Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Golding v R [2012] NSWCCA 76 Hearing dates: 13 April 2012 Decision date: 01 May 2012 Before: McClellan CJ at CL at 1, Hidden J at 2, Hislop J at 3 Decision: 1. Leave to appeal granted; 2. Appeal dismissed. Catchwords: Criminal law - appeal on ground sentence excessive - appeal dismissed Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Hyunwook Oh v R [2010] NSWCCA 148 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 Category: Principal judgment Parties: Scott Golding v Regina Representation: S. Kluss (Applicant) M. Cinque (Crown) Elliot Lawyers (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2010/54267 Decision under appeal Citation: [2011] NSWDC 104 Date of Decision: 2011-07-11 00:00:00 Before: Cogswell SC DCJ File Number(s): 2010/54267 Judgment 1McCLELLAN CJ at CL: I agree with Hislop J. 2HIDDEN J: I agree with Hislop J. 3HISLOP J: The applicant was charged with recklessly wounding another person contrary to s 35(4) of the Crimes Act 1900. The maximum penalty for the offence is seven years imprisonment. A standard non parole period of three years is applicable. 4The applicant pleaded guilty, was convicted and sentenced to two years three months imprisonment commencing on 21 February 2010 and expiring on 20 May 2012 with a balance of term of nine months expiring on 20 February 2013. A charge of common assault was taken into account on a Form 1 in sentencing the applicant. That offence occurred on the same occasion as the s 35(4) offence. 5The applicant seeks leave to appeal against sentence. The ground of appeal is: "The sentence imposed by his honour was manifestly excessive and in all the circumstances another sentence is warranted in law." 6The facts of the offence were recounted by his Honour as follows: "Mr Golding was working on fishing boats in the Northern Territory. He came to Sydney on 11 January last year [2010] on a break from work and in order to stay at a friend's house in Surry Hills. 5. Mr Stewart of counsel called his client to give evidence. Mr Golding described how he had been drinking before he left Darwin and on the plane flight to Sydney, so that when he got off the plane he was, as he described, 'blind drunk'. He got to his friend's place in Surry Hills and started drinking again straight away. They and others were drinking all day. 6. There was a young woman who lived at the same place who was in the group. Some sort of argument developed and the young woman left. 7. But the young woman came back with a group of men who appeared at the front gate of where Mr Golding was staying and drinking. One of the men who had turned up said that he wanted to 'confront' the people in the house about what had happened. A couple of people from inside went outside and asked the group to leave. They did not. 8. Then Mr Golding came out. The main man in the group outside invited Mr Golding to fight him. According to the summary of facts, Mr Golding then shouted, 'I'll sort this' and ran back into the house. He returned a moment later with a knife. He had brought the knife with him from Darwin and it was his filleting knife which he used for fishing. Mr Golding in evidence said that he had not said 'I'll sort this' but that he had said, 'We can sort this out .' I will accept for the purposes of sentencing that he said what he claimed he said in evidence before me. It does not make, in my opinion, a lot of difference to the seriousness of what then happened. 9. The men outside were accompanied by a girl who was a teenager. She was sixteen. Mr Golding was outside wielding his knife around. He ran towards the man who had invited to fight him and stabbed towards his stomach and chest area. Fortunately he missed. He tried again to stab or slash this man, but the man jumped back. At this stage the teenage girl, as the summary of facts says, 'jumped between' the man and Mr Golding, and Mr Golding 'stabbed her in the left side of her chest, below her armpit'. The girl cried out and doubled over in pain, staggered a short distance and collapsed. She was bleeding heavily. 10. Police and ambulance were called. As it happened the teenage girl suffered what the facts describe as a 'deep penetration wound that punctured her left lung, causing it to collapse and causing breathing difficulties'. She required immediate surgery. She stayed in hospital in the intensive care unit for recovery. She required a tube for several days from her chest to provide fluid. 11. Mr Golding's response to this predicament was to take himself to Adelaide. From there he took himself on to Perth and then back to Darwin. Police tracked him down in Darwin in the following month and he was arrested on 21 February 2010." 7His Honour had regard to evidence from the Probation and Parole Service report, the applicant, his sister and a psychologist qualified on behalf of the applicant. His Honour quoted from the Probation and Parole Service report as follows: "[The applicant] is a 34 year old male who is currently single and has no dependants. His childhood has been described as dysfunctional and he grew up in a home where he was witness to physical and alcohol abuse, and did not have a positive male role model in his life as he was growing up. Although describing a pattern of binge drinking and abuse of illicit drugs, [the applicant] has expressed resistance towards addressing his abuse, having participated in numerous past interventions. The fact that he does not believe he requires assistance to address his substance abuse is of concern. Whilst the offender admits to the offences, he claims to have limited memory due to his level of intoxication. It is concerning that he has in the past advised this service that he has had limited memory of his offending due to being affected by substances." 8The Probation and Parole Service records indicate: "a history of offending related to abuse of alcohol and illicit drugs. The report assessed him 'as unlikely to benefit from supervision by this Service, that is because of his past poor response'." 9His Honour noted the applicant's criminal history which involved offences of violence as follows: 11/5/95 - Maliciously damage property; 24/8/95 Assault/resist officer (x 3); 15/4/96 - Robbery with corporal violence, Armed robbery; 4/9/97 - Common assault (x 2), Destroy or damage property; 5/12/97 - Assault with intent to rob, Resist officer (x 3); 17/11/05 - Assault officer (x 2); Resist officer; Intimidate officer; 25/1/06 - Destroy or damage property; Assault occasioning bodily harm; 18/2/10 - Common assault. He also has three convictions (December 1995, June 2001 and 11 March 2004) for offences of possessing prohibited drugs. 10His Honour concluded that the subject offence occurred because the applicant introduced a knife into an already volatile situation. He regarded the offence as lying in the middle of the range for objective seriousness and toward the middle of that range. The main reason for making that finding was the seriousness of the injury. It was a very serious injury, with significant immediate consequences. 11His Honour took into account the applicant's background but considered there should be a limit to the extent to which he did so, having regard to the applicant's age. He took into account that the applicant had secured very good employment, was obviously a hard and well regarded worker. However, he considered his prospects of rehabilitation were, at best, guarded. 12His Honour rejected a submission that he should find special circumstances on the basis the applicant would need assistance in dealing with alcohol. His Honour rejected this submission given the applicant's age and his past attitude. 13His Honour concluded an appropriate overall sentence was four years imprisonment. He allowed the applicant a discount of 25 percent for a plea entered at the earliest opportunity. He took into account the matter on the Form 1, the maximum sentence for which was two years. 14Counsel for the applicant submitted that the injury to the victim was unintentional and caused, in part, by her intervention in the altercation and that the offence charged acknowledged there was a lack of intention in the applicant to cause harm. However, as his Honour observed, it was the applicant who introduced the knife, it was he who wielded the knife in the presence of the ultimate victim and it was he who, by his actions, caused serious injury to the victim. 15It was submitted that the sentencing process had started from a point that was manifestly excessive and was indicative of a sentence commensurate with s 35(2) which carries a maximum penalty of ten years. There is no substance in this submission. His Honour clearly stated that he was concerned with the charge under s 35(4) for which the maximum penalty was seven years with a standard non parole period of three years. 16His Honour was not provided with statistics in relation to the offence. However, the applicant conceded the relevant statistics indicated that the head sentence was within range and that the non parole period was at the higher end of the range. 17The applicant relied on Hyunwook Oh v R [2010] NSWCCA 148 as providing guidance as to the appropriate term. In that case there was an application for leave to appeal relating to a sentence of one and a half years imprisonment with an additional term of one year. It was submitted the offence in that case reflected far higher objective criminality than the present. 18However, as the Crown submitted, a comparison between two unrelated cases does not establish that the sentence in one of them is erroneous. In any event, the differences between Hyunwook and the applicant's case were notable: Hyunwook was previously of good character and had no Form 1 matter taken into account. In this case the applicant had a number of convictions for violence. The Form 1 matter involved him threatening a juvenile male with the knife he used to wound the victim. The need for personal deterrence to be reflected in the sentencing process was particularly heightened by the applicant's history of violent offending and his limited insight into its causes. The Court of Criminal Appeal in Hyunwook noted that the offender had been dealt with leniently in the court below. 19It was also submitted that there was no evidence as to the injury sustained by the victim. However, the injury was described in what was represented to be the agreed facts and was largely confirmed by the applicant in his evidence at the sentencing hearing. 20In my opinion, the sentence was an appropriate one when regard was had to the circumstances of the offending, the applicable maximum penalty and standard non parole period, the Form 1 offence and the heightened need for specific deterrence. 21This is a court of error. Its powers in respect of an appeal on sentence are prescribed by s 6(3) of the Criminal Appeal Act 1912. The Court will interfere with the sentence imposed in the court below only if it be shown that the sentencing judge was in error and then only if it forms the positive opinion that some other, less severe, sentence is warranted in law and should have been passed - R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [79]. 22In my opinion, error has not been established nor has it been established that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal. 23I propose the following orders: 1. Leave to appeal granted; 2. Appeal dismissed. ********** 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. Decision last updated: 03 May 2012