[50-000] Introduction and statutory framework
[50-010] Repeal of malice: Crimes Amendment (Reckless Infliction of Harm) Act 2012
[50-020] Offences of personal violence generally viewed seriously
[50-030] The De Simoni principle
[50-040] Factors relevant to assessment of the objective gravity of a personal violence offence
Extent and nature of the injuries
Degree of violence
Intention/mental element
[50-050] Common assault: s 61
Extent of injury
Degree of violence
De Simoni considerations
[50-060] Assault occasioning actual bodily harm: s 59
Extent of the injury and degree of violence
De Simoni considerations
[50-070] Recklessly causing grievous bodily harm or wounding: s 35
Standard non-parole periods
Extent and nature of injuries
Grievous bodily harm
Wounding
De Simoni considerations
[50-080] Wound or inflict grievous bodily harm with intent to do grievous bodily harm or resist arrest: s 33
Standard non-parole periods
General sentencing principles
Extent and nature of the injuries
Intention
Degree of violence
“Worst category” cases
De Simoni considerations
Double counting
[50-085] Assault causing death: s 25A
Assault causing death while intoxicated
[50-090] Use weapon/threaten injury to resist lawful apprehension: s 33B
General sentencing principles
Harm
Use of particular weapons
De Simoni considerations
[50-100] Attempt to choke: s 37
[50-110] Administer intoxicating substance: s 38
[50-120] Assaults against police officers
Standard non-parole periods
Application for guideline judgment
Close to “worst category” case under s 60(2)
De Simoni considerations
[50-130] Particular types of personal violence
Domestic violence
Child abuse
Prison officers
“Gang” assaults
[50-140] Common aggravating factors under s 21A and the common law
Weapons
Premeditated or planned offence/contract violence
Unprovoked offence
Offence committed in company
Vulnerable victim
Commission of offence in victim’s home
Gratuitous cruelty
Substantial harm
[50-150] Intoxication
[50-160] Common mitigating factors
Injury or harm not substantial
Provocation

To top [50-000] Introduction and statutory framework

This chapter deals with the key personal violence offences under the Crimes Act 1900. Common and recently enacted offences are listed below:

Offence

Section

Penalty (Max)

Common assault s 61 2 yrs
Assault occasioning actual bodily harm s 59 5 yrs
Reckless wounding s 35(4) 7 yrs
Reckless wounding in company s 35(3) 10 yrs
Reckless infliction of grievous bodily harm s 35(2) 10 yrs
Reckless infliction of grievous bodily harm in company s 35(1) 14 yrs

Wound or inflict grievous bodily harm with intent
to cause grievous bodily harm or resist arrest

s 33(1)–(2)

25 yrs

Use or possess weapon to resist arrest

s 33B(1)

12 yrs

Attempt to choke s 37 25 yrs
Administer intoxicating substance s 38 25 yrs
Assault causing death s 25A(1) 20 yrs
Assault causing death when intoxicated s 25A(2) 25 yrs

There are also specific offences of assaulting police while in execution of duty under ss 58 and 60, with penalties ranging from 5 to 14 years.

In general terms, personal violence offences may be differentiated according to the degree of harm inflicted upon the victim and the intention of the offender, ranging from common assault to those offences where the offender has the intention to inflict a particular type of harm, such as the intentional infliction of grievous bodily harm. There are also those offences where a heavier maximum penalty applies due to the occupational status of the victim, most notably assaults upon police officers.

To top [50-010] Repeal of malice: Crimes Amendment (Reckless Infliction of Harm) Act 2012

The Crimes Amendment Act 2007 (No 38) removed “maliciously” from all offences in the Crimes Act 1900, including personal violence offences. In some cases the term has been replaced with “intentionally or recklessly”, in some cases just “recklessly”, and in other cases there is no substitution for the requirement of malice. Some sections had additional changes such as increases in maximum penalties. The amendments came into force on 15 February 2008, except with respect to s 35, where amendments commenced on 27 September 2007. See generally Criminal Trials Court Bench Book at [4-080]ff as to the position before and after the repeal of malice in the Crimes Act.

Subject to the 2012 amending Act referred to below, for offences committed after the repeal of malice with the ingredient recklessly cause/inflict a particular kind of harm, the definition of recklessness in R v Coleman (1990) 19 NSWLR 467 at 475 — that the accused had foresight of the possibility that some physical harm might result but proceeded anyway — no longer applies. An injury is caused recklessly if the accused realised that the harm — actual bodily harm, wounding or grievous bodily harm — may possibly be inflicted upon the victim by his or her actions yet he or she went ahead and acted as he or she did: Blackwell v R (2011) 208 A Crim R 392 at [82], [120], [170].

The Crimes Amendment (Reckless Infliction of Harm) Act 2012 overcomes the holding in Blackwell by permitting a jury to find an accused guilty of the offence of recklessly causing grievous bodily harm if the person causes grievous bodily harm to a person and is reckless as to causing actual bodily harm (s 35(2)). Similarly, a person is guilty of the offence of reckless wounding if the person wounds a person and is reckless as to causing actual bodily harm (s 35(4)). Materially similar amendments were enacted for offences in the Crimes Act under ss 60, 60A and 60E and particular circumstances of aggravation under s 105A. The transitional provision provides the amendments apply only in respect of an offence committed, or alleged to have been committed, on or after the commencement of the amendment, which was on 21 June 2012.

To top [50-020] Offences of personal violence generally viewed seriously

Offences of personal violence cover a wide spectrum of behaviour and consequences. Such offences are viewed very seriously by the courts. Deterrence is an important consideration, particularly in cases involving violence on the streets: R v Mitchell (2007) 177 A Crim R 94 at [29]; R v McKenna [2007] NSWCCA 113 at [2], [33]–[35], and unprovoked attacks on people going about their ordinary business: R v Woods (unrep, 9/10/90, NSWCCA), per Lee CJ at CL. The new assault causing death offences under s 25A Crimes Act 1900 (see [50-085]) were enacted because of a concern about unprovoked serious assaults.

To top [50-030] The De Simoni principle

The Crimes Act 1900 creates an escalating statutory scheme for assault and wounding offences. The principle that a court cannot take into account as an aggravating factor a circumstance that would warrant conviction for a more serious offence (R v De Simoni (1981) 147 CLR 383 at 389 quoted in Elias v The Queen (2013) 248 CLR 483 at fn 65) is an important consideration when sentencing for offences of personal violence — both in terms of the nature of the injury inflicted and the intention or mental element with which the offence is committed.

The De Simoni principle is discussed further below in relation to particular offences.

To top [50-040] Factors relevant to assessment of the objective gravity of a personal violence offence

There are three factors particularly relevant to assessing the objective gravity of a personal violence offence: the extent and nature of the injuries; the degree of violence; and the mental element of the offence. These factors are elaborated upon below and, where relevant, discussed further under each particular offence.

Extent and nature of the injuries

The nature of the injury caused to the victim will, to a very significant degree, determine the seriousness of the offence and the appropriate sentence: R v Mitchell [2007] 177 A Crim R 94 at [27]; Siganto v The Queen (1998) 194 CLR 656 at [29]; R v Zhang [2004] NSWCCA 358 at [4]. In general terms, the graver the injury, the more serious the offence. An offence may be characterised as falling close to the worst of its kind by reason of the injuries inflicted upon the victim.

