R v. Mackay [2003] NSWCCA 87

R v. Mackay [2003] NSWCCA 87

The head sentence of three years for maliciously inflicting grievous bodily harm was excessive because it did not sufficiently reflect the applicant's powerful subjective case, including previous good character, early guilty plea, remorse and the isolated nature of the offending, and because the sentencing approach treating full time custody as avoidable only in exceptional circumstances was not helpful. However, the objective seriousness of the offending still required full time custody, the appropriate substituted head sentence was two years and three months, and the ten-month non-parole period and the concurrent sentence for assault occasioning actual bodily harm were within the...

Jurisdiction
Australia
Judgment Date
25 March 2003
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal against the sentence for assault occasioning actual bodily harm dismissed; appeal against the head sentence for maliciously inflicting grievous bodily harm allowed and sentence substituted.
Legal Topics
['maliciously Inflicting Grievous Bodily Harm' 'assault Occasioning Actual Bodily Harm' 'manifest Excess' 'non Parole Period' 'guilty Plea' 'subjective Circumstances']
['criminal Law' 'sentencing' 'criminal Appeals'] ['maliciously Inflicting Grievous Bodily Harm' 'assault Occasioning Actual Bodily Harm' 'manifest Excess' 'non Parole Period' 'guilty Plea' 'subjective Circumstances']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred by proceeding on the Crown's composite statement of facts without making specific findings where the Crown and applicant disagreed or diverged." "Whether insufficient weight was given to background circumstances, including the victim's conduct antecedent to the incident." "Whether the sentencing judge had insufficient regard to the applicant's lack of intent when assessing objective seriousness." 'Whether the judge wrongly approached the matter as requiring exceptional circumstances to avoid full time custody.' 'Whether the head sentence of three years for maliciously inflicting grievous bodily harm was manifestly excessive.' 'Whether the non-parole period of ten months and the concurrent sentence for assault occasioning actual bodily harm should be disturbed.']

Ratio Decidendi

The head sentence of three years for maliciously inflicting grievous bodily harm was excessive because it did not sufficiently reflect the applicant's powerful subjective case, including previous good character, early guilty plea, remorse and the isolated nature of the offending, and because the sentencing approach treating full time custody as avoidable only in exceptional circumstances was not helpful. However, the objective seriousness of the offending still required full time custody, the appropriate substituted head sentence was two years and three months, and the ten-month non-parole period and the concurrent sentence for assault occasioning actual bodily harm were within the...

Court Disposition

Leave to appeal granted; appeal against the sentence for assault occasioning actual bodily harm dismissed; appeal against the head sentence for maliciously inflicting grievous bodily harm allowed and sentence substituted.

Orders

  • ['Leave to appeal be granted.' 'Appeal against the sentence for the offence of assault occasioning actual bodily harm be dismissed.' 'Appeal against head sentence of three years in respect of the offence of maliciously inflict grievous bodily harm allowed and that sentence be set aside.' 'In lieu thereof, a sentence...