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These tables are intended to be used as a guide only. Individual cases should be read if they are to be relied upon

 

 

Wound - s35 - Prior to 27.9.2007 amendment 

s.35(a) Crimes Act 1900 (NSW):  malicious wounding

s.35(b) Crimes Act 1900 (NSW):  maliciously inflict GBH

Maximum penalty - 7 years

Note: On 14.12.2001 s.35(2) was added to create an offence of acting in company. As a result subsection (1) was added to s.35 - s.35(a) became s.35(1)(a) and s.35(b) became s.35(1)(b). No substantive change was made to these subsections.

Note: On 27.9.2007 this section was amended to read reckless wounding and reckless GBH. The maximum penalty for reckless GBH was increased to 10 years.

New tables have been commenced for offences dealt with under the newly recast section (ie offences committed subsequent to the amendments)

 

S.35 Malicious Wounding / Maliciously Inflict GBH

NameOffencePleaSentenceAppealWeaponRecordSummary

Frogley

NSWCCA

8.2.1994

s.35(a)VG

MT 23m

AT 8m

ADknife Unprovoked attack on nursing sister alone in hospital in early morning.  Wound to chest.

Fragoso

(44)

NSWCCA

24.2.1994

s.35(a)PG500h CSO

AA

3y GBB

knifenil

Attacked complainant after savagely bashed by C and friend.  C suffered large laceration to lung and liver.  Severe provocation.

Suffered psychological trauma as result of assault.

Fergus

(22)

NSWCCA

31.5.1994

s.35(a)PG

500h CSO

(+ 2m PSC)

Crown AA

12 PD

(should have been full time custody)

Knifenil

De facto declined marriage proposal.  Purchased three knives and placed in car.  Picked up de facto from station and asked for a hug.  During embrace stabbed complainant.  Also tried to strangle her.  Left her by roadside.

Remorseful.  Attempted suicide.  Good rehabilitation.

By time of appeal CSO completed.

Steeden

(23)

NSWCCA

19.8.1994

s.35(a)VG

MT 3y

AT 1y

ADknifesignificant including violence and dishonestyIntoxicated - disturbed group fishing.  Stabbed complainant in back.

Moufferige

NSWCCA

5.9.1994

s.35(b)VG

MT 1y 10m

AT 5 1/2m

(50% discount for assistance)

ADiron barlengthy but no violenceArgument with female complainant in car park. Struck C over head, causing immediate epileptic fit and cognitive impairment. On methadone which made him snap. Married with three children.  Personality problem.

Coleman

(26)

NSWCCA

20.2.1995

s.35(b)PG2y PD

Crown AA

MT 6m

AT 1y

assaultminor

Kicked friend in head as he intervened in violent argument between A and girlfriend.  Severe permanent brain damage.

Intoxicated.  Good rehabilitation.

O'Kane

(26)

NSWCCA

9.3.1995

7 x s.35(b)PG

MT 1y

AT 3y

Crown AA

MT 2y

AT 4y

assaultnot significant

Injuries inflicted on 4-5m old child over some weeks. Six fractures and injury to eye causing blindness.

History of depression and drug abuse. Never recovered from death of 4m daughter.

Leslie

(20)

NSWCCA

10.3.1995

s.35(b)

 

Sched:

PCA

Unlic driver

VG

MT 6m

AT 1y

Crown AA

MT 1y

AT 1y

carextensive including traffic and assault

While drunk drove car into group of people at party.  Serious injuries.

Alcohol problem. Post traumatic stress disorder. Brother handicapped, mother's health poor.

Clark

(21)

NSWCCA

27.3.1995

s.35(b)PG

MT 6m

AT 1y 6m

Crown AA

MT 1y

AT 1y 6m

assaultnil

Shook 2y old baby of de facto. Very serious, probably permanent injuries.

Medical condition. Much of sentence on protection.

Stanley

NSWCCA

7.4.1995

s.35(b)VG

MT 9m

AT 3m

ADassault

violence

on bond and CSO

Elbowed Complainant in face as he was running to try line in rugby league game. Fractured jaw.

Mangion

NSWCCA

25.5.1995

s.35(b)PG

MT 18m

AT 2y 6m

Crown AA

MT 3y

AT 2y

gun During family dispute fired gun at son. Paraplegic. Forced another son to take the blame (sentenced to bond). On previous occasions had threatened family with gun. Ten year delay before truth came out.

Ali

NSWCCA

27.6.1995

s.35(b)VG

MT 2y

AT 8m

ADassaultlong record, two offences for violence.Staying with female Complainant for several weeks. After drinking with C and friend C and friend in intimate position. Physically assaulted C. Next day returned and forced V and young son into car. C escaped at petrol station.

Kalache

(25)

NSWCCA

30.6.1995

s.35(b)VG

MT 4y

AT 16m

ADfirenil

Went to 17y Complainant's house with two brothers. Believed C had informed to police on another brother. C held down, doused in petrol and set alight. Extensive burns and need for life long treatment. Later tried to bribe C to withdraw evidence.