Degree of violence

The degree of violence used or ferocity of the attack is a material consideration on sentence: R v Bloomfield (1998) 44 NSWLR 734 at 740; R v Zhang [2004] NSWCCA 358 at [18]. This is so even if the consequences of the attack on the victim are minimal: R v Kirkland [2005] NSWCCA 130 at [33] per Hunt AJA.

Conversely, a victim may suffer very serious injuries but the violence used may have been slight: R v Bloomfield, above, at 740.

Intention/mental element

The intention with which the offender inflicts harm is an important consideration. This factor is referred to in the discussion of particular offences, below.

To top [50-050] Common assault: s 61

Section 61 Crimes Act 1900 provides, “Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years”. An assault may be established by proof of either physical contact (battery), or an act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence: R v Knight (1988) 35 A Crim R 314 at 316–317; Barton v Armstrong [1969] 2 NSWLR 451 at 454–455; R v Venna [1976] QB 421; R v McNamara [1954] VLR 137.

Extent of injury

As a charge of common assault does not involve actual bodily harm, an offence is not mitigated by virtue of the fact that the injuries suffered by the victim were minor: R v Williams (unrep, 30/5/94, NSWCCA). The offence in that case was found to be objectively serious, as the offender had punched the victim in a cold and calculated manner.

Degree of violence

The criminality in a s 61 offence is not generally mitigated on account of there being minimal violence. In R v Lardner (unrep, 10/9/98, NSWCCA) it was held that a submission to that effect “overlooks the fact that the degree of violence involved in common assault cases is invariably moderate, because if the violence is more severe it causes actual bodily harm or wounding and results in a more serious charge.”

In R v Abboud [2005] NSWCCA 251, the offender assaulted his partner on three separate days. The assaults consisted of punching, choking, grabbing the victim’s face, kicking and biting. It was accepted that the criminality and circumstances involved in the assaults was of the most serious kind for an offence under s 61: at [17], [33].

De Simoni considerations

In R v Lardner (unrep, 10/9/98, NSWCCA) the court considered whether the sentencing judge infringed the De Simoni principle by taking into account matters which constituted the more serious offence of assault occasioning actual bodily harm. It was observed that “bodily harm” includes any hurt or injury calculated to interfere with the health or comfort of the victim; it need not be permanent but must be more than merely transient or trifling. Physical and emotional reactions to an assault such as difficulty sleeping, memory problems, anxiety and poor concentration were therefore matters properly taken into account in sentencing for common assault. However, a psychiatric condition could constitute “actual bodily harm” and such a condition should not be taken into account in sentencing for common assault.

Evidence which seeks to demonstrate actual bodily harm should not be admitted on sentence for common assault. In R v Abboud [2005] NSWCCA 251 at [19], the court said:

It is impermissible for the Crown to tender, or for a court to admit, evidence in sentencing proceedings for common assault which evidence seeks to demonstrate actual bodily harm. While it may be that this occurs because of agreement relating to a plea on a lesser charge, it is still impermissible and if it is not possible to adduce material relevant to the sentencing without also adducing irrelevant material the matter should be adjourned in order to be dealt with properly. The adducing of such material has become a common occurrence which is to be deprecated.

To top [50-060] Assault occasioning actual bodily harm: s 59

Assault occasioning actual bodily harm attracts a maximum penalty of 5 years imprisonment, or 7 years if committed in company: s 59.

Extent of the injury and degree of violence

Section 59 does not define actual bodily harm. Typical examples of injuries that are capable of amounting to actual bodily harm include scratches and bruises: McIntyre v R (2009) 198 A Crim R 549 at [44]. Actual bodily harm will likely have been occasioned where a victim has been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind: Li v R [2005] NSWCCA 442 at [45]. The degree of violence involved in an assault is a material consideration in sentencing: R v Bloomfield (1988) 44 NSWLR 734 at 740. In that case, a single punch led to very severe injuries occasioned by the victim falling on his head. The sentencing judge properly gave considerable weight to the serious injuries occasioned by the assault, but erred in not considering the limited degree of violence involved. Likewise, an offence may be objectively serious due to the nature of the assault notwithstanding minor injuries: see R v Burke [2001] NSWCCA 47 at [17].

De Simoni considerations

The phrase “bodily harm” is to be given its ordinary meaning. It includes “any hurt or injury calculated to interfere with the health or comfort of the victim”: R v Lardner (unrep, 10/9/98, NSWCCA) per Dunford J at 4. In McIntyre v R at [44], Johnson J held:

It need not be permanent, but must be more than merely transient or trifling — it is something less than grievous bodily harm”, which requires really serious physical injury, and “wounding”, which requires breaking of the skin …

There is no need to prove a specific intent to cause actual bodily harm for an offence under s 59: Coulter v The Queen (1988) 164 CLR 350. The prosecution need only prove that the accused intentionally or recklessly assaulted the victim and that actual bodily harm was occasioned as a result: R v Bloomfield (1998) 44 NSWLR 734 at 737.

An act forming the basis of an offence under s 59 may result in serious injuries. Care must be taken not to infringe the principle in De Simoni by taking into account injuries and a state of mind which would justify a more serious offence: R v Overall (1993) 71 A Crim R 170 at 175; R v Baugh [1999] NSWCCA 131 at [35].

In R v Hampton [1999] NSWCCA 341 it was held that it is permissible to take into account an injury which would amount to “grievous bodily harm” without breaching the De Simoni principle, provided no finding is made that the injury was inflicted maliciously: at [11]–[12]. There was no offence of (non-malicious) assault occasioning grievous bodily harm. The removal of “malice” as an element of an offence under s 35 (for offences committed on or after 27 September 2007) may narrow the margin between offences under s 59 and those under s 35, although an offence under s 35 from that date still requires recklessness. An offence under s 59 does not require that the Crown prove that the offender intended to cause actual bodily harm, whereas an offence under s 35 after the repeal of malice requires proof that the accused realised the possibility that grievous bodily harm or wounding (as the case may be) may possibly be inflicted upon the victim and yet went ahead and acted as he or she did: Blackwell v R (2011) 208 A Crim R 392 at [82], [120], [170].

To top [50-070] Recklessly causing grievous bodily harm or wounding: s 35

Section 35 sets out the following offences and maximum penalties when committed on or after 27 September 2007:

(1) 

recklessly causing grievous bodily harm in company: 14 yrs,

(2) 

recklessly causing grievous bodily harm: 10 yrs,

(3) 

reckless wounding in company: 10 yrs,

(4) 

reckless wounding: 7 yrs.

Like the previous form of s 35, there are still two categories of offence depending upon the type of injury inflicted with corresponding higher maximum penalties.

For offences committed before 27 September 2007, the relevant charge is malicious wounding or maliciously inflicting grievous bodily harm, with a maximum penalty of 7 years (or 10 years if committed in company).

As to what the Crown must prove for the mental ingredient of recklessness see the discussion at [50-010] above.

Standard non-parole periods

Standard non-parole periods for offences under the new s 35 were added pursuant to provisions of the Crimes (Sentencing Procedure) Amendment Act 2007 which commenced on 1 January 2008. Under ss 54A–54D Crimes (Sentencing Procedure) Act 1999 the standard non-parole periods applicable to s 35 offences “whenever committed” (Sch 2, Pt 17 of that Act) are as follows:

  • reckless grievous bodily harm in company (s 35(1)): 5 yrs

  • reckless grievous bodily harm (s 35(2)): 4 yrs

  • reckless wounding in company (s 35(3)): 4 yrs

  • reckless wounding (s 35(4)): 3 yrs.

