Reported Decision: 199 A Crim R 38 New South Wales Court of Criminal Appeal CITATION: Bourke v R [2010] NSWCCA 22 HEARING DATE(S): 8 December 2009 JUDGMENT DATE: 18 February 2010 JUDGMENT OF: McClellan CJatCL at 1; Price J at 57; RA Hulme J at 58 DECISION: 1. Grant leave to appeal. 2. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - appeal - appeal against sentence - grounds for interference - whether sentencing judge erred in assessment of the objective seriousness of the offence - appeal ground dismissed - whether sentencing judge properly considered the applicant's mental illness when sentencing - appeal ground dismissed - CRIMINAL LAW - appeal - appeal against sentence - grounds for interference - sentence manifestly excessive - application of De Simoni principle Crimes Act 1900 LEGISLATION CITED: Crimes Amendment Act 2007 Crime Sentencing Procedure Act 1999 (NSW) CATEGORY: Principal judgment Barton v R [2009] NSWCCA 285 Jione v R [2007] NSWCCA 170 Kennedy v R [2008] 181A Crim R 185 McCullough v R (2009) NSWCCA 94 McCullough v R [2009] NSWCCA 94 McIntyre v R [2009] NSWCCA 305 Mulato v R [2006] NSWCCA 282 R v De Simoni (1981) 147 CLR 383 R v Engert (1995) 84 A Crim R 67 R v George (2004) 149 A Crim R 38 CASES CITED : R v Henry (1999) 46 NSWLR 346 R v Lawless (unreported, 24 June 1994; NSWCCA Gleeson CJ, Hunt CJ at CL; Blanch J R v Rosenberger (1994) 76 A Crim R 1 R v Shi [2004] NSWCCA 135 R v Way (2004) 60 NSWLR 1968 SBF v R [2009] NSWCCA 231; (2009) 53 MVR 438 SK v R [2009] NSWCCA 21 Sproates v R [2009] NSWCCA 29 Vragovic v R [2007] NSWCCA 46 Wilkins v R [2009] NSWCCA 222 Wilkins v R [2009] NSWCCA 222 PARTIES: Paul Norman Bourke (Applicant) The Crown FILE NUMBER(S): CCA 2006/13098 COUNSEL: R Burgess (Applicant) J A Girdham (Crown) SOLICITORS: Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2006/13098 LOWER COURT JUDICIAL OFFICER: Conlon DCJ LOWER COURT DATE OF DECISION: 24 August 2008 IN THE COURT OF CRIMINAL APPEAL 2006/13098 McCLELLAN CJ at CL PRICE J R A HULME J THURSDAY, 18 FEBRUARY 2010 BOURKE, Paul Norman v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty to an offence of malicious wounding with intent to inflict grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900. The maximum penalty for the offence is 25 years imprisonment. There is a standard non-parole period of 7 years. The applicant was sentenced to a non-parole period of 8 years with a further term of 4 years imprisonment. 2 The offence was committed in the early hours of 29 April 2006. The applicant pleaded guilty to the offence for which he was sentenced on 24 August 2007 (he was originally charged with the offence of wounding with intent to murder) two weeks before the trial was due to commence. The sentencing judge provided a discount of 15% for the plea and also found special circumstances because the applicant would be serving a period of full time custody for the first time. The sentence commenced on 1 May 2006, the day on which he was taken into custody. 3 The offence was committed at a time when the applicant had absented himself on account of illness from attending prison, to fulfil his obligation for a sentence of periodic detention, having been previously sentenced for an offence of assault occasioning actual bodily harm. He also has committed a number of motor vehicle related offences and has been sentenced for an offence of break, enter and steal. 4 The relevant facts are not in dispute. On Saturday 29 April 2006 the victim held a birthday party for his girlfriend at premises in Rosemeadow. Most of the guests, many sitting, were outside on the front verandah when at about 1 am the applicant walked past the party and stopped to speak to a girl he knew. During the next few hours he stayed at the party and drank beer from a case he had been carrying when he arrived. At about 4.10 am there was an incident with his female friend and he left. 5 He returned to the Rosemeadow premises at 4.40 am via an alleyway at the side of the house. He was carrying an axe and a pole. He approached the victim, who was checking his car, and swung the axe at him. The victim fell to the ground. The victim was hit a further 3 times by the axe and the pole. The applicant yelled words to the effect of "I'll hit him again, you want me to hit him again?" Subsequently the applicant jumped in the air and "appeared to celebrate what he had done." He ran down the alley towards where he lived. 6 An ambulance was called and when the officers arrived and observed the victim he was found to have three cuts to his head, which included a cut above the right eye which went down to the bone, a cut to the left side of his head and one at the back of his head. The victim complained of pain in his fingers. 7 The evidence does not disclose a motive for the offence. 8 The applicant returned to his mother's house, where he was living. She observed that he was angry and agitated. He telephoned his sister. He was crying and sobbing and said "I have lost it, what is life, fuck it." He said he needed to go to Waratah House (a facility for persons with mental disabilities). He also called his girlfriend. He was crying and upset and said to her, "I'm in trouble, I'm going away." He also said either "I've hurt myself" or "I've hurt someone." 9 The applicant was arrested and when interviewed by the police he denied his involvement in the offence. He admitted to arguing with his mother, stating he was depressed and wanted to harm himself. He stated that his mother asked him to book himself into a mental hospital. He admitted to having drunk a case of beer but denied being heavily intoxicated. 