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 CATEGORY: Principal judgment R v Crombie [1999] NSWCCA 297 R v El Masri [2005] NSWCCA 167 R v Palmer [2005] NSWCCA 349 CASES CITED : TMTW v R [2008] NSWCCA 50 R v Olsen [2005] NSWCCA 243 R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94 The Queen v De Simoni (1981) 147 CLR 383 PARTIES: Ciaron Terrance McCullough v R FILE NUMBER(S): CCA 2007/4286 COUNSEL: P A Leask - Crown Self - Applicant SOLICITORS: S Kavanagh - Crown Self - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/21/1118; 06/21/1108 LOWER COURT JUDICIAL OFFICER: English DCJ LOWER COURT DATE OF DECISION: 06/09/2007 IN THE COURT OF CRIMINAL APPEAL 2007/00004286 McCLELLAN CJ at CL SIMPSON J HOWIE J WEDNESDAY 8 APRIL 2009 Ciaron McCULLOUGH v R Judgment 1 McCLELLAN CJ at CL: I agree with Howie J. 2 SIMPSON J: I agree with Howie J. 3 HOWIE J: This is an application for leave to appeal against sentences imposed in the District Court by English DCJ (the Judge). The applicant is unrepresented and did not wish to appear at the hearing of the application. He has however raised, what are in effect, three grounds of appeal in a letter to the Court. 4 The applicant was sentenced for three matters. Two charges arose from the one incident, an altercation with his brother, as a result of which he was charged with malicious damage and assault. The third charge related to a separate incident, a violent attack upon his mother, resulting in a charge of malicious wounding. In addition there was a charge of resist arrest taken into account on a Form 1 in sentencing for the charge of malicious damage. The applicant pleaded guilty to all matters. As a consequence he was sentenced to a total sentence of imprisonment for 5 years 2 months commencing from 1 January 2007 with an overall minimum period of imprisonment of 3 years 6 months. The applicant is eligible to be released to parole on 30 June 2010. 5 It should be noted that the Form 1 erroneously referred to both charges of malicious damage and assault as being the offences to which it applied. Matters can only be taken into account on a Form 1 in accordance with s 32 of the Crimes (Sentencing Procedure) Act 1999 in respect of one principal offence. The Judge was either unaware of, or disregarded what is a technical problem with the Form 1 and took the resist arrest offence into account in sentencing for the malicious damage charge. Facts 6 The malicious damage and the assault offences occurred on 14 September 2005. The applicant and his brother had been drinking together at hotels until about 8pm when the brother returned to his home. The applicant remained at the hotel. At about 11.30pm the brother was awoken by the applicant yelling from outside the house and demanding his one hundred dollars. The brother went to the window and told the applicant he would pay the money the following day. He also told the applicant to go home, as he was drunk. 7 The applicant refused to go and continued yelling out. The brother was going towards the front door, when the applicant smashed the glass panel in the middle of the door. His brother went outside and a scuffle took place. The applicant punched his brother and he fell to the ground. The applicant cut his hand on the broken glass and was taken to hospital for the wound to be stitched. The resist arrest took place following this incident. 8 The charge of malicious damage is an offence contrary to s 195 of the Crimes Act for which there is a maximum penalty of 5 years imprisonment. The assault was an offence contrary to s 61 of that Act for which the maximum penalty is 2 years imprisonment. The applicant was sentenced on the assault to a fixed term of 9 months and for the malicious damage to a fixed term of 1 year 7 months. Those sentences were to be served concurrently and dated from 1 January 2007. 9 The malicious wounding offence occurred on 7 February 2007. The applicant and his mother, who was 60 years of age, attended a funeral on that day. After the service the mother returned to her home and the applicant attended a wake a short distance away. At about 7pm, the applicant, having been asked to leave the wake because of his inebriation, arrived at his mother's home. She was about to go out and told him he could not remain there because of his intoxicated state. The applicant became angry. He shouted and swore at his mother and punched the wall. 10 His mother told him to stop and that she would drive him to the station. The applicant then grabbed her and pushed her towards the bathroom. There he punched her a number of times to the face and body. He held her in a headlock and continued to punch her. She bit his finger in an attempt to extricate herself. However the applicant pushed her and she fell into the bath. He continued to rain blows on her and kicked her. He interrupted the assault for a short period in order to bite her left finger and shout, "How do you like that?" He then punched and kicked her again. 