For detailed discussion of the sentencing considerations applicable to standard non-parole periods, see Standard non-parole period offences — Pt 4 Div 1A at [7-890]ff.

Extent and nature of injuries

Generally speaking, the seriousness of the offence will significantly depend upon the seriousness of the wounding: McCullough v R (2009) 194 A Crim R 439 at [37]. The injury inflicted is not the only factor in determining the seriousness of an offence under s 35. The nature of the attack and surrounding circumstances are highly relevant: R v Channells (unrep, 30/9/97, NSWCCA); McCullough v R at [37]. In R v Douglas [2007] NSWCCA 31 at [12], it was held that the number of blows and the circumstances in which they were delivered were relevant to the objective seriousness of the offence.

Grievous bodily harm

Section 4(1) defines “grievous bodily harm” to include any permanent or serious disfiguring of the person, the destruction of a foetus, and any grievous bodily disease. At common law, the words “grievous bodily harm” are given their ordinary and natural meaning. “Bodily harm” needs no explanation and “grievous” simply means “really serious”: DPP v Smith [1961] AC 290; Haoui v R (2008) 188 A Crim R 331 at [137], [160].

The way in which grievous bodily harm may be inflicted varies substantially: R v Kama (2000) 110 A Crim R 47 at [16]. The seriousness of an offence under s 35 may be assessed by reference to the viciousness of the attack and severity of the consequences: at [17].

In R v Esho [2001] NSWCCA 415 at [160], the court held the offence was properly characterised as a “worst case” having regard to the number of participants and the ferocity of an attack upon the victim. It is not necessary for the injuries caused to the victim to be of the “worst type” for an offence to fall into the “worst case” category; the nature of the offender’s conduct may bring it within that category: R v Westerman [2004] NSWCCA 161 at [17].

In Kanengele-Yondjo v R [2006] NSWCCA 354, the offender was sentenced for two offences of maliciously inflicting grievous bodily harm. The offender infected two victims with HIV, knowing he was carrying the virus. The court agreed with the sentencing judge’s assessment of the offences as “heinous crimes which showed a contemptible and callous disregard” for the lives of the victims: at [15]–[16], [50]. The offences were rightly described as falling within the worst case category: at [17].

Wounding

“Wounding” is not defined in the Crimes Act. It was been defined at common law to involve the breaking of the skin: R v Shepherd [2003] NSWCCA 351 at [31]; Vallance v The Queen (1961) 108 CLR 56 at 77; R v Hatch [2006] NSWCCA 330 at [16]; R v Devine (1982) 8 A Crim R 45 at 47, 52, 56.

The consequences of a wounding can vary widely: Hatch, above, at [17]; and may be quite minor: R v Hooper [2004] NSWCCA 10 at [36]. It need not involve the use of a weapon: Shepherd, above at [32]. A case involving significant wounding does not by virtue of that factor alone fall into the worst case category. The offender’s mental state is a relevant factor, particularly if there is a degree of cognitive disturbance and an absence of premeditation: R v Aala (unrep, 30/5/96, NSWCCA).

De Simoni considerations

Although the same penalty applied for the separate offences under (now repealed) s 35(a), malicious wounding, and s 35(b), malicious wounding with intent to inflict grievous bodily harm, it was not permissible to sentence an offender for injuries not charged where those injuries were more serious: McCullough v R (2009) 194 A Crim R 439. Howie J said at [39]: “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”. Similar logic must apply to the offences created in s 35(2) and (4).

A sentencer must be careful to differentiate between an offence under s 35 and an offence under s 33 which involves specific intent. That does not mean that there is no “room for a ‘worst case’ under s 35 without crossing the boundary of s 33”: R v Esho [2001] NSWCCA 415 at [160].

As the more serious offence under s 33 requires proof of an intention to inflict grievous bodily harm, there is no breach of De Simoni by taking into account in sentencing for an offence under s 35 that the offender intended to inflict actual bodily harm: R v Channells (unrep, 20/9/97, NSWCCA); R v Driscoll (unrep, 15/11/90, NSWCCA).

Offences under s 35 carry higher maximum penalties where the offence is committed in company: s 35(1), (3). It is a breach of the De Simoni principle to treat the circumstance of being in company as an aggravating feature when sentencing an offender for the basic offence: R v Tran [2005] NSWCCA 35 at [17].

To top [50-080] Wound or inflict grievous bodily harm with intent to do grievous bodily harm or resist arrest: s 33

Prior to 15 February 2008, s 33 set out the offence of malicious wounding or inflicting grievous bodily harm, or malicious shooting, with intent to inflict grievous bodily harm or with intent to resist or prevent lawful apprehension. For offences committed on or after 15 February 2008, the section no longer refers to the element of malice and sets out the offences of wounding or inflicting grievous bodily harm with intent to cause grievous bodily harm (s 33(1)(a)–(b)) and wounding or inflicting grievous bodily harm with intent to resist or prevent lawful arrest or detention (s 33(2)(a)–(b)). The maximum penalty remains at 25 years imprisonment.

For definitions of “grievous bodily harm” and “wounding” see [50-070], above.

Standard non-parole periods

Under ss 54A–54D Crimes (Sentencing Procedure) Act 1999, the standard non-parole period of seven years applies to s 33 offences committed on or after 1 February 2003. In Kennedy v R (2008) 181 A Crim R 185 it was held that the offender’s psychological condition — not just the physical act — is relevant in determining the objective seriousness of an offence under s 33: at [41]. However, in Muldrock v The Queen (2011) 244 CLR 120, the High Court appear to exclude the mental condition of an offender from an assessment of objective seriousness: [54]-[55]. See further Standard non-parole period offences — Pt 4 Div 1A at [7-890]ff.

For discussion of the sentencing considerations applicable to standard non-parole periods, see Standard non-parole period offences — Pt 4 Div 1A at [7-890]ff.

General sentencing principles

The maximum sentence of 25 years imprisonment indicates the seriousness with which an offence under s 33 is regarded: R v Zhang [2004] NSWCCA 358 at [28]; R v Watt (unrep, 2/4/97, NSWCCA); R v Zamagias [2002] NSWCCA 17 at [11].

There is a breadth of conduct and consequences comprehended by s 33: R v Williams (2004) 148 A Crim R 325 at [51]; Heron v R [2006] NSWCCA 215 at [54]. It is important for the sentencer to analyse the facts of each case. Only limited assistance is to be derived from previous cases: R v Luu (unrep, 12/3/98, NSWCCA).

Extent and nature of the injuries

In R v Williams (2004) 148 A Crim R 325, the fact that the injury consisted of a single superficial stab wound was taken into account in holding that the lengthy sentence imposed at first instance was not warranted. The wound was not life threatening and did not cause any lasting physical damage: at [54].