Lack of contrition.

Sinika

(68)

NSWCCA

25.9.1995

s.35(a)PG

MT 18m

AT 12m

ADknifeone minor offence

Roused neighbour at 2am one morning, stabbing him in abdomen – Retaliation for throwing of bottle of beer into A's driveway during children's party.

Not in good health.

Pitcher

NSWCCA

19.2.1996

s.35(b)PG250h CSO

Crown AA

12m PD

assault 

Punched 3y son in stomach forcing him against wall and causing injury to bowel and spine. Life-threatening injuries.

Good subjectives.

Hatch

NSWCCA

21.2.1996

s.35(b)PG250h CSO

Crown AA

MT 6m

AT 12m

steel rodnil

Poked steel rod through window of car causing injury to eye of daughter's boyfriend. Eye had to be removed. Provocation. C involved in criminal activity.

Good character.

Kurtic

(1996) 85 A Crim R 57

s.35(b)VG5y GBBConviction ADtomahawk 

Attacked neighbour with tomahawk. A had been annoying complainant over period of months. Fractured skull. Self defence rejected.

Suffering from mental illness.

Pedersen

NSWCCA

5.3.1996

s.35(a)PG3y PDCrown ADknife 

Driving altercation resulted in stabbing. Provocation. Genuine apprehension for safety because of earlier similar incident.

Strong subjective factors.

Rose

(19)

NSWCCA

5.3.1996

s.35(b)PG12m PD

Crown AA

3y PD

assaultnil

Three men attacked male stranger. Injuries could have been fatal. Unprovoked attack. Returned to check condition of Complainant.

Contrition, excellent prospects of rehabilitation. Not the main instigator.

Hussein

(20)

NSWCCA

25.3.1996

s.35(b)PG3y GBB

Crown AD

Inadequate but Court exercised discretion.

assaultnil

Kicked mother's de facto husband in face. Trained in martial arts and boxing. Fractured skull.

Upset over breakdown of parent's marriage. Excellent subjectives.

Grimmett

NSWCCA

1.4.1996

s.35(b)VG

MT 18m

AT 2y 6m

Conviction ADassaultviolenceAssaulted 19m child of de facto causing permanent brain damage and damage to ear.

Hubber

NSWCCA

29.5.1996

s.35(b)PG

MT 2y

AT 8m

AD

high but in range

assaultminorFound Complainant A's car. During argument punched, stomped and kicked C in the face many times. Intoxicated. Out of character.

Aala

NSWCCA

30.5.1996

s.35(b)

VG -

at trial attempt murder

MT 13m

AT 21m

(+8m PSC)

Crown ADknife Domestic dispute with wife. Multiple stab wounds. Not pre-meditated. In state of turmoil.

Aroutsidis

NSWCCA

27.8.1996

s.35(a)VG

MT 2y 6m

AT 10m

ADassaultmotor offencesWith co-offender assaulted Complainant when he answered door to home. Smashed implement in C's face, then attacked him with coffee table. Used smashed pieces of coffee table to continue assault.

K Williams

(17)

 

P Williams

(44)

NSWCCA

27.8.1996

s.35(b)

VG

 

 

VG

MT 8m

AT 8m

 

MT 10m

AT 6m

ADassault.

AVO

 

 

Minor, two assaults

Father and Son assaulted neighbour late one night in front yard – C did not approve of relationship between daughter and KW - Breached AVO – Assault initiated by  KW - fractured cheek.

Sandeman

 

 

 

Hilditch

NSWCCA

4.9.1996

s.35(b)VG

MT 2y 3m

AT 9m

 

 

MT 2y 3m

AT 9m

AA

MT 1y 9m

AT 7m

 

AD

assault and water pipe 

Fight in backyard after drinking with Complainant – C kicked, beaten with water pipe and head forced into brick wall. Fractured skull and cheek.

Both had chronic alcohol problems.

Drysdale

NSWCCA

24.10.1996

s.35(a)VG

MT 15m

AT 15m

ADknifedisregardedAltercation between two boys broken up by Complainant. Blows exchanged between C and one boy's father. C stabbed number of times in leg, hand, abdominal region and neck. Jury rejected self defence.

Crowhurst

(18)

NSW CCA

30.10.1996

s.35(b)PG

MT 21m

AT 16m

(reduced for assistance)

AD

sentence severe and towards top of the range

assaultnil

Complainant assaulted by three youths whose cars had been earlier pelted with eggs. C wrong person in wrong place. Kicked C twice in head, and jumped on face with both feet. Multiple fractures.

Intoxicated. Offered to give evidence against co-offender.

Kennedy

(34)

NSWCCA

15.11.1996

s.35(b)VG

MT 12m

AT 3y

ADassaultincluded assaultsKicked publican in face as he was removing A's de facto wife from hotel. Broken jaw.

