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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 - Post 27.9.2007 amendment

Section 35(1) Recklessly cause GBH in Company

s.35(1) Crimes Act 1900 (NSW) – 14y

Standard non-parole period (where conviction entered or guilty plea accepted on or after 1.1.2008) – 5 years

This amended section commenced 27.9.2007 

NameOffencePleaSentenceAppealWeaponRecordSummary

Farrawell-Smith

(23)

[2010] NSWCCA 144

s.35(1)

 

s.35(3)

PG (15%)

 

PG (25%)

 

See facts

20m (suspended)

 

12m (suspended)

Crown AD

(in exercise of discretion)

ShovelOffences including assault – breached conditional liberty

SNPP – 5 years

Approached group of youths with several other offenders with intention to fight – two victims assaulted by co-offender with shovel – bashed to head – another co-offender angered by earlier confrontation

Supporting partner and child – remorse – good prospects of rehabilitation

Assist - 40-50% combined discount

 

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Wound - s35 - Post 27.9.2007 amendment

Section 35(2) Recklessly Cause GBH

s.35(2) Crimes Act 1900 (NSW) - 10y
Standard non-parole period (where conviction entered or guilty plea accepted on or after 1.1.2008) - 4 years

This amended section commenced 27.9.2007

NameOffencePleaSentenceAppealWeaponRecordSummary

Thawer

(33)

[2009] NSWCCA 158

s.35(2)

PG

(15% on appeal)

16m suspended sentence

Crown AA

3y

NPP 16m

KnifeNil

SNPP – 4 years

Resident of Wesley Mission stabbed another resident during argument – three stab wounds to abdomen – excessive response to self defence and provocation

Mental condition.

Offence "in mid-range, somewhere towards the lower end": at [42].

Gillon

(37)

[2009] NSWCCA 277

s. 35(2)

PG

(25%)

4y

NPP 3y

AD Lengthy.  Assault, violence.

SNPP – 4 years

Assaulted victim after victim hit A's cousin – victim and A's cousin in defacto relationship – A kicked and punched V whilst on ground – various injuries including fractured jaw, nose and ribs.

Mid-range offence.

Aboriginal background.

Spooner

(18)

[2009] NSWCCA 247

s. 35(2)

PG

(25%)

4y

NPP 1y 10m

ADGlassNil

SNPP – 4 years

Smashed glass in victim's face during altercation at club – victim had arm in plaster cast – victim lost sight in one eye as a result of incident.

Above mid range objective seriousness.

Butters

(21)

[2010] NSWCCA 1

s.35(2)

PG

(25%)

4y 6m

NPP 3y

ADGlassNil

SNPP – 4 years

Victim intervened after offender grabbed female companion on buttocks at hotel - Smashed glass into victim's face – eye later surgically removed – intoxicated

Prior good character but history of alcohol abuse - remorse

Dunn

[2010] NSWCCA 128

s.35(2)

PG

(17%)

2y 6m

NPP 15m

ADPunch 

SNPP – 4 years

Involved in fight with neighbour in street – both men exchanged punches – grabbed victim to head and kneed him in face causing facial fractures and loss of sight to eye – long term feud

Campbell-Stephen

[2010] NSWCCA 204

s.35(2)

 

Sched:

Common assault

PG

(not stated - Local Ct)

3y 6m

NPP 2y

ADPunch 

SNPP – 4 years

Single blow to V who fell and hit head on pavement – V suffered serious head injury with multiple skull fractures and brain swelling – argument at club.

Mid-range objective seriousness.

Dosen

(50)

[2010] NSWCCA 283

s.35(2)

PG

(25%)

3y

NPP 18m

ADGlassBreached bond for assault

SNPP – 4 years

Appellant and two companions forcefully ejected from hotel by victim – threw glass at victim striking him in the head – angry at treatment – spontaneous offence – significant injuries – slightly less than mid-range

Suffering depression and back injury

Mumberson

[2011] NSWCCA 54

s.35(2)

PG

(10% on appeal)

1y 8m

Suspended sentence

Crown AA

2y 3m

NPP 1y 3m

CarHigh range PCA

SNPP – 4 years

In highly intoxicated state – riding as passenger in vehicle being driven by V (D's girlfriend) – in emotional and aggressive state following argument on phone with friend -  told V where to drive – grabbed steering wheel causing vehicle to collide – V suffered serious spinal injuries – D had no recollection of events -  unusual case.