10 The victim sustained a 10cm wound to the right forehead, right parietal occipital lacerations, subdural haemorrhage overlying the right frontal lobe, fracture of the right frontal bone, fracture of the right lateral orbital wall also involving the right frontal bone fracture of the right lamina papyracea, the third metacarpal fracture, a fractured comminuted right fronto-parietal bone, fractured comminuted right frontal bone, comminuted fractured occiput, a fractured comminuted superior orbital rim and lateral wall orbit, a right forehead laceration, a right parieto-occipital laceration, a fractured left middle finger proximal phalanx, a fractured ring finger and a lacerated exterior tendon on the third left finger. The victim has been left with a significant 10cm scar on his right forehead as well as recurring headaches and residual damage to his fingers restricting their movement. 11 On Friday, 28 April 2006 shortly before the offence the applicant attended upon his general practitioner complaining of anxiety and depression. He stated that he had been drinking heavily and had suicidal thoughts, and asked to be admitted to Waratah House. He was prescribed Diazepam, 5mg twice a day, which he took in addition to Zoloft on the Friday and Saturday before the offence. His vulnerability due to his mental condition and the combined effect of the Diazepam and alcohol provide an explanation for the offence. Subjective matters 12 The applicant is the youngest of six children and apparently had a traumatic childhood. Both his parents abused alcohol. He witnessed numerous violent attacks by his father on his mother and he had himself been the victim of his father's violent outbursts. His parents separated when he was young. He left school in Year 9 when he was 14 years old and has worked in several positions as a tyre fitter. 13 The applicant was first diagnosed with ADD/ADHD when he was 7 years old and was prescribed Dexamphetamine which he took until he was 14. His overall intelligence has been assessed as of low average ability. On one assessment he was found to out perform only 13% of the normative sample for his age. He has been assessed as having an extremely poor memory. His ADHD condition is suggested to be a predominantly inattentive type, although some doctors consider he has difficulty with impulse control. 14 The applicant was involved in 2 motor vehicle accidents in 2003 and suffered some head trauma. The hospital records confirm that he suffered a mild head injury which was hard to assess, although it was concluded there was no significant organic damage. These accidents are believed to be the cause of his poor frontal lobe functioning. 15 The applicant has displayed depressive symptoms which have been linked to his use of amphetamines and excessive consumption of alcohol. He has a history of depressive illness and polysubstance abuse. The applicant reported that he became depressed after losing his job as a tyre fitter when he was 17 and he began to drink heavily and use drugs. From the age of 18 to 19 years he consumed large amounts of alcohol on a daily basis. 16 By 2004 the applicant was expressing panic attacks and had thoughts of harming himself after consuming alcohol. In 2005 he was diagnosed with a depressed mood with suicidal thoughts, poor sleep, mood swings and poor anger control. He was diagnosed with anxiety and depression. 17 When he was interviewed by Dr Allnutt, a psychiatrist, the applicant gave an account of the offence. He told Dr Allnutt that he had broken up with his girlfriend about 1 month prior to the offence and soon after became depressed, developed some suicidal thoughts and became more snappy and irritable. He started drinking more alcohol. He reported that on the Friday before the offence he was prescribed 5mg of Temazipam three times per day. In fact he was prescribed Diazepam on a twice daily basis. He reported taking the prescription medicine and said that it made him feel lethargic, like a zombie. On the Saturday evening he started drinking with a friend at about 8 pm and then went to a party. Over the period between 8 pm until 4.15 am he estimated that he drank about 2 cases of beer with a friend. He reported that his memory of the party was patchy. He remembered an argument with a girl and with "a guy". He could not recall what the arguments were about. He could not recall leaving the party. His next recollection was hitting the victim. He recalled feeling very angry, but could not recall why. He recalled walking away and being at his sister's house, ranting and raving. 18 In a report by Dr Allnutt he said that at the time of the offence he was satisfied that the applicant had consumed a significant amount of alcohol as well as taking the anti-depressants. Dr Allnutt said that consumption of Diazepam causes disinhibition and with alcohol likely compounded each other, predisposing the applicant to disinhibited behaviour. 19 He said the applicant's lack of memory of the offence was consistent with a blackout secondary to a combination of alcohol and Diazepam. In Dr Allnutt's opinion it is likely that the applicant manifested an exaggerated response to a minor incident as a consequence of a combination of ADHD, possible frontal lobe brain damage, intoxication secondary to Diazepam, alcohol, and cannabis as well as having taken Zoloft. 20 The sentencing judge considered each of these issues when considering whether he should conclude that the applicant was suffering from a "significant mental handicap." His Honour had significant regard to the evidence of Dr Allnutt, and found that it was likely that "a combination of substances increased this vulnerability and made a significant contribution to his offending." His Honour also had regard to the fact that on the day before the commission of the offence the applicant had sought treatment for his problems and concluded that "the deterrence of others can appropriately be said to be of slightly less importance in this case." His Honour had regard to this finding when determining the appropriate sentence. 