Henry

(17)

NSWCCA

26.11.1996

s.35(b)PG

MT 2y

AT 18m

ADhammer

previous assaults on victim

on probation and recog

Beat de facto when she tried to leave him - hit numerous times around legs and arms as she protected head.

Aboriginal.

Woodhouse

NSWCCA

20.12.1996

s.35(a)PG

MT 1y 9m

AT 7m

ADknifeprevious assaultsInvolved in scuffles in hotel. Went home then returned with knife. Further confrontations - stabbed C several times in arm.

Raindow

(22)

NSWCCA

20.12.1996

s.35(b)PG

MT 3y

AT 2y

AA

MT 2y

AT 18m

hot iron Struck 21m child in head and applied hot steam iron to abdomen and leg. Annoyed at crying. Burns first and second degree. Unpremeditated.

Ho

(22)

NSWCCA

28.2.1997

s.35(b)PG

MT 9m

AT 9m

ADassaultinsignificantLeft club with intention to fight - instigated fight with Complainant who was punched and kicked - serious head injuries.

Haitoua

(20)

NSWCCA

9.4.1997

s.35(a)PG500h CSO

Crown AA

MT 12m

AT 12m

knifealcohol related offences

Ejected from club and altercation ensued - friend tried to restrain A and stabbed twice in chest. Lung collapsed.

Alcohol problems. Good prospects of rehabilitation.

Martino

(32)

NSWCCA

11.4.1997

s.35(b)PG

MT 2y 8m

AT 8m

AA

MT 18m

AT 6m

baseball batnilAccused Complainant of affair with wife and assaulted with baseball bat 20 times. Fractured limbs.

Doolan

(23)

NSWCCA

7.5.1997

s.35(b)PG

MT 2y

AT 3y

ADassaultextensive: dishonesty, driving, assaults

Drinking in park with group of people. Pulled apart fighting females by hair, then became aggressive. Pulled and grabbed Complainant by hair, pulled him to ground, kicked and stomped on head. Fractured jaw and zygoma.

Sexually assaulted by C when younger.

Kaadi

(29)

NSWCCA

7.5.1997

s.35(a)VG

FT 9m

(cumulative to existing sentence)

Crown AA

MT 1y 6m

AT 1y

(cumulative to existing sentence)

knife

violence, including AR

on parole and bail

Altercation initiated by Complainant after A jumped queue at Methadone clinic. A approached C in car park to have it out. C stabbed in abdomen.

Addicted to heroin.

Tracey

(31)

NSWCCA

7.7.1997

s.35(a)PG

MT 2y

AT 8m

ADiron baron recog for AOABHAttacked Complainant with iron bar when he answered the back door of his house. Head wounds. Claimed C had molested friend's 13y step daughter.

McAdam

NSWCCA

29.9.1997

s.35(a)PG

MT 2y 6m

AT 18m

ADknife.considerable including 2 x mansl

Complainant came to flat asking for light. Angry at being woken A took knife to door. C insulting and aggressive. C stabbed causing serious injury to eye.

Some attempts made at rehabilitation.

Service

NSWCCA

3.11.1997

s.35(b)PG

MT 12m

AT 3m

ADcrowbar Complainant attended home of co-offender demanding payment of debt. Arranged for A and others to be present when C returned. C attacked by four persons, A using crowbar.

Rowe

NSWCCA

10.12.1997

s.35(a)VG

MT 1y 355d

AT 1y 10d

ADknifeten counts of assaultAttack on bouncer who removed A from hotel. C stabbed in lower abdomen and under armpit, punched and grabbed by throat.

Malass

NSWCCA

3.3.1998

s.35(b)VG

MT 18m

AT 18m

ADwoodserious driving offencesBrawl involving 30-40 people. Police officer struck in face with wood. Broken nose and loss of sense of smell.

GNW

(32)

NSWCCA

2.3.1998

s.35(a)PG

MT 3y 9m

AT 1y 3m

AA

MT 3y

AT 1y

knifedishonestyCut throat of friend's girlfriend while driving - external jugular vein severed. Intoxicated. Acted "wantonly".

Jamieson

(21)

NSWCCA

24.3.1998

s.35(b)VG

MT 15m

AT 21m

Crown AA

MT 3y

AT 2y

assault2 x assault on recog and bail

Attacked frail male in his bed. No motive. Intoxicated.

Tragic background.

Willet

(25)

NSWCCA

21.8.1998

s.35(a)PG

MT 15m

AT 5m

ADglassnil

Struck female with glass after altercation on dance floor. Glass broke causing injury to eye and cheek.

Very atypical behaviour. Excellent record with navy. Prior to offence had been at sea 10 days, sleep deprived and influenced by hay fever medication. Excellent character.

