July 2004 at Pyrmont NSW, he maliciously wounded Christopher Julian with intent to do grievous bodily harm contrary to the Crimes Act 1900 s 33. The maximum penalty for such an offence is 25 years imprisonment. 4 On 15 September 2005 Marien DCJ sentenced the applicant for that offence to a non parole period of 8 years imprisonment commencing on 2 September 2004 and expiring on 1 September 2012. The total sentence imposed was 10 years and 8 months imprisonment commencing on 2 September 2004 and expiring on 1 May 2015. 5 The objective facts were found by his Honour as follows: The victim, Christopher Julian, was at the Pyrmont Bridge Hotel, Pyrmont, with friends Lionel Nathan and Angie Te Tomo at about 5am on Sunday 11 July 2004. At about that time Mr Julian walked through the main bar area towards the men's toilets situated at the rear of the hotel. The bar was crowded and whilst walking through the bar Mr Julian walked past the offender who, at the time, was holding a schooner glass of beer in each hand, having just purchased them at the bar. As Mr Julian walked past he accidentally bumped the offender, which resulted in the offender spilling some beer. Some verbal abuse then passed between the offender and Mr Julian. Mr Julian attempted to keep walking towards the toilets, however, the offender continued to abuse him. The offender then became aggressive towards Mr Julian and stood very close to him. Mr Julian then put his right hand on the offender's chest and pushed him slightly in an attempt to create some distance between himself and the offender. At that moment the offender swung his right hand at the left side of the victim's face and the offender was still holding a schooner glass at the time. The glass and the offender's right hand impacted with the left cheek and left eye area of Mr Julian. This caused severe lacerations to his face which bled profusely … In an immediate reaction to being hit in the face Mr Julian punched the offender once to the face. At that moment security personnel intervened and the offender was escorted from the premises. 6 As a result of the assault Mr Julian required approximately 40 stitches to his left cheek, left eyebrow and left eyelid. He has been left with residual scarring described as "substantial and prominent". His Honour found that at the time the offender struck Mr Julian with the glass he intended to inflict serious bodily injury to Mr Julian's face. 7 The applicant has sought leave to appeal against sentence on the following grounds: 1. His Honour erred in law in determining whether the standard non-parole period was to apply, in particular as to the process of classifying the offence as in the mid-range of seriousness. 2. His Honour erred in failing to consider the impact of delay in bringing the sentence proceedings to finality. 3. His Honour erred in not having proper regard to the issue of extra curial punishment, relating to an assault upon the applicant immediately after the offence. 4. The sentence is manifestly excessive.