Walker v Regina [2006] NSWCCA 347

New South Wales Court of Criminal Appeal

CITATION: Walker v Regina [2006] NSWCCA 347

HEARING DATE(S): 1 November 2006

JUDGMENT DATE: 1 November 2006

JUDGMENT OF: Spigelman CJ at 15; Sully J at 1; Hislop J at 16

EX TEMPORE JUDGMENT DATE: 11/01/2006

DECISION: Leave to appeal against sentence granted; Appeal dismissed

LEGISLATION CITED: Crimes Act 1900 (NSW)

PARTIES: John Walker Regina

FILE NUMBER(S): CCA 2006/1601

COUNSEL: D. Frearson SC - Crown D. Brezniak - Appellant

SOLICITORS: S. Kavanagh - Crown S. Cole - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/1151

LOWER COURT JUDICIAL OFFICER: Knight DCJ

LOWER COURT DATE OF DECISION: 7 April 2006

IN THE COURT OF CRIMINAL APPEAL 2006/1601

SPIGELMAN CJ SULLY J HISLOP J

1 November 2006 John WALKER v REGINA Judgment 1 SULLY J: The applicant, Mr Walker, applies for leave to appeal against a sentence of imprisonment that was passed upon him in the Penrith District Court on 7 April 2006. The applicant had earlier pleaded guilty in that Court to a charge of having maliciously attempted to wound his then wife with intent to do grievous bodily harm to her. 2 The combined effect of ss 33 and 344A of the Crimes Act 1900 entails that the statutory maximum penalty for such an offence is imprisonment for twenty-five years. The sentence in fact passed upon the applicant was one of imprisonment for a non-parole period of one year, four months and twenty-four days, with a total term of two years, ten months and twenty-two days. Those calculations allowed for some thirty-seven days of pre-sentence custody, and it is convenient for present purposes to understand that the head sentence was one of three years, and the non-parole period was one of eighteen months. It then becomes apparent that the learned sentencing Judge found special circumstances. In my respectful opinion that finding was amply justified upon the basis of the evidence before his Honour, and nothing more need to be said, for present purposes, about that particular aspect of the sentence. 3 The incident giving rise to the charge was one that emerged out of a matrimonial breakdown. The applicant and his then wife had been married for some fifteen years. Shortly before the day on which the particular offence was committed, the wife had told the applicant that she no longer loved him, that she was seeing another man, and that as far as she was concerned their marriage was at an end. That situation festered - if I may use that expression - for some few days, until the occasion on which the particular offence with which we are now concerned took place. 4 There was an extended and very ugly altercation between the applicant and his then wife. Part of it took place in a bedroom in the matrimonial home and part of it took place in the hallway of that home. 5 In the bedroom the applicant beat his wife and attacked her with a thirty-two centimetre long kitchen knife. The blade of the knife seems to have made some contact with the neck of the victim, but there was at that stage of the altercation no wounding in any particular legal sense; and the learned sentencing Judge, who saw and heard both the applicant and the wife, made a finding, which seems to me to have been open to his Honour, that at least at that stage of affairs there had been no intent on the part of the applicant to do any serious injury to his wife.