Banks

(21)

NSWCCA

17.8.1998

s.35(b)VG

MT 12m

AT 12m

ADpunching and kickingnil violence but gaol for other offences, mostly carsArguing with female in caravan park. Male from neighbouring caravan came out to complain. 'King hit' male, then kicked him in stomach, head and back while on the ground. Fractured jaw and chipped teeth. Self defence rejected.

Hall

NSWCCA

11.11.1998

s.35(a)

 

Sched:

2 x AOABH

2 x assault

PG

MT 2y

AT 1y 6m

(1m PSC)

ADassault and golf stick Intoxicated - became aggressive and abusive to students on beach - without provocation head butted and punched two student - kneed third student in groin, struck him around head and body with golf stick, chased him and pushed broken stick into stomach causing lacerations to hands - struck fourth with golf stick.

Campbell

(20)

[1999] NSWCCA 76

s.35(b)

 

Sched:

Drive unreg MV

Drive unins MV

PG

MT 1y

AT 2y

AA

MT 2m 25d

AT 18m

steel rod 

After fight with complainant took a lift in same car. Repeatedly struck C on head with steel rod in car, causing fractures and lacerations. Both intoxicated

Rehabilitation, contrition

Greiss

(36)

[1999] NSWCCA 230

s.35(a)PG400h CSO

Crown AA

2y 6m

PD

ScrewdriverNil

Assaulted motorist during argument about U-turn – Head butted and punched complainant then stabbed with small screwdriver

Genuine`` remorse – Delay – Care for mother

King

(22)

[1999] NSWCCA 251

s.35(a)

s.35(b)

VG

Total effective sentence:

MT 3y 9m

AT 6m

AA

Total effective sentence:

MT 3y

AT 15m

Bottle

House brick

Violence and assault – breached bond and paroleFirst offence committed during riot – Hit male complainant with bottle once – Subsequent ongoing conflict and confrontation – 16m later threw house brick and complainant and friends – Struck one male causing serious head injuries

Cox

[1999] NSWCCA 254

s.35(a)PG

MT 12m

AT 2y 6m

ADHunting knifeInsignificant

Dysfunctional platonic relationship with complainant characterised by mutual violence – Serious alcohol problems – While intoxicated stabbed complainant in stomach

Psychological problems – Troubled background

France

(19)

[1999] NSWCCA 428

s.35(a)PG

MT 2y 6m

AT 2y 6m

AA

MT 1y 9m

AT 1y 9m

struck victimlong record but no gaol.

Created disturbance at public telephone. Started altercation with passer-by who asked him to desist and struck him on temple.

Voluntarily gave self up to police - drug and alcohol addiction.

Kama

(17)

(2000) 110 A Crim R 47

s.35(b)PG

MT 9m

AT 18m

PD

Crown AA

MT 2y

AT 1y

PD

punching and stomping on headnil

Viciously assaulted male significantly smaller in size. Attack continued after Complainant defenceless on ground. Permanent brain damage.

Youth and previous good character.

Toomalati

(28)

[2000] NSWCCA 105

 

s.35(b)PG3y GBB

Crown AD

(Truly exceptional case)

Assault and stabbingthree convictions for assault - on recog at time of offence

Punched 17y female around face and stabbed her with keys causing injury to eye. Angered over Complainant's with husband.

Single mother with four children. Violent relationship with husband. Suffers depression and attempted suicide several occasions. Support of family. Apologised to C.

Towers

[2000] NSWSC 420

Grove J

s.35(a)PG

3y GBB

(10mths PSC)

 piece of glasson recog for assault at time of offence

Originally charged with murder. During drinking binge stabbed Complainant with broken glass. C killed by independent stab wounds suffered at hands on unknown assailant.

Aboriginal, low intelligence, matter could have been dealt with in L.Ct.

Magrin

 

 

 

Watson

[2000] NSWCCA 346

Acc. to s.35(b)

 

 

 

s.35(b)

PG

 

 

 

VG

16m

NPP 12m

(+ 52d PSC)

 

12m PD

Crown AD

 

 

Crown AD

baseball batnilAssisted perpetrator in serious assault on complainant for payment. GM involved in planning and negotiating - GW drove assailant to and from scene of offence but not present during offence. Did not intend or expect severity of assault (loss of eye and brain damage).

Berry

(31)

[2000] NSWCCA 451

s.35(b)PG

2y 6m

NPP 6m

PD

Crown AA

18m

NPP 9m

carno prior criminal or traffic convictions

Drove motor car at estranged de facto, deliberating swerving on to wrong side of road and increasing speed to 50 kph. Reckless and indifferent to consequences.

Good subjective features.

Scott

(28)

[2000] NSWCCA 535

s.35(a)PG

4y 4m

NPP 2y 6m

ADknifenil

Attacked female flatmate with knife around head and neck. Resisted attempts of other flatmates to pull him of victim.

Out of character.

Carpenter

(52)

[2001] NSWCCA 87

s.35(a)PG

4y 10m

NPP 2y 10m

ADknifelengthyStabbed stranger in stomach on street - no provocation - intoxicated.