11 When someone came to the door, she tried to get out of the bath. The applicant then braced himself against the wall so that he could stomp on her face. This caused her head to hit the wall with such force that it broke through the tiled wall. He did this once more, again forcing her head to hit the wall. He then turned on the bath tap causing hot water to splash her. The attack continued until interrupted by a neighbour who took the applicant outside to wait for police. The offender was on bail for the assault on his brother at the time of this offence. 12 As a result of this attack the victim suffered a wound to her left index finger where the applicant bit her, a fracture of her right wrist, bruising and swelling to both eyes, lacerations to her face and pain to the right side of her rib cage. She was admitted to hospital where she remained for 5 days. Her finger was stitched and her wrist placed in a cast. In a victim impact statement she set out the effects upon her of the assault including that she had been robbed of her self-confidence and security. However, she expressed her love for the applicant and the hope that the incident might "help turn him around". 13 Malicious wounding is an offence contrary to s 35 of the Crimes Act and carries a maximum penalty of 7 years. The Judge sentenced the applicant to a term of imprisonment consisting of a non-parole period of 2 years and 6 months to date from 1 January 2008 and expiring on 30 June 2010. There is a balance of term of 20 months. This sentence is cumulative upon 12 months of the sentence for the malicious damage charge. The total minimum period the applicant has to serve is 67 per cent of the total sentence as a result of the Judge finding special circumstances. Subjective considerations 14 The applicant was born on 28 May 1970. He has a criminal record dating from June 1987 mainly for dishonesty offences. However, there are also offences of assault and malicious damage. In 2000 he was sentenced to imprisonment for 6 months for offences of malicious damage and assault occasioning actual bodily harm. In 2001 for offences of assault he received suspended sentences on condition that he place himself in a residential programme for alcohol abuse. In 2004 he received suspended sentences for both assault and malicious damage on an appeal to the District Court against gaol sentences imposed in the Local Court. 15 There was a psychologist report in evidence. The applicant reported that his father abused alcohol and he described a childhood "characterised by domestic violence and occasional physical abuse". However, following the separation of his parents when he was aged 9 years, he enjoyed a happy childhood with his mother. He was unable to give any explanation for the attack upon his mother. He indicated that he would not approach his family for a "couple of years". He is single but was in a relationship between 2001 and 2003 that was volatile with alcohol related violence. He began using alcohol at 18 and has difficulty controlling his alcohol intake once he starts drinking. He acknowledged that he had a problem with alcohol and underwent a treatment programme in 2002. The psychologist stated that the applicant needs psychological treatment and relapse prevention support in relation to his alcohol abuse. He would also benefit from an anger management programme and vocational assistance. 16 In the letter the applicant wrote to the Court he refers to courses that he has attended while in custody for these matters and other steps he has taken to rehabilitate himself since he was sentenced. He expresses remorse for the attack upon his mother especially as she sent him a Christmas card telling him that she was thinking of him and loved him dearly. This Court cannot take this material and these sentiments into account unless there is error found in the exercise of the Judge's sentencing discretion. 17 The applicant has however raised three matters that he wishes the Court to consider. The first is a complaint that the Judge erred when describing the facts of the malicious damage offence. The applicant complains that it was alleged that he had pulled the aluminium screen door off its hinges yet photographs in police possession show that the screen door was intact. Grounds of Appeal Malicious damage and assault offences 18 The facts were handed up to the Judge. The applicant was legally represented and no objection was raised to their contents. The relevant passage is as follows: ……….The accused kicked the aluminium screen door and tore it away from its hinges. Count Two : the accused then smashed the glass panel in the middle of the wooden front door…….. 19 The reference to "Count Two" is a reference to the second count on the indictment before the court, being the malicious damage charge. The relevant wording in the charge on the indictment is "did maliciously damage property, namely the front door". It is clear that the malicious damage charge did not refer to the screen door and so it does not matter whether it was damaged, as stated in the facts, or was not damaged, as the applicant contends. The applicant was only being sentenced for the damage to the wooden door. In any event the court can only act upon the material placed before it, which, so far as this charge was concerned, was only the statement of facts. 