Wood v R [2019] NSWCCA 309

Wood v R [2019] NSWCCA 309 · Read the judgment on AustLII

Catchwords: Objective seriousness – subjective case – ‘moral culpability’

The CCA has made it clear in this decision that there needs to be a bright-line distinction between factors which go to the objective seriousness of the offending, and those which go to the subjective case of the offender. However, they have also held that the concept of ‘moral culpability’ stands separate from those categories.

The applicant, whilst drunk, murdered his on-again off-again partner in her home. They had been out together and eventually both found themselves back at her house (this also breached an ADVO protecting the deceased). In a chain of events which was not clear, the applicant at some stage choked the deceased before stabbing her. He was immediately distressed about having done so, and eventually made full admissions, including that he had stabbed her, although he did not in fact remember doing so, and about his history as a violent alcoholic. He pleaded guilty. The offender had a history of domestic violence (including against this particular victim), and that criminal history was taken to be an aggravating factor. The sentencing judge found that this offence involved gratuitous cruelty, largely upon the basis of the extensive injuries suffered by the deceased inconsistent (so his Honour found) with the exigencies of life). His Honour also found that the offender’s intoxication was a matter which aggravated the offending because the offender was voluntarily intoxicated, had a criminal history of committing offences of violence when drunk, and the offender himself had admitted to police that he was a ‘bad drunk’ who did crazy things when drunk. The offender was sentenced in the Supreme Court to imprisonment for 25 years and 6 months, with a non-parole period of 19 years and 1 month. He appealed on seven grounds, of which there is only space enough to discuss a few.

The Court (Hoeben CJ at CL, Campbell J agreeing; Price J agreeing with the outcome but dissenting on one ground of appeal) pointed out that most of the grounds of appeal raised by the applicant proceeded on the basis that certain aggravating factors had been taken into account by the sentencing judge to aggravating the objective seriousness of the offence specifically, rather than just increasing the sentence overall. This was found to have been a misunderstanding about the structure of the original sentencing judgment (at [66]). So, for example, the ground of appeal alleging that it had been an error to use the offender’s poor criminal record to aggravate the objective seriousness was misconceived (at [90] to [92]).

However, the finding in mitigation that the offending had not been planned had been set out in the sentencing judgment under the heading ‘The offender’s subjective case’. The sentencing judge had definitely taken that factor into account in mitigating the sentence, but here the Court found that the absence of planning is a factor which ‘[q]uite clearly’ goes to the objective seriousness of the offending, and was therefore wrongly taken into account when considering the offender’s subjective case (at [108]; there is no explanation as to why this was considered to be ‘clear’).

Another ground of appeal alleged that the sentencing judge had failed to take into account the applicant’s disadvantaged background as a factor relevant to his moral culpability (in the way required by the High Court in Bugmy v The Queen (2013) 249 CLR 571). The majority found that the sentencing judge had sufficiently taken that background into account (at [123]; Price J dissented on this ground and held it was only a somewhat cursory treatment: at [181]). But the ground is interesting because of an additional comment made at [125] (and adopted by Price J at [183], despite his Honour’s dissent on the outcome of this ground of appeal). It had been suggested by the applicant’s counsel on appeal that the concepts of objective seriousness and moral culpability were, to some extent synonymous. This was held to be wrong. Moral culpability is a standalone concept which, like totality and proportionality, can be affected by subjective factors as well as matters which go to objective seriousness. So, for example, the evidence relating to a deprived or violent background can raise subjective issues relating to moral culpability. Equally, factors like torture, which clearly goes to the objective seriousness of the offending, can also influence a finding of moral culpability.

Because of the error relating to planning and another error relating to the finding about gratuitous cruelty, the appeal was upheld, and the applicant was resentenced to 24 years with a non-parole period of 18 years.

It follows that the CCA (at least in this judgment) is seeking a very careful delineation between objective and subjective factors. This, it seems, might not always be an easy task.