Nowak v R (2008)

In this mater Greg Walsh appeared on behalf of the applicant in the New South Wales Court of Criminal Appeal. The applicant sought leave to appeal against the sentence imposed upon him in the District Court following his plea of guilty with the intent to maliciously inflict grievous bodily harm.

The applicant and the victim were amongst a number of guests at a wedding ceremony and reception. In the course of the evening there was a disagreement with a man who was part of the bridal party. The applicant and three of his friends were asked to leave the reception by members of the families of both the bride and groom. The offender and his three friends walked down the driveway from the reception to the roadway, a distance of about 70 metres. The applicant had in his possession a 700ml glass vodka bottle which was still sealed and full. The bride’s father was walking behind the applicant and his friends in order to ensure they left the premises. As he reached the exit gate to the driveway the applicant was pushed in the back and he swung the glass bottle which he was holding and struck the victim with it. The glass bottle shattered upon impact with the victim’s face. The victim sustained lacerations to his face and a fractured nose.

The applicant voluntarily attended Quaker’s Hill Police Station where he was arrested. At the time of his offence he was 21 years of age and 22 when he stood for sentence. He had been attending university and was within six months of completing his Bachelor of Science degree. He had no prior convictions and was a person of otherwise good character.

Greg Walsh relied upon the following Grounds of Appeal on behalf of the applicant, namely:

1. That the sentence imposed by the learned sentencing judge was too severe having regard to the objective and subjective circumstances of the offence.
2. That the sentencing judge erred in finding that there were aggravating features present including:
3. The use of the weapon to inflict the injuries and the force used
4. The extent of the injuries sustained.
5. That the victim was vulnerable in the extreme.
6. That the sentencing judge erred in finding there was no provocation on the part of the victim.

Buddin, Barr JJ and Bell JA agreed. They referred to the provisions of s21A(2)(c) of the Crimes (Sentencing Procedure) Act. His Honour referred to R v Elyard (2006), R v Cramp (2004). Buddin J found that the sentencing Judge had fallen into error and upheld this ground of appeal.

In relation to the issue of the victim being vulnerable, Buddin J referred to R v Tadrosse (2005). The sentencing judge found the victim, by not being armed, was vulnerable in the extreme. His Honour at [31] also found this ground of appeal had been made out. The Court found that the offence was a serious one and that in all of the circumstances no other sentence was warranted in law. The appeal was dismissed.