Piccin

(42)

[2001] NSWCCA 323

s.35(a)VG2y GBBADknifenil

Stabbed teenage ex-boyfriend when he broke off relationship

Mother of 3 children. Self-sufficient. Victim of fraud resulting in loss of property and business.

Acquitted of stalking on appeal – appeal seeking to have no conviction recorded.

Sloane

(29)

(2001) 126 A Crim R 188

s.35(b)

 

Sched:

2 x assault

VG

2y 11m

NPP 2y

PD

(+65d PSC)

Crown AD

Sentence inadequate but discretion exercised

assaultrecord

Off duty police officer approached group of drunken males outside hotel - showed group his badge - scuffle developed and police officer kicked while on ground - serious injuries.

Neglected background - evidence of rehabilitation.

Smith

[2001] NSWCCA 420

s.35(b)

 

Sched:

breach of ADVO

PG

(20%)

4y

NPP 3y

AA

4y

NPP 2y

assault 

Assaulted estranged wife in driveway of her parents' house. Bashed head into ground, forced her against steel mesh fence and forced her inside, bashing her head against floor. Armed with knives.

Aboriginal - good work history - protective custody because worked as prison officer.

Sako

(25)

 

 

 

Esho

(24)

 

[2001] NSWCCA 415

s.35(b)

 

 

 

 

s.35(b)

s.93C

VG – at trial for s.33

5y

NPP 3y 9m

 

 

 

6y 8m

NPP 5y

(concurrent)

AD

 

 

 

 

AD

Assault

record involving minor violence

 

Minor violence

Involved in assault on off duty police officer by 10-12 men outside hotel. Officer fatally stabbed. Accessorial liability. Knew victim was a police officer and defenceless and aware knives had been used – S became involved after fatal stabbing when heard brother had been stabbed – E leading role in assault

Iraqi.

Bett

(20)

[2001] NSWCCA 482

s.35(b)PG

3y

NPP 12m

PD

Crown AA

3y

NPP 2y 3m

PD

assaultnil

Took 62y male with walking stick by throat and shook him – punched in face several times and taken in headlock – thrown to ground, causing back of head to strike kerb - Complainant lost sight in right eye and other injuries.

Voluntary surrender to the police.

Reid

(27)

[2001] NSWSC 1084

Bell J

s.35(b)

PG

(15% - but see facts)

3y 3m

NPP 1y 9m

 assaultlengthy

Assisted co-offender in assault on male acquaintance - Kicked Complainant in head once - Helped put C in dumpster - C subsequently set alight by co-offender and died.

Aboriginal - deprived and traumatic childhood - alcoholic - assistance to authorities - protection - history of self harm and psychiatric disorder

Total discount – 35%

Guivarra

(30)

[2002] NSWCCA 69

s.35(a)PGFT 2y suspendedCrown ADgolf club and knifeassaultAssaulted lover of former girlfriend. Complainant hit with golf club and stabbed in abdomen.

Galati

(21)

[2002] NSWCCA 366

s.35(b)

 

Sched:

2 x possess prohibited drugs

PG

3y

NPP 12m

PD

Crown AA

3y PD

assaultminor

Assaulted stranger outside hotel - Unprovoked - Karate kick to head - Serious consequences

Voluntarily surrendered next day - Genuine remorse - Evidence of rehabilitation - Lengthy delay

Brownlow

(24)

[2002] NSWCCA 404

2 x s.35(a)

PG

(25%)

15m

NPP 5m

Crown AA

2y 11m

NPP 11m

macheteminor

Attended home of ex-de facto with 4 others armed with machete seeking return of money owed by de facto - In subsequent struggle male seriously injured on elbow and co-offender cut on ear - Planned attack although wounding reckless

Difficult personal history resulting in early drug abuse - Less than average intelligence - Evidence of rehabilitation

Mendez

(23)

[2002] NSWCCA 415

s.35(b)

PG

(20%)

4y

NPP 2y 3m

ADassault with heavy objectViolence - bail

Female complainant approached house of ex-husband calling out and intoxicated - Swung heavy object at C's face then chased and continued assault - Serious fractures to face

Violent and difficult childhood - Need for psychiatric counselling.

C Van Tran

 

H Van Tran

 

(2002) 134 A Crim R 577

NSWCCA

s.35(b)

 

Sched:

s.35(b)

PG

(25%)

4y

NPP 3y

ADshootingno detailDrove past complainant's home - Shot at the C and another male as they sat outside their home – revenge for being shot at by C.

