New South Wales Court of Criminal Appeal CITATION: Wilson v R [2009] NSWCCA 73 HEARING DATE(S): 23/03/2009 JUDGMENT DATE: 23 March 2009 JUDGMENT OF: McClellan CJatCL at 15; Buddin J at 1; Rothman J at 16 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - appeal against sentence - maliciously inflicting grievous bodily harm - whether aggravating factor was an inherent characteristic of offence LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Elyard v R [2006] NSWCCA 43 CASES CITED : R v Youkhana [2004] NSWCCA 412 Sayin v R [2008] NSWCCA 307 PARTIES: Quentin Keith Wilson (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2007/10189 COUNSEL: M Johnston (Applicant) M Grogan (Crown) SOLICITORS: SE O'Connor (Applicant) S Kavanagh (Solicitor for Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/10189 LOWER COURT JUDICIAL OFFICER: Black DCJ LOWER COURT DATE OF DECISION: 04/06/2008 IN THE COURT OF CRIMINAL APPEAL 2007/10189 McCLELLAN CJ at CL BUDDIN J ROTHMAN J MONDAY 23 MARCH 2009 QUENTIN KEITH WILSON v R Judgment 1 BUDDIN J: The applicant seeks leave to appeal against the sentence imposed upon him in the District Court following his plea of guilty to a charge of maliciously inflicting grievous bodily harm. The maximum penalty for that offence is imprisonment for 7 years. The applicant also requested that a charge of common assault be taken into account on sentencing. A total term of imprisonment of 2 years 3 months with a non-parole period of 12 months was imposed which the applicant was ordered to serve by way of periodic detention. 2 As there is no dispute about the facts, they can be briefly stated. On the evening in question the victim was socialising with three friends at the Billinudgel Hotel. They had been there consuming alcohol for a couple of hours when the applicant approached their table and struck up a conversation with them. He was clearly intoxicated and as he continued drinking he dribbled beer over his face and began spitting on the ground. When one of the victim's companions rebuked the applicant, the applicant punched the victim to the left side of his face. At the time the applicant was holding a schooner glass in the hand with which he punched the victim. The glass cut through the full thickness of the victim's mouth to his cheek. The wound bled profusely. The applicant then grabbed hold of the victim with his other hand. He then proceeded to punch him numerous times to his face and upper body with a clenched fist. Another of the victim's friends, a man named David Speakman, pulled the applicant off the victim. The applicant then threw a punch at Mr Speakman who managed to avoid it. It was that conduct which constituted the offence of common assault. Security staff then removed the applicant from the area. As the victim's friends were accompanying him to a car in which they intended taking him to hospital, the applicant approached the group from behind. He ran at Mr Speakman attempting to kick him in a karate style kick. Mr Speakman again avoided the blow and the applicant fell to the ground. The applicant was thereafter arrested but declined to be interviewed by police. 3 A number of reports were in evidence from which the sentencing judge was able to glean a good deal of information about the applicant's background. There were also a number of references which attested to the applicant's personal qualities. At the time of the offence the applicant was 29. He had been in a de facto relationship for a number of years and his partner remained supportive of him. He had children, with whom he remained in close contact, from a former relationship. The sentencing judge regarded his "record as a family man [as being] significant". His Honour also took into account the fact that the applicant had a responsible job and that he and his father, who were in partnership in an earth moving business, had a number of employees who were dependent on them for their positions. 4 Although the applicant had a prior record, which consisted of an offence in 2000 of possessing a prohibited drug for which he was fined and a further offence in 2001 of supplying a prohibited drug in respect of which he was ordered to perform 250 hours of community service, his Honour treated it as being irrelevant to the present offence. The sentencing judge allowed the applicant a discount of 25% for his plea of guilty and also found that he was remorseful. 5 It is apparent that at the time of the offence, the applicant had been in the habit of drinking alcohol to excess. Moreover, he conceded that he had been consuming alcohol for about 5 hours prior to the incident in question. As a consequence, he professed to have no memory of it. He also told a psychologist that he had been traumatised by an incident which had occurred a couple of months before the present offence. During that incident his brother had been savagely assaulted and the applicant maintained that since then he had suffered anxiety and panic attacks. The applicant was apparently arrested following that incident and was accordingly on conditional liberty at the time of the present offence. 