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Supreme Court 18 May 2000

Regina v Towers

[2000] NSWSC 420

Assault & violence
CRIMINAL LAW SENTENCE MALICIOUS WOUNDING ORIGINAL CHARGE OF MURDER ABANDONED OPTIONS

Citation: Regina v Towers [2000] NSWSC 420
Court: Supreme Court of New South Wales (Criminal Division)
Date: 18 May 2000
Judge(s): Michael Grove J

Background

The offender was arrested in January 1998 and charged with the murder of a man following a violent incident at a residential premises. The events occurred during an extended drinking session involving the offender, the deceased, and two women. A trial before a jury was listed to commence on 1 May 2000.

Shortly before the trial, new information came to light. An indictment was presented including counts of murder and, alternatively, malicious wounding. The offender pleaded not guilty to murder but guilty to malicious wounding, and the Crown accepted that plea in full discharge of the indictment, with an express understanding that the not guilty plea to murder encompassed manslaughter as well.

The sentencing court was therefore dealing solely with the malicious wounding conviction. The court emphasised that this conviction carried no finding of culpability for the death of the deceased.

  • What sentence was appropriate for malicious wounding in circumstances where a murder charge had been abandoned?
  • What weight should be given to time already served in custody (approximately ten months) where that custody related to the abandoned murder charge rather than the offence being sentenced?
  • What weight should be given to the loss of a real chance that the matter might have been dealt with summarily in the Local Court, with a lower maximum available penalty?
  • Whether a suspended sentence, good behaviour bond, community service, or periodic detention was the most appropriate sentencing outcome.

Decision

The court found that the offender had used a piece of broken glass with a sharpened edge to inflict injuries on the deceased, striking up to seven blows in the kitchen area of the premises. The stab wounds that caused the deceased's death were caused by another person and were entirely distinguishable from the glass injuries. The court found no evidence that the offender was part of any joint criminal enterprise with the person responsible for the stabbing.

On subjective matters, the court noted the offender's low intellectual abilities, limited and largely ineffective schooling, and disadvantages commonly associated with his Aboriginal heritage. His prior record, including an assault conviction and a current good behaviour recognizance from Moree Local Court (which was breached by this offence), operated as an aggravating factor.

The court gave significant weight to two mitigating considerations. First, the offender had already served approximately ten months in custody, all of it referable to the murder charge that was ultimately not pressed. Second, the procedural history meant the offender lost a real chance of having the matter dealt with summarily, where the maximum available custodial term would have been two years with a non-parole period of eighteen months, meaning he had already served ten of a possible eighteen months on that measure.

The court declined to impose a suspended sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999, reasoning that the associated limitations on the length of the bond would produce a shorter supervisory period than a standalone good behaviour bond. Community service and periodic detention were considered and rejected as unsuitable. A three-year good behaviour bond was imposed in lieu of imprisonment.

Orders Made

  • The offender was directed to enter a good behaviour bond for three years, commencing 18 May 2000 and expiring 17 May 2003.
  • Conditions of the bond: the offender must appear before the court if called upon; must be of good behaviour; and must notify the Deputy Registrar of the Supreme Court at Newcastle of any change of residential address during the bond period.

Key Takeaways

  • Where a murder charge is abandoned and a plea of guilty to malicious wounding is accepted instead, the sentencing court must deal with the wounding offence in isolation, without any finding of culpability for the death.
  • Time served in custody on a more serious charge that is subsequently not pressed can be taken into account in sentencing on the lesser charge, even though that custody did not technically arise from the offence being sentenced.
  • The loss of a genuine opportunity to have a matter dealt with summarily, caused by the procedural necessity of including an alternative count on an indictment, is a relevant consideration that can reduce the effective sentencing range available in the higher court.
  • Under section 12 of the Crimes (Sentencing Procedure) Act 1999, the period of suspension in a suspended sentence cannot exceed the term of the sentence, capped at two years overall, with the accompanying good behaviour bond subject to the same limit. The Supreme Court found that a standalone good behaviour bond could offer a longer supervisory period than a suspended sentence in appropriate circumstances.
  • A good behaviour bond in lieu of imprisonment remains available in the Supreme Court where the combination of time already served, lost sentencing options, and offender circumstances makes a return to custody disproportionate.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences)
- Crimes Act 1900 (NSW) (malicious wounding, maximum penalty of seven years imprisonment)

Cases cited: None cited in the judgment or metadata.