The extent of the injuries may bring an offence into the very serious category. In R v Mitchell (2007) 177 A Crim R 94, the victim suffered a serious brain injury and was reduced to a vegetative state after a brutal attack. Howie J said at [27]:

A very important aspect of an offence under s 33 is the result of the offender’s conduct. The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence. This is not to underestimate the intent component of the offence, after all that is the element that makes the offender liable to a maximum penalty of 25 years as opposed to 7 years for a s 35 offence. But there is less scope for variation in the nature of the intention to do grievous bodily harm when determining the seriousness of a particular instance of the offence than there is for variation in the nature of the injury inflicted. …

In R v Kirkland [2005] NSWCCA 130 and R v Bobak [2005] NSWCCA 320 (two offenders jointly involved in maliciously inflict grievous bodily harm with intent), the victim was attacked with a hammer and left with extremely serious physical and mental injuries. Both cases were characterised as at the very upper end of the range of seriousness, while falling short of a worst case: Kirkland at [36]; Bobak at [32].

The objective gravity of an offence under s 33 “is not determined merely by considering the injuries”: Vragovic v R [2007] NSWCCA 46 at [32]. In that case, the circumstances of the offence, including the fact that the victim was a 57-year-old female, attacked with a metal club in her home, and that the assault was premeditated and involved repeated blows, justified the sentencing judge’s characterisation of the offence as “near the top of the range of seriousness” at [32]–[34].

Even where the injuries fall into the lower end of the range of grievous bodily harm, the circumstances in which they were inflicted may still warrant the characterisation of the offence as serious: R v Testalamuta [2007] NSWCCA 258 at [31].

An offence may be aggravated by the infliction of an injury that exceeds the minimum necessary to qualify as grievous bodily harm: R v Chisari [2006] NSWCCA 19 at [22]; R v Jenkins [2006] NSWCCA 412 at [13]; R v Zoef [2005] NSWCCA 268 at [123]. Any injury in excess of the bare requirements of grievous bodily harm can be taken into account as a matter of aggravation: Heron v R [2006] NSWCCA 215 at [49]. A sentencing judge should not speculate as to what might have occurred had the victim not received medical assistance: Heron at [49].

Intention

The mental element of an offence under s 33 is the intention that the harm inflicted be grievous bodily harm, differentiating the offence from the less serious offence under s 35: R v Wiki (unrep, 13/9/1993, NSWCCA). The degree of harm intended in a particular case may make the absence of premeditation less significant: R v Zamagias [2002] NSWCCA 17 at [13]–[14].

The degree of harm intended or foreseen by the offender, as evidenced by the offender’s conduct, was considered in R v Mitchell (2007) 177 A Crim R 94. The victim was reduced to a vegetative state following a brutal and sustained attack as he lay unconscious on the ground. Howie J said at [35]:

The Judge took into account as a mitigating factor that the respondents did not intend the degree of harm that was caused to the victim. That consideration would be understandable in a case where the injury far outweighed what might have been envisaged as the consequence of the behaviour causing it. Such a consideration might be relevant in the case of, for example, a single punch to the face that results in the victim falling to the ground and suffering very grievous injuries as a consequence. But in this case the respondents indulged in … a brutal and sustained attack upon a defenceless person by kicking or stomping on his head and body while he was lying on the ground. The fact that the respondents might not have foreseen that the consequence of such serious conduct was to have left the victim in a vegetative state is of little, if any, weight in my opinion.

Degree of violence

The degree of violence used or the ferocity of the attack is a material consideration on sentence: R v Zhang [2004] NSWCCA 358 at [18]. The consequences to the victim are not the only important factor and the acts of the offender which led to those consequences should also be considered: R v Kirkland [2005] NSWCCA 130 at [33].

“Worst category” cases

In R v Baquayee [2003] NSWCCA 401, the court held that the combination of the use of a handgun (an aggravating feature) and the severity of the wounds placed the crime in the worst case category. The sentencing judge should have considered imposing the maximum sentence: at [12].

In R v Stokes and Difford (1990) 51 A Crim R 25, it was held that the repeated attack on a fine defaulter by prison inmates, rendering the victim a quadriplegic, fell within the worst case category: at 34.

De Simoni considerations

In R v Pillay (2006) 167 A Crim R 312, the offender was acquitted of attempted murder (s 27) and convicted of maliciously wound with intent to inflict grievous bodily harm. The sentencing judge erred in taking into account, as aggravating factors, the pre-meditation and planning of the offence whereby the offender had forced the victim to write a false suicide note. Such factors implicitly ascribed an intention to murder and breached the principle in De Simoni: at [16].

Double counting

The actual or threatened use of violence cannot be considered as an aggravating factor of an offence under s 33 as the infliction of actual violence is an element of the offence of malicious wounding: R v Cramp [2004] NSWCCA 264 at [53]–[58]; R v LNT [2005] NSWCCA 307 at [28].

To top [50-085] Assault causing death: s 25A

The Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (the Act) which commenced on assent on 31 January 2014 creates two new offences. Section 25A(1) creates an offence of assault causing death. A person is guilty of such an offence:

(a) 

the person assaults another person by intentionally hitting the other person with any part of the person’s body or with an object held by the person, and

(b) 

the assault is not authorised or excused by law, and

(c) 

the assault causes the death of the other person.

The maximum penalty for the offence is 20 years imprisonment. No standard non-parole period has been assigned for the offence under s 25A(1).

Assault causing death while intoxicated

Section 25A(2) sets out the aggravated form of the s 25A(1) offence. A person aged 18 or above who commits an offence under s 25A(1) when he or she is intoxicated commits an offence under s 25A(2).

The maximum penalty for an offence under s 25A(2) is 25 years imprisonment. No standard non-parole period has been assigned for the offence under s 25A(2).

Section 25B(1) sets a mandatory minimum for the offence. It provides that a court is required to impose a sentence of imprisonment of not less than 8 years on a person guilty of an offence under s 25A(2). Section 25B(1) further provides that any non-parole period for the sentence is also required to be not less than 8 years. Section 25B(2) provides that “… nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or no sentence (or to impose a lesser non-parole period)”.

Section 76(a) Crimes (Sentencing Procedure) Act provides that home detention is not available for either of the offences under s 25A.

Section 25A(3) provides that an assault causes the death of a person whether the person is killed as a result of the injuries received directly from the assault or from hitting the ground or an object as a consequence of the assault. Section 25A(4) further provides that it is not necessary for the Crown to prove that the death was reasonably foreseeable for the purposes of the basic or aggravated offence.

To top [50-090] Use weapon/threaten injury to resist lawful apprehension: s 33B

Section 33B provides it is an offence to use, attempt to use, threaten to use, or possess an offensive weapon or instrument, or threaten injury to any person or property with any of the following states of mind:

  • intent to commit an indictable offence

  • intent to prevent or hinder lawful apprehension or detention

  • intent to prevent or hinder investigation.

The maximum penalty is 12 years, or 15 years if committed in company.

General sentencing principles

In R v Hamilton (1993) 66 A Crim R 575, Gleeson CJ said 581:

… offences against s 33B, which make it unlawful to use an offensive weapon or instrument with intent to prevent lawful apprehension, are regarded by the Court extremely seriously. It is incumbent upon the Court in dealing with offences of this nature to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task.

Remarks to similar effect were made in R v Barton (2001) 121 A Crim R 185 at [33].