6 The evidence before the sentencing judge revealed that for about 12 months prior to sentence the applicant had been receiving professional assistance to help him with issues surrounding anger management and impulse control. He was also receiving drug and alcohol counselling and was said to be motivated to change his ways. 7 The sentencing judge made the following observations about the incident: The agreed facts…show an unpleasant incident arising as a result of the excessive consumption of alcohol by the offender. The situation looked at from one point of view will be what is commonly described as a glassing, but there is more to it than that, but nevertheless those are very unpleasant incidents about which the public is understandably alarmed and it is very important for people to understand that acts of violence in public houses involving the use of glasses whether intentional or unintentional are viewed very seriously by the courts and the consequences will be severe. 8 His Honour nonetheless concluded that the applicant had not consciously used the glass as a weapon with the consequence that that factor could not be regarded as an aggravating factor within the meaning of s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (the Act). 9 The sentencing judge described the effects of the applicant's assault upon the victim in the following terms: The material indicates that what happened as a result of the contact of the glass with the face of the victim was a most unpleasant injury and the subsequent photographs are a tribute to the medical people involved and not to anybody else although no doubt the victim cooperated as much as he could but they do show that the medical people did what can only be described as an excellent job. There is no further medical material indicating any consequences of that injury of a medical nature. There is, however, a victim impact statement which I have read and it sets out, understandably, the fears and concerns of the victim immediately afterwards and his feelings and it shows that he has still, and this is perfectly understandable in my view, a wariness in social situations and in view of what happened to him on this particular evening that is hardly surprising. 10 As a consequence, His Honour made the following finding: I think….that the injury was substantial at the time and as I said it was a tribute to the doctors that they have reduced the effect of it and the appearance. I have no doubt there is still some scarring left and the emotional upset, in my view it was significant. Now whether that amounts to substantial is neither here nor there perhaps but overall I am satisfied that subs (g) is a relevant consideration. 11 The sole ground of appeal is that the sentencing judge erred in arriving at that finding. Section 21A(2)(g) provides that it is an aggravating factor that "the injury, emotional harm, loss or damage caused by the offence was substantial". Although there is some ambiguity as to whether his Honour's conclusion related to the victim's physical injury or the emotional harm which he suffered or indeed both, it is clear nonetheless that he was satisfied that this requirement of the particular sub-section had been met. It was submitted that in so concluding the sentencing judge contravened the statutory prohibition contained in s 21A(2) that the court is "not to have additional regard to any aggravating factor if it is an element of the offence". That provision prohibits "double counting" of any aggravating feature of an offence and extends to any feature which is an inherent characteristic of an offence of that kind: see Elyard v R [2006] NSWCCA 43. 12 It was submitted that it is an inherent characteristic of an offence in which grievous bodily harm is inflicted that the injury, be it a physical injury or emotional harm, will be substantial. I am inclined to accept that submission particularly given the facts of the present case. There was certainly no evidence that the injury, however it is characterised, went beyond what would normally be expected of an offence of this kind R v Youkhana [2004] NSWCCA 412. That however leaves the important question as to whether the sentencing judge had "additional regard" to this feature of the case. That question is best answered by having regard to the sentence which was imposed upon the applicant. His Honour rejected a submission from counsel, then appearing for the applicant, that a suspended sentence should be imposed. As I have said, the applicant received a sentence to be served by way of periodic detention. He also received the benefit of a finding of "special circumstances". 13 In my view, the sentencing judge extended to the applicant the maximum leniency which the circumstances of the case could possibly permit. The seriousness of offences of this kind, commonly known as "glassing", can hardly be doubted: see Sayin v R [2008] NSWCCA 307 [at par 47]. Moreover, there was also the Form 1 matter to be taken into consideration as well as the fact that the applicant was on bail at the time of the offence. I am far from persuaded that there has been any impermissible "double counting". Putting the matter another way, even if the sentencing judge has fallen into error, I would unhesitatingly conclude that no other sentence is warranted in law and should have been passed: s 6(3) of the Criminal Appeal 1912. 14 I propose that leave to appeal be granted but that the appeal be dismissed. 15 McCLELLAN CJ at CL: I agree with Buddin J. 16 ROTHMAN J: I also agree with Buddin J. 17 McCLELLAN CJ at CL: The orders of the Court will be as proposed by Buddin J. ********** 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.