Good character.

Moss

(48)

[2011] NSWCCA 86

s.35(2)VG

3y 9m

NPP 2y

AD 

Stealing, assault, street offences, breach AVO (against same victim).

History stopped in 1997 and did not resume until 2008.

SNPP – 4 years

Lived in same Department of Housing development as 53 year old female victim – history of altercations between D and V – punched victim several times – victim suffered fractured nose – injuries at lower end of spectrum.

Mental illness – on bond.

Weir

[2011] NSWCCA 123

s. 35(2)

s. 195 – Destroy property

PG

(10%)

4y

NPP 1y 6m

AA – Appeal on s 35(2) offence only

 

3y

NPP 1y 6m

Claw hammerLengthy.

SNPP – 4 years

Attacked neighbour in apartment block following history of disputes – Struck victim in forearm and to forehead – s.195 offence involved damaging victim's door .

Offence in mid-range.

Mental illness - Denial of procedural fairness at sentence.

Reberger

(25)

[2011] NSWCCA 97

s.35(2)

PG

(25%)

4y 10m 15d

NPP 2y 11m 2d

AA

3y 9m

NPP 2y 3m

Beer glassDriving.

SNPP – 4 years

Glassed victim to side of face – victim suffered permanent loss of vision to right eye – spontaneous attack – victim had intervened in argument between applicant and other persons -  applicant intoxicated.

CCA assessed offence as about midrange.

Mental impairment – SJ failed to take into account causal connection between A's mental impairment and commission of offence – error as to assessment of objective seriousness.

O'Connor

[2011] NSWCCA 161

s.35(2)

PG

(10%)

4y

NPP 2y 6m

AD Long record including assaults – breached bonds

SNPP – 4 years

Punched female performing traffic control duties twice in mouth – facial injuries and broken leg from fall – spontaneous offence – mid range severity

Dysfunctional childhood – drug and alcohol abuse – PTSD – some evidence of rehabilitation – extra curial punishment from injuries inflicted when being restrained

Arnold

(39)

[2011] NSWCCA 150

s.35(2)

s.35(1)

AOABH

PG

(25%)

3y

NPP 2y

 

Total:

3y 3m

NPP 2y 4m

AA

3y

NPP 1y 10m

 

Total:

3y 3m

NPP 1y 10m

 insignificant

SNPP – 4 years

Drinking with victims in pub – pushed male friend to ground and several kicks to body and head – struck female friend across face and head butted second male friend when they attempted to intervene – affected by alcohol

Out of character

Passaris

(54)

[2011] NSWCCA 216

s.35(2)

PG

(10-15%)

8y

NPP 6y

ADtruckOld assault offences

SNPP – 4 years

Truck driver drove over the lower half of another truck driver standing between offender's truck and victim's truck – extensive lifelong injuries – well above mid range

Ross

(45)

[2012] NSWCCA 161

s.35(2)

PG

(10%)

4y 6m

NPP 3y 4m

AA

3y 8m

NPP 2y 9m

Piece of woodLengthy record including violence

SNPP – 4 years

During argument over dog and kitten struck male neighbour twice with piece of wood – blow to back caused serious internal injuries – mid range

Drug user

Dungay

(23)

[2012] NSWCCA 197

s.35(2)

PG

(25%)

1y 9m

Suspended sentence

Crown ADpunchJuvenile offences

SNPP – 4 years

Collided with male victim while being removed from night club – during altercation punched victim once to head – victim unconscious before hitting ground – fracture of skull - no memory of incident but accepted responsibility – both intoxicated

Significant rehabilitation since difficult childhood

Blackwell

[2012] NSWCCA 227

s.35(2)

VG

(13%)