McKay

(37)

[2003] NSWCCA 32

s.35(b)PG

3y

NPP 18m

ADassault2 x assault police

During argument with de facto wife placed her in head lock and punched her in face - Caused broken cheek and eye socket - Took C to hospital

Upset by recent death of father - Genuine remorse - Conduct unusual

Morrison

(22)

[2003] NSWCCA 89

s.35(b)

 

Sched:

Mal damage to property

PG

(17%)

See [30]

5y

NPP 3y 4m

ADassaultassaults - breached bond and requirement to stay away from hotel

Assaulted Complainant outside hotel - elbowed in face - kicked while unconscious on ground several times - head butted glass window of shop - serious brain damage

Unfortunate and neglected childhood - sexually abused

Takau

(22)

[2003] NSWCCA 181

s.35(b)

PG

(25%)

4y

NPP 2y 9m

AA

4y

NPP 2y

AssaultPrior convictions – no full time prison

With group of males punched male acquaintance to ground – stomped on face 6-7 times

Intoxicated – evidence of good character

D.S.W.

(16)

[2003] NSWCCA 322

s.35(b)

VG

(see facts)

4y

NPP 2y 6m

Crown ADAssaultAssault – breached bond

Assaulted male in street - Deliberately and forcefully jumped on head more than twice – Caused serious impairment

Acquitted at trial of more serious offence – Offer to plea guilty rejected by Crown – entitled to some discount

Troublesome history of violence – Aboriginal – Intoxicated – Abuse of alcohol and drugs – No remorse

Mako

(25)

[2004] NSWCCA 90

s.35(b)

PG

(see facts)

3y

NPP 2y

AA (technical ground only)

3y

NPP 2y

knifeAssault, AOABH

Cut throat of brother's girlfriend after argument with brother.

Discount for guilty plea not quantified but plea entered at earliest opportunity – see [27]

Westerman

(27)

[2004] NSWCCA 161

s.35(b)

 

Sched:
AOABH

PG

(20% on appeal)

7y

NPP 5y

AA

4y

NPP 3y

AssaultDishonesty and driving – no violence

Extensive and severe beating of 5y son of de facto – injuries to head and face, arms and body – AOABH involved kick to child's lower back – Not isolated incidents

Not worst case

TR

(16)

[2004] NSWCCA 187

s.35(b)PG

3y 6m

NPP 1y 8m

ADAssaultNil

Group assault on male complainant – Used heavy chain – C kicked, punched and head stomped – Serious injuries – Reaction to racial slur

Dysfunctional and abusive childhood – Psychological problems – Evidence of rehabilitation – Delay - Remorse

Davis

[2004] NSWCCA 281

2 x s.35(b)PG

4y 8m

NPP 4y

AA

4y 7m

NPP 3y 5m

Not statedLengthy, inc traffic and violence

First offence resulted in very serious injuries, probably permanent – Totality – Few facts

Aboriginal – Very limited prospect for rehabilitation

Franklin

[2005] NSWCCA 24

s.35(b)

PG

(25%)

See [36]

2y 6m

NPP 1y 4m

ADPunching and chair legTwo previous assaultsFight with girlfriend's ex-partner – Fight initiated by victim – Victim punched unconscious

Williams

(31)

[2005] NSWCCA 14

s35(b)

PG

(25%)

See [24]

3y

NPP 1y 6m

ADDead branchNil

Assault on step-father at family wedding over allegation he had sexually assaulted offender's sister when 9y – armed with mattock and axe but taken from him – punched V and then attacked with tree branch – skull fracture with bleeding and swelling to brain

Studying – marijuana – schizophrenia

Tran

(20)

[2005] NSWCCA 35

s.35(a)PG

18m

NPP 6m

ADKnifeNilBecame involved in assault on 16y female – Co-offender used knife – Least culpability

Ngo

(22)

[2005] NSWCCA 107

s.35(1)(a)

PG

(25%)

3y PD

AA

2y

NPP 1y 3m PD

CleaverMinor

Vietnamese went with friends to club to watch soccer – argument developed with rival Chinese group – chairs used – offender's group outnumbered, so went and got two cleavers and struck V – left scene

Good character and employment – no current drug problems – stable relationship – above average intelligence

Mauri

(38)

[2005] NSWCCA 272

s.35(1)(a)VG

4y

NPP 9m

AA

3y

NPP 9m

GlassRecord for violence – no impris – breached bond

During argument in hotel struck male stranger in face with glass – glass broke – element of provocation and self defence – did not consciously use glass

Intoxicated

Smith

(27)

[2005] NSWCCA 286

s 35(1)(b)PG

10m

NPP 5m

Crown ADHot waterNone stated

Facts unclear - poured hot water on partner's 6y son in bath, permanently scarring his legs – failure to get medical assistance – hot water not a weapon within s 21A(2)(c) – exercise discretion not to intervene

Average intelligence – finished high school and child care course – no drug issues

Otway

[2005] NSWCCA 352

s.35(1)(b)

PG

(22%)

2y 4m

NPP 1y 9m

AA

2y 4m

NPP 1y 4m 23d

(immed release)

KnifeMostly drug offences

During argument with male acquaintance on street punched complainant in face and stabbed in stomach with knife – voluntarily surrendered to police