General deterrence must play a significant role in the sentencing of offenders for offences contrary to s 33B: Sharpe v R [2006] NSWCCA 255 at [72]. In R v Perez (unrep, 11/12/91, NSWCCA), a case involving the driving of a vehicle towards police officers, Kirby P (with whom Gleeson CJ and Campbell J agreed) said at pp 20–21:

The provision of the specific offence found in s 33B of the Crimes Act was obviously intended by Parliament to keep our community free of just the kind of conduct of which the jury convicted the appellant in this case … If in such circumstances, persons defy the instructions of police officers to halt and use motor vehicles or other weapons in an attempt [to] prevent detention, they must expect heavy punishment. Nothing else will mark society’s disapproval of the objective features of such offences … Only by imposing severe punishment will courts reflect the seriousness which Parliament has attached to such offences by the specific provisions of s 33B of the Crimes Act. Only in that way may the message of deterrence be sent from the courts to people who are tempted to act as the appellant did.

The threat of violence constituted by an offender using an offensive weapon to prevent lawful apprehension cannot be considered an aggravating factor of an offence under s 33B(1)(a) as this is an essential element of that offence: R v Franks [2005] NSWCCA 196 at [26]–[27]; s 21A(2) Crimes (Sentencing Procedure) Act 1999.

Harm

In R v Mostyn (2004) 145 A Crim R 304, it was an aggravating factor that, as a result of the offence, the victim (a police officer) suffered from a Post Trauma Distress Disorder that left him permanently disabled so far as his police duties were concerned: at [186].

Use of particular weapons

The brandishing of a firearm constitutes a serious form of the offence, even if the firearm is incapable of being discharged: R v Mostyn (2004) 145 A Crim R 304 at [187]. In Curtis v R [2007] NSWCCA 11, it was noted that the brandishing of knives was sufficient to constitute the offence. The offender’s use of a knife to kill a police dog aggravated the offence and took it into the higher levels of objective seriousness: at [66]–[67].

Using a syringe to threaten stores employees attempting to apprehend a shoplifter was characterised as “serious criminal responsibility” in R v Carter (unrep, 29/10/97, NSWCCA).

In R v Sharpe [2006] NSWCCA 255, it was held that it would be impermissible to have additional regard to the threatened use of a weapon as an aggravating factor given that the threat to use an offensive weapon is an element of an offence under s 33B: at [49]–[50].

De Simoni considerations

It is a breach of the principle in De Simoni to take into account that grievous bodily harm was occasioned for an offence under s 33B: R v Kumar [2003] NSWCCA 254 at [11].

To top [50-100] Attempt to choke: s 37

It is an offence under s 37 Crimes Act 1900 to attempt to choke, suffocate or strangle a person with intent to commit an indictable offence. The maximum penalty is 25 years imprisonment. In R v MW [2007] NSWCCA 291, it was recognised that there are “varying degrees of criminality in an offence contrary to s 37.” McClellan CJ at CL added at [43]:

It must be remembered that the offence itself is defined as an “attempt to choke.” When that attempt results in the victim becoming unconscious the offence is one of considerable gravity.

Similarly in R v HQ [2003] NSWCCA 336, it was held that choking the victim to the point where she lapsed into semi-consciousness constituted a serious form of the offence: at [42].

To top [50-110] Administer intoxicating substance: s 38

Section 38 Crimes Act 1900 sets out an offence of administering an intoxicating substance with intent to commit an indictable offence. Prior to the commencement of the Crimes Amendment (Drink and Food Spiking) Act 2008 on 28 March 2008, the offence was expressed in terms of administering “any chloroform, laudanum or other stupefying or over-powering drug or thing”. The substitution of “intoxicating substance” (defined in s 4(1) to include alcohol, a narcotic drug or any other substance that affects a person’s senses or understanding) is not expected to significantly affect the sentencing principles applicable to this offence. The maximum penalty remains at 25 years imprisonment.

In R v Reyes [2005] NSWCCA 218 Grove J said at [81] that “a gauge to the seriousness with which Parliament has regarded offences of this type can be found in the prescription of a maximum term of twenty five years imprisonment” and emphasised the importance of general deterrence in sentences for offences under s 38. Beazley JA said in Samadi v R (2008) 192 A Crim R 251 at [160] that the legislature and the courts do not think drink or food spiking is a “soft crime” and “[t]hose who are convicted of such offence should expect to be dealt with by the courts on the basis that it is a very serious crime.”

A conviction for an offence under s 38 is often accompanied by a conviction for the indictable offence which motivated the commission of the s 38 offence. However, courts have emphasised the need to impose a salutary penalty for an offence under s 38 in its own right: R v Lawson [2005] NSWCCA 346 at [31]; R v Dawson [2000] NSWCCA 399 at [54]; Samadi v R at [160]. In R v TA (2003) 57 NSWLR 444 at [34], the court rejected the submission that there should be only slight accumulation of sentences:

… committing sexual offences whilst the victim has been drugged adds a significant degree of culpability to the administration of the drug intending to commit the offence. … Furthermore, the deterrent effect of a slight accumulation, as proposed by the applicant, would be significantly eroded. Having administered the stupefying drug, the offender would then suffer little more punishment by moving to the next step and actually committing the intended or other sexual assaults. I consider that the distinction between the offences is real and punishment for both should reflect the considerable additional criminality involved in fulfilling the intention with which the drug is given.

An offence under s 38 is aggravated if the administration of the substance was “potentially injurious of itself”: R v TA at [34]; see also R v Bulut [2004] NSWCCA 325 at [15].

To top [50-120] Assaults against police officers

It is an offence under s 58 Crimes Act 1900 to assault an officer in the execution of his or her duty. The maximum penalty is 5 years imprisonment.

Section 60 Crimes Act 1900 sets out further offences relating to the assault of police officers while in the execution of their duty. The offences are:

  • assault, throw missile at, stalk, harass or intimidate — maximum penalty of 5 years: s 60(1) — maximum penalty 7 years if committed during public disorder: s 60(1A)

  • assault occasioning actual bodily harm — maximum penalty of 7 years: s 60(2) — maximum penalty 9 years if committed during public disorder: s 60(2A)

  • wound or inflict grievous bodily harm — maximum penalty 12 years: s 60(3) maximum penalty 14 years if committed during public disorder: s 60(3A).

Assaults against police officers have long been treated as serious offences requiring condign punishment: R v Crump (unrep, 7/2/1975, NSWCCA). General and specific deterrence are important considerations in sentencing for such offences: R v Myers (unrep, 13/2/90, NSWCCA); R v Edigarov (2001) 125 A Crim R 551 at [42].

Standard non-parole periods

Under ss 54A–54D Crimes (Sentencing Procedure) Act 1999, the standard non-parole period of three years for s 60(2) offences and five years for s 60(3) apply to offences committed on or after 1 February 2003: see Winn v R [2007] NSWCCA 44; and Kafovalu v R [2007] NSWCCA 141. In Kafovalu it was held that the sentencing judge did not err in treating an offence under s 60(2) involving a single but heavy blow to the officer’s head as one falling within the mid-range of objective seriousness.

For detailed discussion of the sentencing considerations applicable to standard non-parole periods, see Standard non-parole period offences — Pt 4 Div 1A at [7-890]ff.

Application for guideline judgment

In 2002, the Attorney General sought a guideline judgment in relation to offences under s 60(1). The court declined to promulgate a guideline: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (2002) 137 A Crim R 196 at [64]. However, Spigelman CJ emphasised the importance of deterrence as a consideration in sentencing offenders for assault against police officers at [22] and [26]:

Offences involving assault of police officers in the execution of their duty are serious offences requiring a significant element of deterrence in the sentences to be imposed. The community is dependent to a substantial extent upon the courage of police officers for protection of lives, personal security and property. The Courts must support the police in the proper execution of their duties and must be seen to be supporting the police, and their authority in maintaining law and order, by the imposition of appropriate sentences in cases where assaults are committed against police.