4y 4m

NPP 2y 8m

Crown ADGlassminor

SNPP – 4 years

Struck male stranger at hotel with glass – loss of eye and facial scarring – intoxicated – SJ not satisfied aware glass in hand

Convicted at retrial for more serious offence – offer to plead guilty rejected – evidence of rehabilitation

Galbraith, B

(25)

 

 

 

 

 

Galbraith, R

(19)

 

[2013] NSWSC 284

Harrison J

s. 35(2)

Affray

 

 

 

 

 

s. 35(2)

Affray

VG

 

 

 

 

 

 

VG

s.35(2)

1y 8m Suspended sentence

 

Affray

2y GBB

 

  

Nil

 

 

 

 

 

 

 

Nil

SNPP – 4 years

Co-offender NWG (brother) struck V who fell unconscious to ground – Both As were with NWG when they confronted V and friends who had attended a party in their neighbourhood – unplanned – one of V's friends was killed when he ran into an oncoming car as he tried to escape – neither A directly assaulted V - each sentenced on basis of consequences of participation in the events that included the assault upon V.

Both: Prior good character – rehabilitation prospects – remorse – strong subjective case

Carpenter

(51)

[2013] NSWCCA 130

s. 35(2)

s. 196(1)(b)

PG

(not stated – day of trial)

Total:

7y 3m

NPP 4y 3m

AD Demand money, damage property  (similar prior offences)

SNPP – 4 years

Set fire to unit whilst victim was asleep inside – V suffered burns to 25% of body – A jealous of V's relationship with A's ex-girlfriend.

Substance abuse, mental health issues.

Brown

[2014] NSWCCA 215

s. 35(2)

PG

(10%)

4y 10m

NPP 3y 4m

AD Lengthy.

SNPP – 4 years

In domestic relationship with V, female partner – following argument punched V to both sides of head – V suffered fractured jaw and bruising – underwent surgery.

Mid-range objective seriousness.

Alcohol abuse.

Daniels

[2016] NSWCCA 35

s.35(2)

PG

(25%) – see [60]

4y 6m

NPP 3y

AD Agg B&E, violence offences.

SNPP – 4 years

Single one  punch to male victim outside hotel – mistaken belief that V had assaulted A's friend – unprovoked attack,  no warning - punched V to jaw – V required surgery and permanent bone plates.

Mid-range objective seriousness.

Alcohol abuse.

Mulligan

[2016] NSWCCA 47

s.35(2)

PG

(25%)

15m

Suspended

Crown AA

18m

NPP 12m

FistsMinor – some assault

SNPP – 4 years

Offender and victim both walking dogs – dogs became involved in scuffle – offender left dog and returned to punch victim in face three times – fractures – ongoing injuries

Hona

(20)

[2016] NSWCCA 119

s.35(2)

PG

(25%)

6y 9m

NPP 4y 9m

AD Violence, resist police, affray, take and drive conveyance

SNPP – 4 years

Assaulted male V at Bondi – Punched V who fell to ground, stomped on V's chest – Purposely sought out V who made it clear he did not want confrontation -  V suffered severe head injury,  coma  and serious continuing injury and rehabilitation.

Alcohol and drug abuse.

 

 

 

 

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Wound - s35 - Post 27.9.2007 amendment

Section 35(3) Reckless Wound in Company

s.35(3) Crimes Act 1900 (NSW) – 10yStandard non-parole period (where conviction entered or guilty plea accepted on or after 1.1.2008) – 4 years

This amended section commenced 27.9.2007  

NameOffencePleaSentenceAppealWeaponRecordSummary

AI

(17)

[2011] NSWCCA 95

s. 35(3)VG

3y

NPP 18m

Crown ADKnifeAssault. On parole.

With SB and JB at train station – AI instigated fight with V and friend – AI carried and wielded knife – kicked V – SB stabbed V a number of times to arm and chest – V suffered life threatening and permanent injuries.

Youth – troubled background  – offence not planned – did not inflict stabbing.

Sentence inadequate however due to completion of NPP and release on parole CCA declined to intervene.