Drug addiction

Morris

[2006] NSWCCA 199

s.35(1)(a)

PG

(25%)

3y

NPP 1y 8m

AA

2y 3m

NPP 1y 2m

KnifeNot significant

Stabbing during argument with flat mate – Momentary rage

Good character – good prospects of rehabilitation – HIV – delay

Ilioski

[2006] NSWCCA 164

s.35(1)(a)VG

4y 6m

NPP 2y 6m

ADKnifeNil

During brawl outside nightclub attacked male with knife – slashed to throat requiring immediate surgery – stabbed in chest

Convicted after four trials

Kanengele-Yondjo

(39)

[2006] NSWCCA 354

2 x s.35(1)(b)

PG

(15%)

12y

NPP 9y

ADHIVDishonestyCongolese male infected two women with HIV during intercourse – Aware of medical condition but failed to warn either partner – worst case

O'Sullivan

(33)

[2006] NSWCCA 368

s.35(1)(b)

PG

(12.5%)

4y 8m

NPP 3y 6m

ADNo weaponPriors for violence – breached bondProlonged and unprovoked attack on fellow resident in boarding house – serious brain injuries

Douglas

(29)

[2007] NSWCCA 31

s.35(1)(a)

s.35(1)(b)

PG

(15%)

 

VG

20m

NPP 12m

Suspended

Crown AA

20m

NPP 12m

PD

Metal poleAssaults – breached CSO

Offered to plead guilty to second offence – convicted as alternative offence at trial for s.33

Assaulted 58y male with metal pole – also struck step son – history of animosity between families – element of provocation

Andrews

(34)

[2007] NSWCCA 68

35(1)(a)

PG

(25%)

2y 3m

NPP 20m

ADBottleViolence and dishonesty – previously assaulted victim

Hit ex de facto with bottle of rum and beer – kicked side of face

Significant substance abuse – broken home

Morris

(39)

[2007] NSWCCA 127

s.35(1)(a)VG

7y

NPP 4y 6m

AA

5y

NPP 3y 6m

KnifeExtensive – including violence – breached paroleAttacked male stopped on street at night to be sick – stabbed with knife several times – injuries not serious

Davies

(28)

[2007] NSWCCA 178

s.35(1)(a)

PG

(16%)

10m SuspendedCrown ADBeer glassOn recog for High range PCA

Intervened in argument between two old school friends while drinking at club – Hit victim in eye area with beer glass.

Low objective criminality.

Nowak

(21)

(2008) 183 A Crim R 526

s.35(1)(b)

PG

(25%)

4y

NPP 12m

ADBottle of vodkaNil

Asked to leave wedding reception – smashed bottle of vodka across face of V – serious injuries

Good character – intoxicated – genuine remorse

Wright

[2008] NSWCCA 282

s.35(1)(b)

VG

(trial for s.33)

6y

NPP 4y

ADBeer glassNumber of similar offences.  On bail.

Hit victim in face with glass at pub – rivalry over female acquaintance – high end objective seriousness.

Continued disregard for the law – number of previous offences involving glass as weapon.

Sayin

(41)

[2008] NSWCCA 307

s.35(1)(b)

PG

(15%)

5y

NPP 3y

AA

3y 9m

NPP 2y 3m

Beer glassAOABH

Hit victim in face at theatre show at club after becoming irritated at victim talking.

SJ erroneously found intent to cause harm.

Zahoros

(64)

[2008] NSWCCA 336

s.35(1)(a)

PG

(20%)

5y 2m

NPP 3y 10m

AA

4y

NPP 2y 9m

KnifeNil

Stabbed victim in arm and abdomen following argument at restaurant - offence not at upper end of range.

Mental illness – schizophrenia.

 

Wilson

[2009] NSWCCA 73

s.35(1)(b)

 

Sched:

Assault

PG

(25%)

2y 3m

NPP 12m

Periodic Detention

ADBeer glassIrrelevantHit victim in face with beer glass while intoxicated at club.

Cryer

[2010] NSWCCA 18

s.35(1)(b)VG

5y 6m

NPP 4y 1m 16d

ADNo weaponNot indicated.Punched victim twice in head after victim made threat to A – victim fell backwards and suffered very serious brain injury.

Mitchell

(29)

[2010] NSWCCA 145

s.35(1)(b)

PG

(25%)

3y

NPP 2y

ADNo weaponDriving, AOABH

Punched victim (cousin's partner) 4 times after victim had assaulted A's cousin – victim fell backwards - suffered brain swelling, haemorrhage, loss of taste and smell – unprovoked assault.

Strong family ties – hard worker – supportive family – good rehabilitation.