21 The applicant advanced three grounds of appeal. Ground 1: His Honour erred in assessment of the objective seriousness of the offence by: (a) failing to take into account the applicant's mental disorder; (b) finding that the objective seriousness fell towards the upper end of the range and failing to give adequate reasons for this finding. 22 In his remarks on sentence the sentencing judge found that the offence fell "above the mid range of seriousness indeed towards the upper end of the range". In reaching his conclusion his Honour found that the offence was not spontaneous – the applicant had retrieved an axe and pole from his home which were used in the attack. His Honour also found that the attack was unprovoked and occasioned significant harm to the applicant. 23 The applicant submitted that his Honour failed to give adequate reasons for his finding that the objective seriousness of the offence was "towards the upper range". It was further submitted that the sentencing judge failed to take into account the applicant's mental disorder when determining the objective seriousness of the offence. The applicant emphasised that in R v Way (2004) 60 NSWLR 1968 at [86] the court said that where mental illness or intellectual disability is causually related to the commission of an offence insofar as the offender's capacity to reason or appreciate fully the rightness or wrongness of a particular act is a relevant circumstance to the objective seriousness of an offence. It was submitted that this is because such matters can be classified as circumstances of the offence and not merely circumstances of the offender. 24 In response to the applicant's submission the respondent emphasised that there was a very significant volume of material before the sentencing judge relating to the applicant's mental health issues. There were also extensive submissions made on the issue. In his remarks on sentence the sentencing judge referred to them indicating a consideration of the relevant material. Although he summarised the contents of these reports under the subheading "subjective circumstances" when considering the objective seriousness of the offence, his Honour included an extract from the decision of this Court in R v Shi [2004] NSWCCA 135. In that decision at [35] Wood CJ at CL said: "As was decided in R v Way the determination of the objective seriousness of the offence before the court is not confined to a consideration of the circumstances which are specially listed in s 21A, 2 and 3. The motive of the offender or any condition which affects the offender's state of mind which impinges upon the elements comprised within the mens rea is of relevance although less so in the case of any condition which is self induced through abuse of alcohol or drugs." 25 It was submitted that by including this extract it is plain that his Honour had instructed himself that the offender's state of mind was relevant when considering the objective seriousness of the offence. However, his Honour did not indicate how and to what extent the applicant's mental state influenced his decision in relation to the objective seriousness of the offence. In this respect the criticism made by the applicant is well founded. Nevertheless, a consideration of the relevant material in that context does not, in my view, ultimately lead to any significantly different conclusion with respect to the objective seriousness than that reached by his Honour. 26 There was evidence before the sentencing judge which clearly indicated that it was probable that the applicant's intake of alcohol was the most significant cause of the applicant's behaviour. Intoxication, whether by alcohol or drugs may explain an offence but will ordinarily not mitigate the penalty save where the intoxication is the result of an addiction and the original addiction did not involve a free choice. An offender cannot expect a reduction in sentence merely because they have committed an offence while intoxicated: R v Rosenberger (1994) 76 A Crim R 1. 27 Although the applicant had an underlying mental disorder, which may not have been effectively treated at the time of the offence, the opinion of Dr Starmer, Honorary Associate Professor in Psychopharmacology Research clearly indicated that the applicant's condition at the relevant time was self induced. Apart from Dr Starmer the evidence of Dr Allnutt confirmed that it was a mixture of drugs and alcohol which impacted upon the applicant's underlying ADHD and possible frontal lobe deficits causing the exaggerated response and disinhibition resulting in the offence. As I have already indicated Dr Allnutt reported a lengthy and continuous bout of drinking on the relevant day with the applicant having consumed by the time of the offence approximately 20 to 30 beers. Apart from the beer the applicant consumed some whisky. His blood alcohol level was calculated by Dr Starmer to be of the order of .631g/100ml at the time of the offence. The applicant also told Dr Starmer that at about 3.30 am he had smoked 6 cones of cannabis leading Dr Starmer to conclude that the "combined effects of alcohol and cannabis appear to be the most important influences on Mr Bourke's behaviour." 28 When a condition is self induced it is not generally accepted as mitigating an offence. In these cases an offender is usually regarded as morally responsible for his condition at the time of the offence. Self induced intoxication or addiction at an age of rational choice involves moral culpability for the predictable consequences of that choice. R v Henry (1999) 46 NSWLR 346 at 383. 