Ciaron McCULLOUGH v R [2009] NSWCCA 94

Reported Decision: 194 A Crim R 439

New South Wales Court of Criminal Appeal

CITATION: Ciaron McCULLOUGH v R [2009] NSWCCA 94 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19/03/2009

JUDGMENT DATE: 8 April 2009

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 2; Howie J at 3

DECISION: 1. The application for leave to appeal be granted and the appeal allowed. 2. The sentences imposed in the District Court be quashed. 3. In lieu the applicant is sentenced as follows: (i) on count 3 the applicant is sentenced to imprisonment for 3 months to date from 1 January 2007 and expire on 31 March 2007. (ii) on count 2 and the Form 1 matter the applicant is sentenced to imprisonment for 9 months to date from 1 January 2007 and expire on 30 September 2007. (iii) on the charge of malicious wounding the applicant is sentenced to a term of imprisonment comprising a non-parole period of 20 months from 1 September 2007 and a balance of term of 12 months. The applicant is to be released to parole on 30 April 2009. It is to be a condition of his parole that he undertake such alcohol and anger management courses as directed by the Probation Service.

CATCHWORDS: Criminal Law - Appeal against sentences - Aggravating factor of gratuitous cruelty under s 21A(2)(f) - whether finding appropriate - Nature of injuries to be considered on a charge of wounding - relevance of maximum penalties in Local Court - Prosecutor's conduct in sentencing proceedings.

Crimes (Sentencing Procedure) Act 1999 - ss 21A(2), 21A(2)(f), 32 LEGISLATION CITED: Crimes Act 1900 - ss 35(1), 35(4), 59, 61, 112(2) Criminal Procedure Act 1986 - ss 166, 260, 268