Walker

(38 – 50)

[2016] NSWCCA 213

s.35(1)(b)PG
(25%)

2y

NPP 12m

ADPunchAssaults

(2003) – absconded after pleading guilty – unprovoked punch to head of stranger outside hotel at night causing fractured jaw

No reduction for delay but took into account evidence of rehabilitation – daughter with medical condition

--------------------------------------

 

S.35(2) Malicious Wounding / Maliciously Inflict GBH

In Company

s.35(2) Crimes Act 1900 (NSW)

Maximum penalty – 10 years

Note: On 27.9.2007 this section was amended to read reckless wounding and reckless GBH. The maximum penalty for reckless GBH in company was increased to 14 years. New tables have been commenced for offences dealt with under the newly recast section (ie offences committed subsequent to the amendments) 

NameOffencePleaSentenceAppealWeaponRecordSummary

Main

(19)

 

 

 

 

 

Turner

(18)

 

[2003] NSWCCA 268

s.35(2) (wound)

 

Sched:

Mal damage MV

 

s.35(2) (wound)

 

Sched

Mal damage MV

PG

 

 

 

 

 

 

PG

18m – suspended

 

 

 

 

 

18m – suspended

(4m PSC)

Crown AD

 

 

 

 

 

 

Crown AD

Wheel brace and screwdrivers

Priors – breached conditional liberty

 

 

 

 

 

Priors including agg robbery – breached conditional liberty

Attacked older man using wheel brace and screwdrivers – stabbed with screwdriver - intoxicated

Evidence of rehabilitation

Tran

(24)

[2004] NSWCCA 366

 

Co-offender - PAN

s.35(2) (wound)

AOABH

PG

(toward top of range)

2y

NPP 12m

(6m concurrent)

AA

1y 3m

NPP 9m

KnifeNil

Female assaulted male acquaintance at bus stop – argument over money owed to offender's de facto partner – purchased knife and returned - Victim injured by knife in continued struggle with offender and de facto

Vietnamese with tragic history

Pan

(31)

[2005] NSWCCA 114

 

Co-offender: TRAN

s.35(2) (wound)

PG

(12%)

See [26]

21m

NPP 12m

AD Lengthy – violent offencesArgument with former employee at bus stop – struggle continued some time later after co-offender purchased knife – Victim injured by knife – offender struck V and bit arm

Do

(21)

[2005] NSWCCA 183

s.35(2) (GBH)

Use firearm

PG

(25-30%)

2y 6m

NPP 12m

(12m concurrent)

Crown AA

4y

NPP 2y 6m

.22 calibre pistolNil

Ejected from nightclub – returned in group and threatened security guards with pistol – one guard shot in leg during struggle - intoxicated

Out of character – genuine remorse

Formosa

(27)

[2005] NSWCCA 363

s.35(2) (GBH)

PG

(20%)

4y

NPP 18m

ADMetal chair and metal poleNil

Attended residence of ex partner in company with two others – with one offender assaulted male occupant with metal chair and pole – serious injuries

Delay – offence out of character – some mental issues at time of offence

Ryan

(24)

 

 

 

McPherson

(23)

 

(2006) 167 A Crim R 241

NSWCCA

s.35(2) (GBH)

 

Sched:

3 offences

 

s.35(2) (GBH)

PG

(25%)

 

 

 

PG

(25%)

20m

suspended

 

 

 

20m

suspended

Crown AA

15m

NPP 6m

 

 

Crown AA

15m

NPP 6m

Cricket bat / knife

Priors

 

 

 

 

Priors including violence

R told by girlfriend she had been sexually harassed by Victim night before – attended Victim's house and punched him to face – pursued Victim armed with knife – both R and M punched, kicked and assaulted Victim with cricket bat – threatened with knife – injuries at low end of scale – intoxicated – degree of planning

R – instigator – remorse – good prospects of rehabilitation

M – record suggests resorts to violence

GS

(16)

[2006] NSWCCA 410

s.35(2)PG

2y

NPP 9m

suspended

ADknifenil

Unprovoked stabbing of stranger outside house – four wounds – wasted on drugs and alcohol – in company of friend who was unaware of offence – spontaneous offence caused by intoxicated paranoia

Difficult childhood – sever physiological problems – drug and alcohol abuse – remorse – evidence of rehabilitation

Holden

(29)

[2008] NSWCCA 100

s.35(2)

 

Sched:

AOABH

Assault

PG

(20%)

4y

NPP 2y 6m

ADAssaultLengthy record – breached bondInvolved in group assault on male flatmate – attempted to punch V next day at hotel – later in afternoon forced entry into house with friends and bashed victim – fractures to hand and face – kicking and punching - ringleader

Duffy

(22)

 

Mangan

(20)

 

[2009] NSWCCA 304

s.35(2)

 

 

s.35(2)

PG

(20%)

 

PG

(20%)

22m

NPP 15m

 

4y

NPP 2y 6m

AD

 

 

AD

Assault

Nil violence

 

 

No prior custody

Victim in relationship with M's mother - both offenders assaulted victim after hearing of dispute between victim and M's mother – permanent brain damage – sustained attack with piece of wood – assault started by M as primary offender

 

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