20 The applicant asked this Court to consider whether the Judge "has gone outside her range of sentencing on the malicious damage case". As has been noted, the charge was in relation to the breaking of a glass panel on the wooden door. In sentencing for that matter her Honour observed that both that offence and the assault were "not of the most objectively serious of their kind". Later she said, "They are offences which fall towards the lower end of the scale constructed for like offences". The Judge gave the applicant the benefit of a discount of 25 per cent and noted that these charges could have been dealt with in the Local Court. 21 There was a very substantial significance in the fact that these two offences could have been dealt with in the Local Court that her Honour fails to mention. While it is true that the offence carries a maximum penalty of imprisonment for 5 years if the offence is dealt with on indictment, there are different maximum penalties prescribed where the matters are dealt with in the Local Court. The only reason that these matters were before the District Court was because the applicant was charged with an offence under s 112(2). This was the first count on the indictment. That was an offence that could not be determined summarily. The malicious damage charge was an alternative to that count and the assault was an additional charge. 22 The Crown eventually did not proceed on the first count. This is unsurprising having regard to the offence that was alleged. Therefore the two matters arising from the incident with his brother were before the District Court only because of the charge in the first count that was not ultimately pursued. Neither the offence of malicious damage or the assault warranted a committal to the District Court. In fact both offences must be dealt with in the Local Court (where the value of the property on the malicious damage charge does not exceed $5,000) unless election is made for trial on indictment: see s 260 of the Criminal Procedure Act and the second schedule to that Act. The election would have been made in this case only because the first count had to be dealt with in the District Court. In these circumstances it is highly relevant that the offences could have, and should have in the normal course of events, been dealt with in the Local Court. 23 The relevance of this fact is more than merely the sentencing limit to which a magistrate is generally restricted. That is the normal consideration given to the fact that an offence could have been dealt with in the Local Court; R v Crombie [1999] NSWCCA 297. However, the maximum penalty for an assault under s 61, when dealt with summarily is relevantly, 12 months imprisonment: s 268 of the Criminal Procedure Act. Here the Judge imposed a sentence of 9 months. Similarly for an offence of malicious damage where the value of the property does not exceed $5,000 the maximum penalty is 12 months. Here the Judge imposed a sentence of a fixed term of 19 months. There is no value stated of the damage but I cannot believe that it would be more than $5,000. 24 A similar situation was considered in R v El Masri [2005] NSWCCA 167. There the applicant had pleaded guilty to a charge of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act after he had been acquitted on a more serious matter. The s 59 offence would normally have been dealt with in the Local Court but was only before the District Court because of the more serious matter of which the applicant had been found not guilty. The applicant argued that in imposing a CSO of 500 hours the judge had given insufficient weight to this fact. Johnson J stated: 29 It is a well-established sentencing principle that a court dealing on indictment with a matter which was capable of summary disposal may have regard to that fact on sentence: R v Sandford (1994) 72 A Crim R 160 at 195; R v Griggs (1999) 109 A Crim R 484 at 485-6; Crombie , at paragraph 16; Doan , at 123ff (paragraph 35ff); R v LPY (2002) 135 A Crim R 237 at 240. But it is not a universal rule ( Sandford , at 195) nor a factor which operates universally to reduce sentence ( Doan , [[2000] 50 NSWLR 115] at 124). In some circumstances, the Court may conclude that the offender's criminality was too serious to be dealt with in the Local Court and that the matter was properly before the District Court: R v Hanslow [2004] NSWCCA 163 at paragraph 21. The significance of the loss of a chance to be dealt with in the Local Court will vary from case to case: R v Depoma [2003] NSWCCA 382 at paragraph 13. 30 The maximum penalty for an offence under s.59(1) Crimes Act 1900 is imprisonment for five years. When disposed of summarily in the Local Court, the maximum sentence is imprisonment for two years or a fine of 50 penalty units or both: s.268(2)(a) Criminal Procedure Act 1986 . These provisions prescribe the jurisdictional limit of the Local Court and not the maximum penalty for any offence triable within that jurisdiction: Doan at 123 (paragraph 35). Magistrates must not regard the jurisdictional limit as some form of maximum sentence reserved for a worst case: Re Attorney-General's Application under s.37 Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) (2002) 137 A Crim R 196 at 204 (paragraph 27). A judge in the District Court is not bound by the jurisdictional limit imposed on the Local Court when dealing with an offence on indictment which was capable of summary disposal, but may have regard to that limit when the case is one which could appropriately have been disposed of in the Local Court: Crombie , at paragraph 16; LPY , at 240…………………. The Court allowed the appeal and substituted a CSO of 100 hours as this would have been the sentence imposed in the Local Court had the matter been dealt with in that jurisdiction. 