29 This Court has previously emphasised that the characterisation of the degree of objective seriousness of an offence is classically within the role of a sentencing judge when performing the task of finding facts and drawing inferences from those facts. In Mulato v R [2006] NSWCCA 282 at [37] Spigelman CJ said: "This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open." 30 The injuries which the victim suffered were significant. He was hospitalised for four days and although some permanent impacts have been identified, the ultimate extent of any residual effects are not yet known. The attack was apparently unprovoked when the applicant took an axe and a pole which he used to inflict the injuries. 31 In my view although the trial judge's reasons were inadequate, the conclusion which his Honour reached was appropriate. This ground of appeal fails. Ground 2: His Honour erred in his consideration of the applciant's mental disorder by: (a) failing to give sufficient weight to the applicant's mental disorder; and (b) failing to give adequate reasons for the finding that general deterrence was "only of slightly lesser importance" in the case 32 This Court has long recognised that persons suffering from mental disorders frequently become involved in criminal activity. As Gleeson CJ indicated in R v Engert (1995) 84 A Crim R 67 at 68: "Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law." 33 In the present case it is plain that his Honour gave careful consideration to the medical evidence with respect to the applicant's psychological problems. His Honour said of the evidence: "It is a little difficult to make a judgment as to whether the material that is contained in all those medical-psychological reports does amount to a 'significant mental handicap'. The offender's history was one of polysubstance abuse leading to a mild depressive disorder (according to Dr Allnutt). However, I certainly take into account that whilst Dr Allnutt said it was likely a combination of substances increased his vulnerability and made a signficiant contribution to his offending, Dr Allnutt also said: 'It would be reasonable to take into consideration other factors such as irritable mood as a consequence of a depressive disorder which also likely contributed to his increased consumption of substances in the time leading up to the alleged offence.'" 34 His Honour continued: "I also take into account the fact that on the day before the commission of the offences the offender had sought treatment for his problems. Having considered all of these matters I am of the view that the deterrence of others can appropriately be said to be of slightly less importance in this case. I have taken this into consideration in my overall assessment of the appropriate penalty." 35 The ultimate submission of the applicant was that his Honour placed too little significance on the applicant's mental disorder when considering matters of general deterrence. It was submitted that the evidence justified a conclusion that general deterrence was "significantly moderated" rather than his Honour's finding of it being of "slightly lesser importance." 36 I do not accept the applicant's submission. His Honour clearly recognised the applicant's mental difficulties but concluded that they were not of the significance which the applicant now claims. His Honour accepted that the applicant has a mild depressive disorder which may have contributed to his polysubstance abuse. There is nothing in the evidence to suggest that the applicant, although of limited intellectual capacity, was at any disadvantage in understanding that what he was doing was contrary to the requirements of the law. Indeed his actions immediately after the event make it plain that he knew what he had done was wrong and appreciated that he was to be punished. His reduced impulse control was a result largely of the self induced intoxication. By assessing the circumstances of the applicant as justifying only a slightly lesser role for general deterrence I am not persuaded that his Honour fell into error. Ground 3: the sentence is manifestly excessive 37 The applicant drew attention to the fact that he had just turned 21 years of age and prior to his incarceration for this offence had not served a period of full time custody. It was emphasised that apart from being a young man he came from a difficult background and had intellectual limitations. 38 It was emphasised that after the offences were committed the applicant asked to be admitted to Waratah House for treatment which indicated an insight into his problems. This suggested that the applicant had prospects of rehabilitation. He completed the SMART program in custody and had indicated a willingness to enter anger management programs. 39 The applicant emphasised that although he was on conditional liberty at the time of the offence, which was an aggravating factor, the sentencing judge found that his previous record did not otherwise aggravate the offence. The applicant's previous criminal record includes several driving offences, an offence of assault occasioning actual bodily harm, an offence of destroy or damage property and an offence of break, enter and steal. 40 The applicant pleaded guilty but his plea was delayed and his Honour allowed a 15% discount for that plea. The applicant emphasised that it would follow that the starting point for the sentence must have been 14 years, which it was submitted was manifestly excessive in the circumstances of this case given the victim's injuries, his mental disorder, age, background, steps that he took to address his problem very shortly before the offence, his plea and his remorse. 