… significant risks are run by police officers throughout the State in the normal execution of their duties. The authority of the police, in the performance of their duties, must be supported by the courts. In cases involving assaults against police there is a need to give full weight to the objective of general deterrence and, accordingly, sentences at the high end of the scale, pertinent in the light of all the circumstances, are generally appropriate in such cases.

The court pointed out that these principles applied to sentencing in both the Local and District Courts: at [27]. The court also recognised that offences under s 60(1) encompass a wide range of behaviour, and that whether a custodial sentence is required will depend on the nature of the assault: at [38]–[39].

Close to “worst category” case under s 60(2)

In Bolamatu v R [2003] NSWCCA 58, the offender ran over a police officer while leaving the scene in a car. The police officer had stood in front of the car holding out her arm to signify “stop”. The officer suffered grave injuries. It was held that this was “as reprehensible as [an offence under s 60(2)] can be, and therefore could be seen as demanding something like the maximum possible sentence”: at [10].

De Simoni considerations

In R v Pickett [2004] NSWCCA 389, the offender pleaded guilty to assault occasioning actual bodily harm to a police officer (s 60(2)) after being originally charged with using an offensive weapon, namely a motor vehicle, with intent to avoid lawful apprehension (s 33B(1)). So long as the sentencing judge did not find that the motor vehicle was used with the intention of avoiding lawful apprehension there would be no infringement of the De Simoni principle: at [14]. A finding that the offender had acted intentionally or deliberately did not necessarily entail a conclusion that he was guilty of the more serious offence under s 33B. There was no infringement of De Simoni. It was open to find there was an intention to commit the assault without taking the further step of concluding that there was also an intention in doing so to avoid lawful apprehension: at [16].

In R v Newton [2004] NSWCCA 47, the offender was charged with various offences including use of an offensive weapon to avoid lawful apprehension (s 33B) and assault police in execution of duty (s 58). The fact that the offender was, around the time of the assault, armed with and brandishing knives was relevant to the objective gravity of the offence and did not infringe the De Simoni principle: at [22]–[23]; cf R v Simpson [2001] NSWCCA 239 at [15]–[18].

To top [50-130] Particular types of personal violence

Domestic violence

Domestic violence offences should be treated with real seriousness: Hiron v R [2007] NSWCCA 336 at [32]. General deterrence, personal deterrence and denunciation are of particular importance: Vragovic v R [2007] NSWCCA 46 at [33]; R v Hamid (2006) 164 A Crim R 179 at [68]; R v Dunn (2004) 144 A Crim R 180 at [47]; R v Edigarov (2001) 125 A Crim R 551 at [41].

A prior relationship between the offender and the victim does not operate to mitigate an offence of personal violence: Raczkowski v R [2008] NSWCCA 152 at [46]. A sentencing judge should not enter into a determination of the merits of matrimonial disputes: R v Kotevski (unrep, 3/4/98, NSWCCA). Distress at the breakdown of a relationship is no excuse for violence: Walker v R [2006] NSWCCA 347 at [7]. Nor should an indication of forgiveness on the part of the victim be used to reduce an otherwise appropriate penalty, given that victims of domestic violence “may be actively pressured to forgive their assailants or compelled for other reasons to show a preparedness to forgive them”: Shaw v R [2008] NSWCCA 58 at [27] (but given some weight on re-sentencing in that case because it indicated favourable prospects of rehabilitation: at [45]); R v Quach [2002] NSWCCA 173 at [28]: R v Rowe (1996) 89 A Crim R 467 at 472–473; R v Fahda [1999] NSWCCA 267 at [26]; R v Berry [2000] NSWCCA 451 at [32].

An offence committed in breach of an Apprehended Domestic Violence Order is thereby aggravated: Kennedy v R (2008) 181 A Crim R 185 at [8]; R v Macadam-Kellie [2001] NSWCCA 170 at [37]–[38]; R v Rumbel (unrep, 15/12/94, NSWCCA).

Section 12 Crimes (Domestic and Personal Violence) Act 2007, which commenced on 10 March 2008, provides for the recording of “domestic violence offences” on a person’s criminal record when a person pleads guilty to or is found guilty of such an offence: s 12(2). If the court makes a direction for the recording of an offence as a domestic violence offence, the prosecution may apply for further offences on the person’s record to be classified as “domestic violence offences”: s 12(3). In the Second Reading Speech it was said that having a conviction for domestic violence “would leave a permanent stain on a person’s record and would be readily identifiable by a sentencing court or a court making a bail determination.” A domestic violence offence is defined as a personal violence offence committed against a person with whom the offender has a domestic relationship: s 11. “Domestic relationship” is defined in s 5. The definition of “personal violence offence” in s 4 includes all assault and wounding offences referred to in the list above at [50-000].

In addition, on convicting an offender of a domestic violence offence, a court must make an Apprehended Domestic Violence Order for the protection of the victim unless satisfied that an order is “not required”: s 39 Crimes (Domestic and Personal Violence) Act 2007.

Child abuse

In R v Smith [2005] NSWCCA 286 Latham J said at [54]:

Even when offences against children are committed as a result of momentary lapses of control (which was not the case here) this Court has stressed that appropriately severe sentences have an important deterrent function:

“Young children cannot protect themselves from the acts of adults. They cannot lodge complaints about criminal behaviour perpetrated upon them. They are entirely reliant upon their parents … to care for them and protect them. [Where] that protective trust [is] abused … the only protection which society can give to young children is the protection afforded by the courts: R v Pitcher 19/2/96 NSWCCA unreported.” 

Similar comments were made in R v O’Kane (unrep, 9/3/95, NSWCCA), a case involving seven counts of maliciously inflicting grievous bodily harm by the offender on his infant son:

It is important that all in the community understand that children cannot be ill-treated, let alone be the victims of the malicious infliction of serious bodily harm. Personal problems on the part of adults do not excuse such conduct.

Prison officers

Personal and general deterrence are important considerations in sentencing for offences of violence against prison officers: R v Davis (unrep, 4/2/94, NSWCCA).

“Gang” assaults

In R v Duncan [2004] NSWCCA 431, Wood CJ at CL said at [218]:

Young offenders who elect to respond to any form of confrontation between different groups, need to understand, with crystal clarity, that sentences of imprisonment await those who cause the confrontation to be elevated to one involving extreme violence. Particularly is that so if they band together, in a brutal and cowardly pack attack with weapons, on a single unarmed and defenceless victim.

To top [50-140] Common aggravating factors under s 21A and the common law

Certain objective aggravating factors frequently arise in the context of personal violence offences. These factors — which arise either at common law and/or under s 21A Crimes (Sentencing Procedure) Act 1999 — are discussed here. For a further discussion of aggravating and mitigating factors, see Objective factors at [10-000] and Section 21A factors at [11-000].

Weapons

The actual or threatened use of a weapon will generally aggravate a personal violence offence: s 21A(2)(c) Crimes (Sentencing Procedure) Act 1999 — provided it does not constitute an inherent element of the offence.