25 The issue was also considered in R v Palmer [2005] NSWCCA 349 where Hall J at [15] summarised the relevant principles as follows: (a) The first is that a judge in the District Court is not bound by the jurisdictional limit imposed on the Local Court when dealing with an offence on indictment which was capable of summary disposal, but may have regard to that limit when the case is one which could appropriately have been disposed of in the Local Court: Regina v. Crombie [1999] NSWCCA 297 at [16]; Regina v. LPY (2002) 136 A. Crim. R. 237 at 240 and Regina v. El Masri [2005] NSWCCA 167 at [30]. (b) Secondly, the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge: Crombie (supra) at [15]. (c) Thirdly, however, the relevant decisions that establish that principle do not go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and the subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Where it appears that that circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal: Crombie (supra) at [16]. (d) Fourthly, the significance of the loss of the chance of the matter being dealt with in the Local Court varies from case to case. In some cases it would contribute to mitigation of sentence. It is a matter to be taken into account, but is not a universal factor for the reduction of sentence: Regina v. Doan (2000) 50 NSWLR 115. (e) Fifthly, the failure by a sentencing judge to mention the matter in his or her remarks on sentence and the length of the sentence does not necessarily establish that the sentencing judge failed to have regard to the matter. In some circumstances the length of the sentence may not suggest that the matter was overlooked: Regina v. Depoma [2003] NSWCCA 382 at [17]. (f) Finally, in circumstances where a sentencing judge has made no reference to the summary disposal argument in his or her remarks on sentence, it is necessary to consider whether that omission is indicative of error. One way of testing that proposition is to consider whether the sentence itself appears manifestly excessive in all the circumstances of the case – if the factor had been taken into account and given appropriate weight, a substantially lesser sentence was appropriate in the case: El Masri (supra) at [45] per Johnson, J. (with whom Hunt, AJA. and Hulme, J. agreed). 26 Although, unlike the situation in El Masri, the Judge in this case did indicate that the two offences could have been dealt with in the Local Court, there needed, in my opinion, to be a closer analysis of the situation because of the reduced maximum penalties that would apply, they being less than the normal jurisdictional limit in the Local Court of 2 years imprisonment. As her Honour noted, both these offences were to the lower end of the scale of seriousness. In my opinion the sentence for the malicious damage was excessive having regard to the nature of the offence and in light of the fact that it exceeded the sentence that the Local Court could lawfully have imposed had it been dealt with in that jurisdiction. The sentence for the assault was also manifestly excessive. The applicant should be re-sentenced for these two offences. 27 This criticism cannot be applied to the Judge's consideration of the malicious wounding offence. It was clearly appropriate for that offence to be before the District Court, and the applicant's representative did not suggest otherwise. On its face the appropriate sentence for that offence given its seriousness was more than the magistrate could have imposed. Although the Judge did not refer to the fact that this offence could, at least notionally, have been dealt with in the Local Court, there was no error in failing to refer to that fact. Gratuitous cruelty 28 The applicant questions whether the Judge was right to find that the wounding of the mother involved gratuitous cruelty: see s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999. He draws the Court's attention to the definition of "gratuitous" in the Macquarie Dictionary as being "without reason". What the Judge said in her sentencing remarks was as follows: The Crown submits that the offender's actions on this day amount to gratuitous cruelty. The Macquarie Dictionary defines "gratuitous" interalia as "being without reason, cause or justification". The same dictionary defines "cruelty" as "causing or marked by great pain or distress". There can be no doubt that what this offender did amounts to gratuitous cruelty towards an innocent victim. There is simply no justification for what he did to his mother in punching her repeatedly which resulted in significant pain and distress, both at the time and of an ongoing nature. Clearly she was a woman who did not deserve such treatment at the hands of her son. 29 With respect, I have difficulty with her Honour's reasoning for finding that the offence involved gratuitous cruelty. In dealing with an aggravating factor under s 21A(2) it is not a case of just defining the words and seeing whether that definition applies to the facts of the case. I would have thought it was quite unnecessary to go to a dictionary to understand what was intended by Parliament in enacting this particular aggravating factor. If her Honour were correct as to the meaning of the term as used in s 21A, the aggravating factor would be present in any offence that is committed without justification and causes the victim great pain. It would be difficult to find that such a factor would not be present in almost every case of malicious wounding as the word "malice" provides that the wounding is without justification. Nor is the factor made out because the victim "did not deserve such treatment" at the hands of the offender, whatever be their relationship. 30 Gratuitous cruelty seems to me to suggest that the infliction of pain is an end in itself. It is needless yet intentional violence committed simply to make the victim suffer. It might be found, for example, where a robber inflicts pain upon an already compliant victim who was willing to part with the property demanded or in a case of a sexual offence where the victim is assaulted even though he or she is not resisting the offender. But in offences which are of their nature violent, such as wounding or the infliction of grievous bodily harm, where the purpose of the offence is to cause pain and suffering to the victim there needs to be something more for the factor to be present than merely that the offender had no justification for causing the victim pain. 31 There may be cases of malicious wounding where the factor is present because of the nature or purpose of the wounding, for example where it involved a type of torture. In TMTW v R [2008] NSWCCA 50 the applicant inflicted pain on the victim by the use of a pair of pliers applied to the victim's penis and scrotum. It was held that the judge was correct to find that offence was committed with gratuitous violence. In R v Olsen [2005] NSWCCA 243 gratuitous cruelty was found by reason of the infliction of a very large number of injuries to a very young child. But there was nothing in the present case that gave rise to this factor of aggravation in the nature of the attack upon the victim. 32 There may have been one fact that might have given rise to the aggravating factor. This is that the applicant turned on the hot water tap and splashed his mother. But there was no evidence that this caused her any pain. There is nothing in the medical reports to suggest that she suffered scalding or even redness to any part of her body that could be attributed to the effects of hot water upon her. In that circumstance the Crown could not rely upon this aggravating factor. 33 Her Honour was in my opinion in error in finding as an aggravating factor that the offender was acting with gratuitous cruelty. Certainly he was acting with gratuitous violence and causing his mother painful injuries as a result, but that did not give rise to an aggravating factor under s 21A(2). Further, it was completely unnecessary in order to form a proper assessment of the seriousness of the assaults upon his mother to introduce the concept of gratuitous cruelty. It really added nothing to the description of what was a prolonged and unprovoked assault upon a vulnerable woman in her own home by her own son. Depending upon the injury or injuries sustained by the victim that description was enough to bring the objective seriousness of the offending above the mid range. Nature of the injuries 34 However, there is a more fundamental difficulty with the sentencing exercise undertaken by her Honour. And this difficulty is a direct result of the nature of the charge and the facts placed before the Judge. 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. 36 The applicant was charged under s 35(1)(a). A wound is the penetration of the internal layer of the skin. In this case there were a number of wounds. There was a bite to the finger that required three sutures. There were also very minor lacerations of the head that did not require suturing. The medical report does not number or describe these lacerations so minor were they. Arguably the most severe injury was the fracture of the wrist and there was very severe bruising around the eyes. The pictures of the victim are truly pitiable. Although she spent five days in hospital, obviously it was not a result of the wounds. 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. 40 It is interesting to note that s 35 in the Crimes Act was recently amended. There are still two categories of offences depending upon the type of injury inflicted even though the section has been redrafted to remove the concept of malice and to include an aggravating feature of being in company. Further, recklessly causing grievous bodily harm under s 35(2) carries a maximum sentence of 10 years imprisonment, whereas recklessly wounding under s 35(4) carries a maximum penalty of 7 years imprisonment. 41 Here the principal wounding was the bite to the mother's finger that needed three sutures. The other wounds were minor although they appear to have produced a great deal of blood. The nature of the wound was, therefore, at the low end of the scale of seriousness for this offence. 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. The only explanation for the assault was that the applicant was drunk. He has a history of violent offences and was on bail for the offences against his brother at the time. The applicant has been shown considerable leniency by the courts in an endeavour to assist him overcome his problems with alcohol in the past. The sentence now must reflect a very significant degree of personal deterrence. 42 In any event a sentence before discount of 5½ years for the malicious wounding offence as against a maximum penalty of 7 years was manifestly excessive whatever injuries were taken into account by her Honour. Notwithstanding the seriousness of the conduct, as against the type of wounding or injuries in the nature of grievous bodily harm covered by the section this offence was no more than midrange notwithstanding its aggravating features. No weapon was used, the offence was unplanned and the injuries were not permanent. Unlike many wounding offences there is no evidence of any significant scarring. The applicant was truly remorseful. The sentence before discount should be 4 years. 43 The Judge allowed the respondent a discount of 25 per cent in respect of all matters. This was overly generous in respect of the assault and malicious damage charges but was a result of a submission made by the prosecutor that the pleas were made at the first opportunity. That statement was plainly wrong. The respondent had been charged by the police with both of these offences and could have indicated a preparedness to plead guilty to them at any time irrespective of the committal charge. In fact the assault charge was independent of the committal charge. The discount should have been no more than 15 per cent. 44 There were a number of matters before the District Court pursuant to s 166 of the Criminal Procedure Act. No order was made in respect of these matters and none was sought by the prosecutor. In fact there is no mention made of them in the proceedings before her Honour at all. These need to be addressed in the District Court as they represent outstanding charges against the respondent. The prosecution conduct 45 In fairness to her Honour, it should be noted that the difficulties arising in this matter and the specific errors that have been identified should be attributed almost entirely to the conduct of the prosecution. They were as follows: 1 The charge laid in respect of the respondent's mother was clearly inappropriate to reflect all her injuries. Although that was the charge laid by the police, the prosecutor had a duty to review it or to ensure that the statement of facts was consistent with it. 2. The main charge on the indictment was obviously excessive to reflect the respondent's conduct at his brother's house and realistically it was never going to be the subject of a trial. It was a s 112(2) offence carrying a maximum penalty of 20 years with a standard non-parole period of 5 years. Yet, as her Honour found, the criminality on that occasion was a minor malicious damage and assault. It was an example of gross overcharging. But the result was that charges that should have been dealt with in the Local Court were before the District Court. 3. In light of the fact that the prosecution was responsible for the change of jurisdiction of these charges, the prosecutor had a duty to advise the Judge of the applicable penalties in the Local Court in respect of the two matters on the indictment to which the respondent pleaded guilty. They were lower than the general limitation that applied to a magistrate's sentencing power and, therefore, were of particular relevance. Rather the prosecutor submitted that the offences were "somewhere around the middle of the range". For offences in the District Court, they were clearly not of that seriousness. 4. It was at the prosecutor's urging that the judge found gratuitous cruelty. That submission was erroneous and unnecessary. But it was not the only one. The prosecutor submitted that the victim was vulnerable because she had just returned from a funeral and that the respondent, as her son, was in a position of trust to her. Neither of those submissions was remotely tenable and should not have been made. 5. The whole of the prosecutor's submissions on sentence were unduly inflammatory and irresponsible. They were calculated to lead the Judge to impose a sentence that could never withstand scrutiny. That is not the role of a prosecutor. For example, a submission that the seriousness of the malicious wounding offence "falls very much towards the top" was insupportable. It is clear that the prosecutor appearing before her Honour fell short of maintaining objectivity. As a result she not only failed to assist the court from falling into appealable error but actively, although innocently, promoted a sentencing result that was unreasonable. 46 I propose that the following orders be made: 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. ********** 08/04/2009 - Edit error - Paragraph(s) Cover sheet 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.