41 The applicant emphasised that the Judicial Commission statistics indicate that for all offenders (155) dealt with for an offence under s 33 to which the standard non-parole period of 7 years applies, between February 2003 to June 2008, 143 were sentenced to full time custody. The terms of the sentences (consecutive and non-consecutive terms) range from 2 years to 16 years. Ten percent of offenders received a sentence of 12 years, but the sentence of 12 years is at the top of the range, with only 2 offenders serving a higher sentence. Non-parole periods range from 12 months to 12 years. However, a non-parole period of 12 years was imposed in one case only, the next highest non-parole period is 8 years (imposed in 9% of cases). 42 It was suggested that the sample of statistics relied upon is relatively large and demonstrates that the sentence imposed on the applicant is at the very top of the range. The applicant submitted that guidance as to the appropriate sentence could be obtained from a number of other cases including Kennedy v R [2008] 181A Crim R 185; SK v R [2009] NSWCCA 21; Vragovic v R [2007] NSWCCA 46; Sproates v R [2009] NSWCCA 29; Jione v R [2007] NSWCCA 170. 43 As this Court has made plain on many occasions there are limitations in the guidance which can be obtained from other cases each involving their own discrete facts and circumstances. In R v George (2004) 149 A Crim R 38 at 48 this Court said: "We are unable to gain any meaningful assistance from a reference to these cases. It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority: see R v Morgan (1993) 70 A Crim R 368; R v Salameh (unreported, Court of Criminal Appeal, NSW, Hunt CJ at CL, McInerney and Blanch JJ, No 60728 of 1993, 9 June 1994) and R v Trevenna [2004] NSWCCA 43 per Barr J. At the most, other cases can do no more than become part of a range for sentencing, which in the case of manslaughter is wider than for any other offence. The difference in objective and subjective culpability, which is found in these decisions, is such that any search for a correlation between the case at hand and another decided case is to ignore the judicial discretion which is involved in the individual sentencing exercise required. As Barr J said in Trevenna, "Even if were possible to say that the culpability in two unrelated cases was the same it would not be correct to say, if the sentences were different, that for that reason alone one of them must be wrong." Inter alia any such approach would have to assume that the other was correct, and that is an assumption which cannot logically be made." 44 Although the statistics of the Judicial Commission may provide a useful guide they also make plain that the maximum penalty of 25 years may not have been afforded appropriate significance when sentencing for this offence. It is important to remember that the sentences which have been imposed and reflected in the relevant statistics must be approached with care lest they operate to confine the practical application of the full range of potential sentence provided by the statutory maximum. 45 Although the sentence imposed in the present case was undoubtedly severe I am not persuaded that either the non-parole period or the balance of term, either separately or together, were manifestly excessive requiring the intervention of this Court. The sentence was at the upper end of the range but not beyond that which was appropriate in the circumstances. I accept that the applicant has some underlying mental disorder but the dominant factor in the present offence was his intoxication. The applicant having determined upon a violent and aggressive course of action left the group at the party and, having armed himself with an axe and a metal pole, returned to attack his victim to the head in an unprovoked and relentless exchange leaving his victim defenceless, having knocked him to the ground and then inflicted considerable injury upon him. When appropriate regard is given to the standard non-parole period, being 7 years imprisonment, for an offence which his Honour found fell above the mid range of objective seriousness and towards the upper end of the range the sentence imposed was not excessive. One further matter – D e Simoni 46 In the course of argument a further issue was raised by the applicant. The applicant was convicted of malicious wounding with intent to cause grievous bodily harm contrary to s 33 of the Crimes Act. That section in the form relevant at the time of the offence was as follows: "Whosoever: maliciously by any means wounds or inflicts grievous bodily harm upon any person, or maliciously shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, with intent in any such case to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detainer either of himself or herself or any other person, shall be liable to imprisonment for 25 years." 47 The applicant submitted that accordingly the section created "at least four separate offences" the actus reus of each being malicious wounding, malicious infliction of grievous bodily harm, malicious shooting at any person and attempting to discharge any loaded firearm. The section was submitted to be similar to section 35 of the Act discussed by this Court in McCullough v R (2009) NSWCCA 94. If not four offences it was submitted that at the very least section 33 creates two separate offences of malicious wounding and malicious infliction of grievous bodily harm being offences primarily, although not exclusively, focused on the result of the offence. Accordingly it was submitted that because the applicant was charged with "malicious wounding" any injury which amounts to grievous bodily harm must be disregarded when considering the objective severity of the offence. 48 In McCullough the offender was charged with an offence contrary to s 35 of the Crimes Act pleaded as the malicious wounding of a person, being the offence identified in s 35(1)(a). During the course of a sustained assault the victim was wounded but also suffered a fracture to her wrist, which was unrelated to the wounding and objectively more serious. This Court held that the sentencing judge was not entitled to take into account the injuries constituting the infliction of grievous bodily harm which were more serious than the wounding. The principles defined by the High Court in R v De Simoni (1981) 147 CLR 383 confined the facts which were relevant when sentencing for the wounding offence. 49 The form of s 33 of the Crimes Act is different to that of s 35 and it is arguable that whether the victim's wounds constitute wounding or grievous bodily harm is not significant, provided of course that the seriousness of the injuries are appropriately recognised when determining the seriousness of the offence in the sentencing process. Whether charged as malicious wounding with intent to inflict grievous bodily harm or maliciously inflicting grievous bodily harm with intent so to do, there may be one offence although the relevant facts, including the injuries inflicted in a particular case, must be reflected in the sentence which is imposed. 50 A review of recent cases indicates (McIntyre v R [2009] NSWCCA 305; Barton v R [2009] NSWCCA 285; Wilkins v R [2009] NSWCCA 222; SBF v R [2009] NSWCCA 231; (2009) 53 MVR 438) that the principles discussed in De Simoni have on occasion proved difficult to apply. Their essence is that an offender must not be sentenced for an offence with which he or she has not been charged and convicted. If by reason of the facts of a particular case an offender could have been found guilty of an offence carrying a greater maximum penalty than that for which they have been charged, the facts which would constitute a finding of the more serious offence cannot be relied upon when sentencing the offender. If those facts would have made the offender liable for the penalty for the aggravated form of an offence they must be put to one side when sentencing for the offence for which that person has been convicted. These principles were discussed in R v Lawless (unreported, 24 June 1994; NSWCCA Gleeson CJ, Hunt CJ at CL; Blanch J) by Hunt CJ at CL in the context of sentencing for possession of drugs where the facts may disclose that the offender was engaged in a commercial narcotic venture, as opposed to possessing the drugs for his or her own use. His Honour said: "A sentencing judge may take into account all of the conduct of the prisoner, including that which would aggravate the offence, but may not take into account as matters of aggravation facts established in the evidence which would have warranted a conviction for a more serious offence or which would have rendered the prisoner liable to a more serious penalty than that which is prescribed for the offence of which he has been found guilty." 51 Hunt CJ at CL relied upon the discussions of the relevant principles by Gibbs CJ in De Simoni. At p 389 the Chief Justice said: "However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence." 52 At p 392 the Chief Justice said: "… a judge, in imposing sentence, may not have regard to a circumstance of aggravation which should have been charged in the indictment if it was intended that reliance should be placed upon it. He may, of course, have regard to facts which might ordinarily be described as circumstances of aggravation, but which do not fall within the definition of that expression in the Code, because they do not render the offender liable to a greater punishment." 53 In the present case a statement of agreed facts was tendered. There was no suggestion by defence counsel that the applicant should not be sentenced having regard to the injuries listed in the statement. It includes injuries which are properly described as wounds both to the victim's head and left hand. Those injuries are themselves of such severity that they would appropriately be described as grievous bodily harm. The fractures to the victim's skull and hands, although, because they do not involve a penetration of an internal layer of the skin, would not be described as wounds, are so related to the blows to the victim which caused the wounding that in order to properly identify the extent and consequence of the wounding consideration of the resulting fractures and their consequence was undoubtedly appropriate. 54 It must be remembered that the intent to which the applicant pleaded guilty was the intention to do grievous bodily harm. It is apparent that his Honour had that in mind, but also recognised that the injuries inflicted on the victim included both wounds, and, if considered alone, injuries in the nature of grievous bodily harm. To my mind in the circumstances of this case his Honour was both entitled and, if he was to determine the appropriate sentence, obliged to have regard to the full extent of those injuries. The consequence is not that the applicant has been sentenced for a more serious offence than that for which he was charged or for an aggravated form of the present offence. Furthermore because the infliction of wounds or grievous bodily harm is an element of the offence, the sentencing judge was careful to identify the fact that he was not taking the injuries into account as an additional aggravating factor under s 21A(2)(g) of the Crime Sentencing Procedure Act 1999 (NSW). 55 The present case is of a different character to that considered by this Court in McCullough, where it was held that wounding with which the offender was charged and convicted was unrelated to the injuries amounting to grievous bodily harm to which the sentencing judge had regard when the offender was originally sentenced. Orders 56 Although I would grant leave to appeal that appeal should be dismissed. 57 PRICE J: I agree with McClellan CJ at CL. 58 R A HULME J: I agree with the orders proposed by McClellan CJ at CL for the reasons he has given. 59 I wish to state my own reasons in relation to the final point although I am in general agreement with what his Honour has said. 60 McCullough v R [2009] NSWCCA 94 was a severity appeal in respect of a sentence of malicious wounding: s 35 Crimes Act 1900. An assault was committed by the appellant upon his mother who was aged 60. It was a sustained attack and comprised pushing, punching, kicking and placing her in a headlock. The appellant interrupted the assault for a short period in order to bite her finger. The victim was a 60 year old woman who had sustained a wound to the finger which the appellant bit, a wrist fracture, bruising and swelling to the eyes, facial lacerations and pain to the side of the rib cage. She was admitted and remained in hospital for five days. Her finger was stitched and her wrist placed in a cast. Howie J (McClellan CJ at CL and Simpson J agreeing) said: 35 The offence charged was malicious wounding. It was not the malicious infliction of grievous bodily harm. At the time of the commission of the offence s 35(1) contained two offences: s 35(1)(a) malicious wounding and s 35(1)(b) malicious infliction of grievous bodily harm. A wounding does not necessarily amount to grievous bodily harm and grievous bodily harm does not necessarily include a wounding. The two offences were included in the one section and carried the same penalty but they were distinct offences. 37 Malicious wounding is principally a result offence. Generally speaking the seriousness of the offence will significantly depend upon the seriousness of the wounding. That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wounding are irrelevant. The same can be said for an offence involving the infliction of grievous bodily harm: the more serious the harm inflicted the more serious the offence: see R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [27]. 38 The Judge was clearly entitled to take into account the nature of the assaults that gave rise to, or surrounded, the wounding. She was also entitled to take into account other injuries inflicted in the course of conduct resulting in the wounding that were less serious than the wounding. In my opinion her Honour was not, however, entitled to take into account other injuries inflicted upon the victim that were not wounds and were more serious than the wounds. A broken wrist is not encompassed in a charge of wounding and, particularly in the case of a 60 year old, was considerably more serious than the wounds. I do not believe that the Judge could take into account that the victim spent five days in hospital because that was not identified as being a result of the wounding or of injuries that were less serious than the wounding. 39 The Crown argued that the Judge was entitled to take into account all of the injuries inflicted because to do so was not in breach of the De Simoni principle. This, it was argued, was because the same penalty applied for both malicious wounding and malicious infliction of grievous bodily harm. But, as I have indicated, there are two separate offences depending upon the type of injury inflicted. It does not seem to me to be permissible to sentence an offender for injuries not charged where those injuries are more serious. Had the applicant been charged with maliciously inflicting grievous bodily harm, I have no doubt that the Judge could have taken into account all the injuries, whatever their nature, because together they amounted to grievous bodily harm, or because they were less serious than the injury that was grievous bodily harm. To sentence for the infliction of grievous bodily harm on a charge of wounding, seems to me to eradicate the difference between the two offences. The Crown submissions suggest, that, if there was any error, it was because of a "faulty averment" as to the nature of the injuries. But this is to blur the fact that there are two separate offences contained in s 35. 61 Howie J concluded that the nature of the wounds sustained by the victim were at the low end of the scale of seriousness for the offence but then immediately stated: 41 … However, the circumstances in which the wound was occasioned increased its seriousness considerably. As I have already described, the wounding occurred in the course of a prolonged and unprovoked assault upon a vulnerable woman in her own home by her own son. 62 A significant difference between the facts of McCullough and those in the present case is that in McCullough the injury that amounted to grievous bodily harm (the fractured wrist) was entirely separate and distinct from the wounding. The wrist was not fractured in the course of the infliction of any of the wounds. In the present case, however, there is a direct connection between the various facial and cranial fractures and the wounds that were sustained by the victim. There were four blows inflicted with an axe and a pole which caused all of the injuries. 63 In Wilkins v R [2009] NSWCCA 222 the offence was one of malicious wounding with intent to inflict grievous bodily harm. It was factually similar to the present case. The victim was attacked by a man who delivered a number of blows to his head with a hammer. The injuries included "4 lacerations over the scalp which were bone deep and required 30-40 stitches, a laceration to the left zygoma, a bruise over the left lower chest and … a small blow out fracture of the maxillary sinus. There was also a fracture of the medial wall of the right orbit" (Wilkins at [7]). 