Regina v JPW [2006] NSWCCA 294

New South Wales Court of Criminal Appeal

CITATION: Regina v JPW [2006] NSWCCA 294

HEARING DATE(S): 1 September 2006 JUDGMENT OF: Spigelman CJ at 33; McClellan CJ at CL at 34; Sully J at 1

EX TEMPORE JUDGMENT DATE: 09/01/2006

DECISION: Crown appeal dismissed

LEGISLATION CITED: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)

PARTIES: Regina JPW

FILE NUMBER(S): CCA 2006/964

COUNSEL: P. Ingram - Crown T. Game SC - Respondent

SOLICITORS: K. Kavanagh - Crown S. O'Connor - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/61/0065

LOWER COURT JUDICIAL OFFICER: Kirkham DCJ

IN THE COURT OF CRIMINAL APPEAL 2006/964

SPIGELMAN CJ McCLELLAN CJ at CL SULLY J

1 September 2006 REGINA v JPW

NON-PUBLICATION ORDER RELATING TO THE NAME OF THE OFFENDER AND ANY PARTICULAR WHEREBY THE OFFENDER MAY BE IDENTIFIED Judgment

1 SULLY J: Before the Court is a Crown appeal against what is asserted to have been the manifest inadequacy of a penalty imposed upon a particular juvenile offender to whom I shall refer only as JPW. There is to be no publication of the actual name of that offender or of any other material apt to identify him.

2 The background facts are straightforward. 3 On 16 September 2004 there was a fracas at a shopping complex in Orange. The fracas was triggered by an attempt on the part of a uniformed security guard, who was then employed at the shopping centre, to apprehend a young friend of the respondent, that young friend having been caught in the act of stealing goods from one of the shops in the shopping centre. The respondent was standing nearby when the fracas broke out. Closed circuit television coverage suggested that the respondent had watched for a period of about thirteen seconds and had then entered the fray in aid of his friend. In the course of so intervening, the respondent kicked the uniformed security guard to the head intending thereby to assist the friend to avoid apprehension by the guard. 4 What the respondent then had devastating consequences for the guard. He suffered severe facial and cranial injuries. He was hospitalised for three days in Orange and was then flown to Sydney and hospitalised for two days in the intensive care unit at Baulkham Hills Hospital and for a further eight days in the ordinary wards of that hospital. He was prescribed medication and he has been told that he may have to use medication for the remainder of his life. He has suffered ever since his discharge from hospital from a number of serious post traumatic disorders. They include, very understandably as I think, stress and anxiety, disturbed sleep patterns, some short term memory loss, recurring headaches, a sharply reduced capacity for sustained physical exertion and a deterioration in his temperament and in his capacity to deal normally with his family responsibilities and with his general social contacts and relationships. 5 The respondent was prosecuted upon an indictment containing two charges laid as alternatives. The first and more serious charge was one of having maliciously inflicted grievous bodily harm with intent to prevent lawful apprehension of the respondent's friend. The second, and alternative, charge was one of having maliciously inflicted grievous bodily harm. 6 The former charge is one of a contravention of s 33 of the Crimes Act 1900 (NSW). It attracts upon conviction a statutory maximum penalty of imprisonment for twenty-five years. It is an offence embraced by the scheme of statutory non-parole periods that was inserted into the Crimes (Sentencing Procedure) Act 1999 (NSW) by the provisions of Division 1A of Part 4 of that Act, the relevant prescribed statutory non-parole period being one of imprisonment for seven years. 7 The respondent, upon his arraignment, pleaded not guilty to the s 33 charge and pleaded guilty to the s 35(1)(b) charge. The Crown refused to accept the plea of guilty in full discharge of the indictment and the respondent was put accordingly upon his trial by a jury. The jury found him guilty of the s 33 charge. In due course he stood for sentence for that offence. He was formally convicted and was thereupon dealt with pursuant to s 9 of the Crimes (Sentencing Procedure) Act. Sentence was formally deferred and the respondent's release was ordered forthwith upon his entering into a bond to be of good behaviour for a period of three years commencing on 11 April 2006, the date of sentence. The bond requires the respondent to appear for sentence if called upon to do so by reason of any breach of any of the conditions of the bond. The other conditions of the bond as set by the sentencing Judge are: