Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Peters v R [2014] NSWCCA 49 Hearing dates: 9 April 2014 Decision date: 09 April 2014 Before: Basten JA at [1]; Fullerton J at [11]; Davies J at [12] Decision: Leave to appeal against sentence refused. Catchwords: CRIMINAL LAW - sentencing - appeal against degree of accumulation - two offences resulting from one course of offending - no contravention of totality principle Legislation Cited: Crimes Act 1900 (NSW), ss 33, 35 Cases Cited: Iskov v R [2011] NSWCCA 241 Category: Principal judgment Parties: Troy Charles Peters (Applicant) Regina (Respondent) Representation: Counsel: Ms S Oliver (Applicant) Ms N Noman SC (Respondent) Solicitors: M Dampney Lawyer (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/261909 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-03-22 00:00:00 Before: McLoughlin DCJ File Number(s): 2009/261909 Judgment 1BASTEN JA: The applicant was sentenced at Port Macquarie by McLoughlin DCJ SC for two offences, namely causing grievous bodily harm (contrary to s 33(1)(b) of the Crimes Act 1900 (NSW)) and reckless wounding (contrary to s 35(4) of the Crimes Act). He had been convicted of each offence following a jury trial. The applicant appears to have significant psychiatric problems and went to trial on the question of the identity of the offender, he having no recollection of the offending. 2The trial judge noted that, despite his dysfunctional family background, drug addiction and impairments, "only a lengthy sentence of imprisonment will satisfy the requirements for general and specific deterrence." For the offence of reckless wounding, he sentenced the applicant to imprisonment for three years with a non-parole period of two years; and, for the offence of causing grievous bodily harm, to a period of 10 years, with a non-parole period of six years six months. The longer sentence was accumulated by a period of 12 months on the lesser sentence. There is no challenge to the individual sentences: the sole challenge is to the element of accumulation. 3The offending took place at a shack on a 50 acre rural property used as a market garden. The victim worked and lived at the property. The applicant attacked the victim when he knew he was alone by striking him with an object which was probably a pipe, crash tackling him from behind and then, while struggling on the ground, striking the victim a number of times to the face and right eye with a similar object. The victim was finally struck a heavy blow to the top of the head, rendering him semi-conscious and causing him to let go of the applicant. He was then rolled over and the applicant said, "I'm going to cut your throat", and then "I won't cut your throat, I will cut your fingers off." He then gave the victim an opportunity to choose which fingers would be cut off and used a knife to saw off a part of the victim's left index and little fingers. 4The applicant submitted that the prosecution had "conceded" that "any accumulation, if in fact any were necessary, should be minor." In fact the prosecutor said that "there may be cause for some partial accumulation, but it would be of a minor nature." If that were all that had been said, it would provide no basis for restricting the discretion of the sentencing judge in accumulating one sentence upon the other. As counsel for the Director noted in this Court, the applicant's lawyer also accepted that "it's got to be partially accumulative because of the different violence." It was troubling that this statement was not referred to by the applicant in seeking totally concurrent sentences in this Court. 5The applicant also submitted that full concurrency was warranted because there was one course of offending, all elements of which could have been brought by the Director as a single offence under s 33(1)(b) of the Crimes Act. The laying of two sets of offences was said to follow from the belief of the prosecution that there may have been circumstances of aggravation attending the reckless wounding, namely that it was committed in company with other persons. The charge of reckless wounding in circumstances of aggravation was rejected by the jury, the conviction being for reckless wounding simpliciter. 6There is no substance in this submission. While it is true that the offending could be described as a single course of conduct, it is also true that it occurred in stages and that the offender could have desisted at any point. While there might have been a significant risk of double punishment had the sentences been fully accumulated, with a further risk that the totality of the sentences would not have properly reflected the total criminality, that step was not taken. There is no suggestion of double counting in the present case, which suggests that, had there been a single offence under s 33, the sentence for that offence would have exceeded that given on count 1. 7A further argument, developed by counsel in oral submissions, was that the injuries were not so catastrophic as to demonstrate a mid-range offence, so that the finding that the offending was in the mid-range was based primarily on the apparent planning and intention of the offender. That may be so, but the finding was open to the trial judge and the basis for the finding (which is not challenged) does not itself affect the appropriate degree of accumulation. 8The applicant further submitted that this case should be distinguished from cases such as Iskov v R [2011] NSWCCA 241, which involved two offences of violence against a single victim, but separate in time by a period of some three hours. 9That submission is misconceived. The Court does not follow or distinguish other judgments on different facts. There is no suggestion that the trial judge did not properly identify and apply the relevant principles. Nor can it be said that the degree of accumulation was outside an appropriate range, given the particular circumstances of the offending. 10Leave to appeal against sentence should be refused. 11FULLERTON J: I agree with Basten JA. 12DAVIES J: I agree with Basten JA. ********** 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: 10 April 2014