SB charged with s 33 ([2011] NSWCCA 95)

Chen

(22)

[2013] NSWCCA 116

s.35(3)

PG

(25%)

3y

NPP 18m

ADKnifeNil

Slashed male stranger standing outside bar on arm with flick-knife – unprovoked attack

Out of character – intoxicated – Chinese national – married – remorse and good prospects of rehabilitation

Marial

(21)

[2016] NSWCCA 234

s.35(3)

PG

(25%)

7y

NPP 3y 6m

AA

5y 4m

NPP 3y 6m

PenPetty street crimes

One of group of four males – unprovoked attack on male stranger on street at night – V stabbed under eye by pen – sustained punching and kicking as V attempted to escape – joint criminal enterprise

Born in Sudan – witnesses extreme violence as a child – PTSD – drug and alcohol abuse – subsequent custodial offences confirm guarded prospects of rehabilitation

 

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Wound - s35 - Post 27.9.2007 amendment

Section 35(4) Reckless Wounding

s.35(4) Crimes Act 1900 (NSW) - 7y
Standard non-parole period (where conviction entered or guilty plea accepted on or after 1.1.2008) - 3 years

This amended section commenced 27.9.2007 

NameOffencePleaSentenceAppealWeaponRecordSummary

Barker

(59)

[2009] NSWCCA 225

s.35(4)

 

Possess loaded firearm so as to endanger life s.93G

 

Sched:

5 x firearms offences

PG

(not stated earliest opp)

1y 10m 15d

NPP 6m

Crown AD

(excessively lenient but discretion exercised)

Gun (used to strike)nil

Angry after being told another man had been running around with wife– entered house and struck sleeping wife with orange pipe – threatened wife with loaded shotgun – tied rope around throat – struck wife with shotgun to head – additional firearms found at residence where accused lived during work week – wounding not part of original plan

Victim had limited mobility due to ill health – accused intoxicated and concerned about losing job – no history of violence – out of character – genuine remorse

OH, Hyunwook

(28)

[2010] NSWCCA 148

s.35(4)

PG

(25%)

2y 6m

NPP 1y 6m

ADKnifeNil

Argument with victim who shared house – chased V through house with knife – sustained attack -  stabbed V in stomach – serious injury requiring surgery – spontaneous offence.

SJ erred in not referring to SNPP – sentence lenient.

Zreika

(32)

[2012] NSWCCA 44

s. 35(4)

PG

(not stated)

1y 11m

NPP 1y 3m

ADBeer bottleViolence, BE&S, DishonestyStabbed victim number of times with broken beer bottle after a heated argument – V was a neighbour of A's friend – A and V did not previously know each other.

Golding

(34)

[2012] NSWCCA 76

s.35(4)

 

Sched:

Assault

PG

(25%)

3y

NPP 2y 3m

 

ADKnifeRecord including violenceFisherman from Darwin visiting friend – became involved in confrontation with group of men outside house – collected knife from inside – accidently stabbed 16y girl who sought to intervene – intoxicated - mid range offence

Melbom

(32)

[2013] NSWCCA 210

s.35(4)

 

S.33B(1)(b)

PG

(20%)

4y

NPP 2y 10m 15d

FT 2y 4m

 

Total:

4y 6m

NPP 3y 4m 15d

ADKnifeRecord including knife offences

Staying with victims in victims' house – stabbed male occupant in chest during lengthy argument over phone – threatened female occupant with knife when she threatened to call police

Long history of substance abuse

Osborne

(35)

[2015] NSWCCA 260

s.35(4)

 

PG

(25%)

3y

NPP 2y

ADBeer GlassNil

Struck male V in face with two beer glasses at hotel following verbal altercation.

Good character – employed.

Skelton

(21)

[2015] NSWCCA 320

s. 35(4)

PG

(20%)

3y

NPP 18m

AA

2y 6m

NPP 13m

KnifeNil

"Blacked out" and stabbed V in bar in stomach area – did not know V.

Mental health - schizophrenia – mental health issues since aged 7 – drug abuse - student – living with parents.

 

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