New South Wales Court of Criminal Appeal CITATION: Pritchard v Regina [2007] NSWCCA 305 HEARING DATE(S): 24 October 2007 JUDGMENT DATE: 24 October 2007 JUDGMENT OF: Handley AJA at 1; Howie J at 2; Price J at 3 EX TEMPORE JUDGMENT DATE: 24 October 2007 DECISION: (i) Leave to appeal be granted; (ii) Appeal allowed; (iii) Sentence quashed; (iv) The matter remitted to the sentencing Judge to hear and determine the sentence proceedings according to law. CATCHWORDS: Criminal law - sentencing - finding of facts on sentence after jury verdict. LEGISLATION CITED: Crimes Act 1900 s 33, s 35, Criminal Appeal Act 1912 s 12(2) CASES CITED: GAS v The Queen (2004) 217 CLR 198 R v Isaacs (1997) 41 NSWLR 374 PARTIES: Brett Ronald Pritchard Regina FILE NUMBER(S): CCA 2007/3277 COUNSEL: Mr G Wendler - Applicant Mr M Barr - Respondent SOLICITORS: Van Houten Law - Applicant S Kavanagh - Solicitor for Public Prosecutions (respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/21/0226 LOWER COURT JUDICIAL OFFICER: Hughes DCJ LOWER COURT DATE OF DECISION: 2 February 2007 LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Brett Ronald Pritchard IN THE COURT OF CRIMINAL APPEAL 2007/3277 Handley AJA Howie J Price J 24 October 2007 Brett Ronald PRITCHARD v Regina Judgment 1 HANDLEY AJA: I agree with Price J. 2 HOWIE J: I agree. 3 PRICE J: The applicant Brett Ronald Pritchard seeks leave to appeal against the severity of the sentence imposed upon him in the District Court at Penrith on 2 February 2007. 4 The applicant had been indicted before a jury on 1 November 2006 on one count of wound with intent to commit murder under s 27 of the Crimes Act 1900 and an alternative count of malicious wounding with intent to do grievous bodily harm under s 33 of the Crimes Act. On 10 November 2006, the applicant was found "not guilty" of both charges by the jury but guilty of the statutory alternative offence of malicious wounding under s 35 of the Crimes Act. 5 The sentencing Judge sentenced the applicant on 2 February 2007 to a term of imprisonment made up of a non-parole period of 3 years with a balance of term of 2 years and 3 months. As the sentence was to commence on 25 December 2005, the applicant is eligible for release to parole on 24 December 2008. 6 The application for leave to appeal identifies two grounds namely: 1. The Sentencing Court erred by failing to find or adequately take into account for the purpose of assessing the applicant's objective level of criminal responsibility that the applicant acted in excessive self-defence when he stabbed the victim; 2. That the sentence imposed was, in all circumstances, manifestly excessive. 7 It is for present purposes necessary only to refer to the first ground of appeal. 8 The issue of self-defence was raised by the applicant at the trial. 9 During the trial, the applicant gave evidence that he was attacked by Mr Kane (Kane) who punched him in the head thee times and told him he was just getting started. The applicant said he found a kitchen knife which he held up so that Kane could see it. Kane saw the knife but seemed to get more angry and came straight towards him. A struggle then ensued. He did not actually remember stabbing Kane but had to defend himself or otherwise he was going to cop a hiding. He said he genuinely feared for his life. 10 Kane was stabbed three times, one stab wound severing the mammary gland resulting in the loss of a considerable quantity of blood. 11 Various accounts of what had occurred at the time of the stabbing were given by witnesses called by the Crown during the trial. Lisa Clifford in her evidence described the applicant screaming and throwing a wine cask into Kane's face, then jumping on him, "having" Kane by the head until somebody screamed out he had a knife. Bianca Lee Rose recounted that the applicant threw a wine cask hitting Kane in the face, that he charged at Kane and then grabbed him by the face. She said she tried to get them apart when it was realised that the applicant had a knife. Michael Turner said that the applicant was holding Kane down on the counter with his left hand whilst the knife was in his right hand. The applicant had thrown a cask of wine and had ended up together with Kane being pinned down on the bench. Kane recounted the applicant grabbed him from behind. He said he turned around and pushed the applicant off. He asked the applicant why he was grabbing him when he next remembered looking down and feeling "warmth moist" coming from his chest. 12 During the proceedings on sentence, it was accepted that the Crown must have eliminated self-defence as an issue at trial by proving beyond reasonable doubt that the stabbing was not done by him in self-defence. Counsel for the applicant submitted, however, that it was not inconsistent with the verdicts that the jury accepted the applicant acted in self-defence but that in all the circumstances his self-defence was excessive. 13 This submission arose as the Crown could eliminate self-defence as an issue by proving beyond reasonable doubt either: 1. That the applicant did not believe at the time of the stabbing that it was necessary to do what he did in order to defend himself; or 2. If it is reasonably possible that he did have such a belief, that nevertheless the stabbing was not a reasonable response in the circumstances as he perceived them. 14 During his Honour's ex tempore remarks on sentence, the sentencing Judge said (ROS at 6): "It has been suggested to me by the Crown, and indeed, in my – and that a jury could not have found that Mr Pritchard acted in self-defence. Mr Wendler has said that the evidence that the jury must have accepted was that Mr Cain (sic) was the initiator of any physical contretemps because he punched – he said the jury must have accepted that he was punched in the face by Mr Cain (sic) – that is to say, the offender was – whereas, the crown suggest that the jury must have rejected self-defence because it was, and as I noted, it was strongly put by Mr Wendler that if the jury finds that there was self-defence, that it – that he should be found not guilty to all charges, including the statutory one. Mr Wendler before me today has said that it is possible that the jury did accept that he was acting in self-defence, but his – that his self-defence over reached the degree of danger to himself and therefore, that self-defence would not have – could not be sustained. I, of course, on the – I have to find, at least as well as I can, what the jury found on the basis of beyond reasonable doubt………." 15 Although the sentencing Judge made reference to these arguments, no findings were made as to whom had been the aggressor. He did not determine whether the victim had punched the applicant and had continued to act aggressively. It appears that his Honour did not consider whether the jury was satisfied beyond reasonable doubt that the applicant was not attacked and did not fear for his safety or whether it was reasonably possible that the applicant feared for his life and believed at the time it was necessary to do what he did in order to defend himself, although the stabbing was not a reasonable response in the circumstances as he perceived them to be. 16 The finding of the relevant facts is critical to the determination of an appropriate sentence. It is the duty of the sentencing Judge to find the relevant facts: GAS v The Queen (2004) 217 CLR 198 [at 30] and to clearly identify during the remarks on sentence the facts found. 17 The finding of facts, to which I have referred, is relevant to the assessment of the applicant's culpability for his offending. Without these facts being found and identified neither the applicant nor this Court can properly understand how the sentence imposed was arrived at. The principles of fact finding following a guilty verdict by a jury are well established: see for example R v Isaacs (1997) 41 NSWLR 374 and do not need to be repeated here. 18 I propose that: (i) Leave to appeal be granted; (ii) Appeal allowed; (iii) Sentence quashed; (iv) The matter be remitted to the sentencing Judge to hear and determine the sentence proceedings according to law. ********** 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.