While it is rare for an offence under s 33 not to involve the use of a weapon, the use of a weapon is not an essential element of that offence. Where a weapon has been used in the commission of an offence under s 33 it should be taken into account as an aggravating factor: R v Chisari [2006] NSWCCA 19 at [31]; R v Deng (2007) 176 A Crim R 1 at [7], [63]; R v Dickinson [2004] NSWCCA 457 at [23]–[24]; Nowak v R (2008) 183 A Crim R 526 at [17].

In R v Sharpe [2006] NSWCCA 255 (threaten use of weapon to resist arrest, s 33B(2)), it was held that it would be impermissible to have additional regard to the threatened use of a weapon as an aggravating factor given that the threat to use an offensive weapon is an element of the s 33B(2) offence: at [49].

Many objects not inherently answering the description “weapon” (for example, motor vehicles: R v Barton (2001) 121 A Crim R 185; R v Kumar [2003] NSWCCA 254), are nonetheless capable of being so regarded by virtue of their use as a weapon: R v Smith [2005] NSWCCA 286 at [38].

Knives etc

The Court of Criminal Appeal has frequently observed that the use of a knife is a feature which specially aggravates the seriousness of an offence: R v Dickinson [2004] NSWCCA 457 at [23]; R v Reid (2005) 155 A Crim R 428 at [25]. The presence of a knife in an emotionally charged situation increases the danger of the situation and the penalty which is liable to be imposed: R v Hampton [1999] NSWCCA 341 at [10]. Any assault involving the use of a knife must be regarded as calling for a significant sentence, for the purposes of both specific and general deterrence: R v Watt (unrep, 2/4/97, NSWCCA). The degree of seriousness in the use of a knife is not proportionate to its size: R v Doorey [2000] NSWCCA 456 at [27].

In the case of a machete or meat cleaver, the abhorrence which the community holds in relation to the use of knives is compounded, having regard to the terrible wounds which can be inflicted with such weapons: R v Zhang [2004] NSWCCA 358 at [29]. A machete is to be considered a very dangerous weapon: R v Drew [2000] NSWCCA 384 at [15]. The use of a weapon such as a screwdriver is on par with the use of a knife: R v Greiss [1999] NSWCCA 230 at [13].

Firearms

In an offence under s 33, it is difficult to contemplate a more serious aggravating feature than the use of a handgun: R v Baquayee [2003] NSWCCA 401 at [12]. Where a firearm is used to inflict grievous injury, the sentence imposed should involve a substantial component to reflect general deterrence: R v Zoef [2005] NSWCCA 268 at [124]. The courts must give a clear message to persons who are minded to use firearms to resolve disputes that they will be dealt with severely: R v Micallef (unrep, 14/9/93, NSWCCA). An offence that involves pointing a loaded firearm at anyone is particularly serious when done in circumstances of aggression or as an exercise of domination: R v Do [2005] NSWCCA 183 at [25].

Syringes

Sentences for offences involving the use of syringes should deter anyone from adopting this “easy and terrifying method of imposing their will on others”: R v Hodge (unrep, 2/11/93, NSWCCA); cited in the s 33B case of R v Stone (1995) 85 A Crim R 436 at 438. Sentences should also recognise the fear instilled in victims by an offender who produces a syringe apparently filled with blood: R v Carter (unrep, 29/10/97, NSWCCA).

Glassing, broken bottles etc

An attack using a glass is serious: R v Bradford (unrep, NSWCCA, 14/2/95). So too, is the use of broken glass, which is a weapon capable of inflicting a life-threatening injury: R v Zamagias [2002] NSWCCA 17 at [14]. In a case where the victim was struck in the face with a glass during a hotel fight, and the victim’s injuries were not long-term, it was doubted that the use of a glass should be equated in seriousness with the use of a knife or revolver: R v Heron [2006] NSWCCA 215 at [54]. In Sayin v R [2008] NSWCCA 307, cited with approval in R v Miria [2009] NSWCCA 68 at [17], Howie J stated at [47]:

… “glassing”, is becoming so prevalent in licensed premises that there are moves on foot to stem the opportunity for the offence to be committed by earlier closing times and the use of plastic containers. The courts clearly must impose very severe penalties for such offenders, but of course within the limits afforded by the prescribed maximum penalty.

Premeditated or planned offence/contract violence

The degree of premeditation or planning is a relevant factor when assessing the objective seriousness of an offence: R v King (2004) 150 A Crim R 409 at [174]; Vragovic v R [2007] NSWCCA 46 at [32] (both s 33 cases). Section 21A(2)(n) provides as an aggravating factor the fact that the “offence was part of a planned or organised criminal activity”. The converse is a mitigating factor: s 21A(3)(b).

Unprovoked offence

The fact that an offence is unprovoked and unjustified is a matter to be taken into account when assessing its objective seriousness: R v Matzick [2007] NSWCCA 92 at [23]; R v Reid (2005) 155 A Crim R 428 at [25]; R v Mackey [2006] NSWCCA 254 at [14] (all s 33 cases).

Offence committed in company

It is an aggravating factor where the offence is committed in company: R v Maher (2005) 154 A Crim R 457 at [34]; s 21A(2)(e) Crimes (Sentencing Procedure) Act 1999.

The exception is where this factor is an element of the offence, for example, offences under ss 59(2), 35(1), 35(3) and 33B(2). Furthermore, it would be erroneous to take into account as an aggravating factor the commission of an offence in company where that factor would warrant a conviction for a more serious offence: R v Tran [2005] NSWCCA 35 at [17].

Vulnerable victim

Section 21A(2)(l) provides as an aggravating factor the fact “that the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant)”. The fact that the victim was a security officer is an aggravating factor pursuant to s 21A(2)(l): R v Do [2005] NSWCCA 183.

In Nowak v R (2008) 183 A Crim R 526, the judge erred in finding that it was an aggravating factor that the victim was “vulnerable in the extreme” on the basis that the victim was unarmed when struck by a man wielding a bottle. It was observed, “All victims are, to some extent at least, vulnerable. But that is not the sense in which the expression is to be understood in the present context”: at [28]. Reference was made in that case to R v Tadrosse (2005) 65 NSWLR 740, where is was said that s 21A(2)(l) “is concerned with the weakness of a particular class of victim and not with the threat posed by a particular class of offender”: at [26].

The fact that the victim was unarmed would not generally constitute an aggravating factor under s 21A(2)(l), although such vulnerability may arise from defencelessness or helplessness: Morris v R [2007] NSWCCA 127 at [15]. However, there may be greater scope for a finding of vulnerability at common law on the basis that the common law survives the introduction of s 21A (s 21A(1)(c)); see R v Porter [2008] NSWCCA 145 at [87]. In R v Esho [2001] NSWCCA 415 the court held that the fact that the applicant, who was armed with a knife, knew that the victim was defenceless, was a factor that aggravated the offence: at [142].

Commission of offence in victim’s home

The commission of the offence in the security of the victim’s home aggravates an offence: R v Pearson (2002) 137 A Crim R 419 at [90]; R v Achurch [2004] NSWCCA 180 at [33]; R v Brett [2004] NSWCCA 372 at [46]; R v Hookey [2004] NSWCCA 223 at [18]; s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999. See further the discussion in Section 21A factors “in addition to” any Act or rule of law at [11-105].