64 The submission made on behalf of the applicant in Wilkins was that the facial fracture should not be taken into account because the reasoning in McCullough applied as much to an offence of wounding with intent to inflict grievous bodily harm against s 33 as it did to the offence of malicious wounding in s 35(1)(a). The offence was erroneously referred to in the applicant's written submissions as being one against "s 33(1)(a)", implying that the offence was separately described in the section as the wounding offence is in s 35(1)(a). The Crown did not take issue with the applicant's submission and confined its stance to the proposition that the offence was still at the level of objective seriousness that the sentencing judge had found even if the facial fractures were excluded from consideration. In my judgment I accept the uncontested proposition advanced on behalf of the applicant. In the present case, however, the Crown has taken a different approach. 65 Written submissions filed on behalf of the applicant prior to the judgment having been delivered in Wilkins included this: It appears that his Honour sentenced the applicant on the basis that he caused grievous bodily harm pursuant to s 33(b) (sic) of the Crimes Act , rather than wounding as charged, although in this case little turns on this as the fractures generally appear to be associated with the wounding: cf McCullough v R [2009] NSWCCA 94. 66 The Crown written submissions filed on 25 November 2009 did not take up the point but made reference to all of the injuries sustained by the victim in the context of arguing in support of the findings made by the sentencing judge as to the seriousness of the offence. 67 Supplementary written submissions filed on 3 December 2009 on behalf of the applicant made reference to the judgment in Wilkins in support of a submission that the judge was in error in taking into account the injuries that amounted to grievous bodily harm when assessing the gravity of the offence. This was the subject of some debate at the hearing of the matter on 8 December 2009 and the parties were given leave to file further written submissions on the point. 68 The further written submissions on behalf of the applicant included the contention that s 33, in its form at the relevant time, provided "at least four separate offences". Prior to substitution of a new section on 15 February 2008 by the Crimes Amendment Act 2007, s 33 was in these terms: 33 Wounding etc with intent to do bodily harm or resist arrest Whosoever: maliciously by any means wounds or inflicts grievous bodily harm upon any person, or maliciously shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, with intent in any such case to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detainer either of himself or herself or any other person, shall be liable to imprisonment for 25 years. 69 On the other hand, s 35 was in these terms prior to a new section being substituted by that Act on 27 September 2007: 35 Malicious wounding or infliction of grievous bodily harm (1) Whosoever maliciously by any means: (a) wounds any person, or (b) inflicts grievous bodily harm upon any person, shall be liable to imprisonment for 7 years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years. 70 It can be seen that there is a significant difference between the form of the two sections. In my view, in the light of the further submissions that have been made and upon an examination of the terms of the two sections, whilst in the former s 35(1) there are two offences, in s 33 there is but one. It is at least arguable then that in the assessment of the severity of an offence against s 33 it is open to a sentencing judge to have regard to all of the injuries inflicted in the course of the same assault, whether they be characterised as wounding or grievous bodily harm. It is unnecessary to finally determine the point in this case because there is another important feature of McCullough v R that should be noted. 71 In McCullough, the injuries that amounted to grievous bodily harm were entirely separate and distinct from the wound that was the subject of the charge. In the present case there was an extremely close connection between the wounds and the injuries that were inflicted that did not amount to wounding. That is, in my view, a very important point of distinction. In assessing the gravity of such an offence it would be quite artificial to make an assessment of the nature of the assault with disregard to injuries that were inflicted in the course of the infliction of the wounding. 72 This is not a matter that was argued in Wilkins but it was the contention of the Crown in the present case which, in my view, reflects a practical and realistic approach. At the very least, a consideration of the grievous bodily harm that was inflicted upon the victim at the same time as the wounding is necessary for the proper evaluation of the element of the offence in s 33 that elevates it above the offence in s 35, that is, the intention to inflict grievous bodily harm. It is this element that is the primary distinction between the two sections and explains the substantial difference in the maximum penalties of 7 years and 25 years imprisonment. It is a matter of logic that the extent of the harm that was inflicted by the blows that caused the wounding, speaking generally at least, will be one indication of the degree to which the offender harboured the intention to inflict grievous bodily harm. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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