Gratuitous cruelty

Section 21A(2)(f) provides that an offence is aggravated if it involves gratuitous cruelty. Gratuitous cruelty requires more than an offence being committed without justification and causing great pain: McCullough v R [2009] NSWCCA 94 at [30]. For offences that are by their nature violent, there needs to be something more than the offender merely having no justification for causing the victim pain: McCullough v R at [30]. For instance, the factor may be present in a case of malicious wounding due to the nature and purpose of the wounding, for example, it involved torture: McCullough v R at [31].

The 3½-year-old victim in R v Olsen [2005] NSWCCA 243 was found to have 57 injuries, including intra-retinal haemorrhages and flexion extension injuries to the neck indicating that he had been severely shaken. The child was also suffering from dehydration. The injuries inflicted included bite marks and indicated that there had been a large number of forcible impacts with the child’s body. It was held that the sentencing judge correctly found that the offence involved gratuitous cruelty: at [17].

Punching and kicking a pregnant woman in the abdomen causing her foetus to miscarry constitutes gratuitous cruelty: R v King (2004) 150 A Crim R 409 at [139].

In R v Smith [2005] NSWCCA 286 it was held that the throwing of hot water onto a child did not constitute gratuitous cruelty. Latham J said at [37] that gratuitous cruelty:

… is less likely to be present where an intentional act gives rise to injuries which were contemplated by the offender as possible, but no more, as opposed to offences involving deliberate, calculated torture or where the type and degree of harm inflicted is part of the offender’s desire to degrade and humiliate the victim. Of course, it is not possible to neatly define the categories of offences in which gratuitous cruelty will feature. However, it was open to his Honour to regard this offence as lacking that factor, particularly where his Honour had found the Respondent reckless as to the harm caused by his actions.

Substantial harm

Section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 provides as an aggravating factor that “the injury, emotional harm, loss or damage caused by the offence was substantial.” The converse is a mitigating factor under s 21A(3)(a).

Since inflicting of grievous bodily harm is an element of offences under both s 35(1)–(2) and s 33(1)(b) and (2)(b), the bare fact that grievous bodily harm was caused cannot be treated as an aggravating factor of itself: R v Zoef [2005] NSWCCA 268 at [123]; R v Cramp [2004] NSWCCA 264 at [65] (s 33 cases); R v Heron [2006] NSWCCA 215 at [49]; Nowak v R (2008) 183 A Crim R 526 at [19]–[26] (s 35). However, where the extent of the victim’s injury significantly exceeds the minimum necessary to qualify as grievous bodily harm, the injury may constitute an aggravating factor: R v Zoef, above, at [123] (where the victim suffered permanent paralysis); R v Chisari [2006] NSWCCA 19 at [22] (where the victim was required to undergo surgery, had ongoing medical problems and was unable to work).

In R v Heron [2006] NSWCCA 215, it was held that the sentencing judge also erred in having regard to the potential effect of the injury by speculating as to what might have happened had first aid not been provided. The potential of the injury was not a matter which could be properly taken into account for the purposes of s 21A(2)(g). What might have occurred had timely first aid not been provided is an irrelevant consideration when applying s 21A(2)(g): at [49].

To top [50-150] Intoxication

Personal violence offences are on occasion accompanied by some level of intoxication on the part of the offender. An offender’s intoxication may constitute an aggravating factor, or it may have no impact on the sentencing exercise.

Section 21A(5AA) Crimes (Sentencing Procedure) Act 1999 abolished the common law as it applies to the relevance of an offender’s intoxication at the time of the offence. It provides that in determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor. Section 21A(6) provides that self-induced intoxication has the same meaning as it has in Pt 11A Crimes Act 1900. Section 21A(5AA) applies to the determination of a sentence for an offence whenever committed unless, before the commencement date (31 January 2014), the court has convicted the person being sentenced of the offence, or a court has accepted a plea of guilty and the plea has not been withdrawn.

Before the introduction of s 21A(5AA) an offender’s intoxication, whether by alcohol or drugs, could explain an offence but ordinarily did not mitigate the penalty: Bourke v R (2010) 199 A Crim R 38 at [26]. An acting out of character exception was acknowledged but rarely applied: Hasan v The Queen (2010) 31 VR 28 at [21], applied in GWM v R [2012] NSWCCA 240 at [82] and ZZ v R [2013] NSWCCA 83 at [110]. Section 21A(5AA) abolishes the out of character exception. It also abolishes that part of R v Fernando (1992) 76 A Crim R 58 that the High Court approved in Bugmy v The Queen (2013) 249 CLR 571 at [38], [40]. French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said at [38]: “The propositions stated in Fernando are largely directed to the significance of the circumstance that the offender was intoxicated at the time of the offence”.

Intoxication may be an aggravating factor because of the recklessness with which the offender became intoxicated or if it involves the voluntary ingestion of alcohol by a person with a history of alcohol-related violence: R v Fletcher-Jones (1994) 75 A Crim R 381 at 387; Gordon, above, at 467; Coleman, above at 327; R v Hawkins (1993) 67 A Crim R 64 at 67; R v Jerrard (1991) 56 A Crim R 297 at 301. The commission of an offence while intoxicated may also warrant greater emphasis being placed on general deterrence: R v Mitchell (2007) 177 A Crim R 94 at [29].

To top [50-160] Common mitigating factors

Certain objective mitigating factors which may arise with relative frequency in the context of personal violence offences are discussed here. For detailed discussion of mitigating factors, see Objective factors at [10-000] and Section 21A factors at [11-000].

Injury or harm not substantial

The fact that the victim’s injuries healed or were not substantial may be taken into account in the offender’s favour: R v Shauer [2000] NSWCCA 91 at [13]; s 21A(3)(a) Crimes (Sentencing Procedure) Act 1999.

Provocation

Section 21A(3)(c) Crimes (Sentencing Procedure) Act 1999 provides that it is a mitigating factor where the offender was provoked by the victim into committing the offence. In R v Ferguson [1999] NSWCCA 214 at [29], Smart AJ stated: “It is of the essence of provocation that the acts of others cause offenders to lose their self control and embark upon criminal conduct often of the utmost gravity”.

Provocation can reduce the objective criminality appreciably: R v Ferguson, above, at [29]; see for example, R v Fragoso (unrep, 24/2/94, NSWCCA). In R v Ryan (2006) 167 A Crim R 241, the fact that the offence of maliciously inflict grievous bodily harm (s 35) was triggered by what both offenders reasonably thought had been a sexual assault on one of their partners was held to be a mitigating factor under s 21A(3)(c): at [28]. On the other hand, it was held in R v Mitchell (2007) 177 A Crim R 94 at [30] that a vicious attack in retribution for alleged prior sexual abuse was “of limited mitigating value”.

The extent to which provocation constitutes a mitigating factor will depend on the relationship and proportion between the provocative conduct and the offence. In R v Buddle [2005] NSWCCA 82, Wood CJ at CL said at [11]:

While the presence of provocation was an important aspect in assessing the applicant’s objective criminality, and while it provided a motive for what might otherwise have been an incident of unexplained or random violence, it did not excuse his conduct. It is not the case that the victim of a crime can take the law into his own hands and exact physical revenge. Both personal and general deterrence therefore had a role to play in sentencing the applicant.

In some cases the offender’s conduct will be so disproportionate to the provocation that it will be open to find that there was no mitigation: R v Mendez [2002] NSWCCA 415 at [16]. In Shaw v R [2008] NSWCCA 58 at [26], it was held that “relationship tension and general tension” in the context of domestic violence offences did not constitute provocative conduct such as to amount to mitigation.