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Supreme Court 31 May 2002

REGINA v. ANDREW

[2002] NSWSC 489

Assault & violence
CRIMINAL LAW PLEA OF GUILTY SENTENCING ASSAULT OCCASIONING ACTUAL BODILY HARM AGED OFFENCE CIRCUMSTANCES OF EXTENUATION

Citation: [2002] NSWSC 489
Court: Supreme Court of New South Wales
Date: 31 May 2002
Judge(s): Greg James J

Background

The offender was 16 years old in May 1990 when a teacher at his boarding school used alcohol to draw him into homosexual acts and infected him with a venereal disease. Deeply disturbed by this, the offender went to the teacher's premises with a friend, bringing a small baseball bat. Although he had earlier discussed the possibility of striking the teacher, he initially attempted to speak with him about the experience. When the teacher suggested watching a video, the offender feared a further sexual approach and, in a state of fear, anger and frustration, struck the teacher to the head with the bat and a couple of times to the back. The friend then carried out the acts that caused the teacher's death.

Both the offender and his friend were charged with murder. The offender was acquitted of murder but convicted of manslaughter and sentenced to six years imprisonment with a minimum term of four years. That conviction was overturned on appeal and he was subsequently acquitted of manslaughter at a retrial.

Some months after his acquittal, the Director of Public Prosecutions filed an ex officio indictment charging the offender with malicious wounding offences. Pre-trial arguments about the scope of permissible facts led the prosecution to abandon that indictment by entering a nolle prosequi (a formal discontinuance). A fresh indictment was then filed containing a single charge of assault occasioning actual bodily harm, to which the offender pleaded guilty.

  • Whether the principle in Regina v De Simoni (which prohibits sentencing on the basis of facts that would constitute a more serious offence of which the offender was acquitted) limited the facts available for sentencing
  • How the sentencing regime applicable at the time of the 1990 offence should be approached, given the age of the offence
  • Whether the circumstances of the offence constituted "extenuating circumstances" for the purposes of a section 10 application
  • Whether section 10 of the Crimes (Sentencing Procedure) Act 1999 applied so that the charge could be dismissed without proceeding to conviction

Decision

Greg James J considered the extensive personal history of the offender and the circumstances of the offence in detail. The court received unchallenged psychiatric reports, personal testimonials, and the offender's own affidavit. These materials documented serious psychological harm, suicide attempts, traumatic experiences in custody, and the ongoing burden of the protracted proceedings over more than a decade.

On the De Simoni principle, questions arose during pre-trial argument about whether facts going to "malice" could be relied upon given the prior acquittals. That issue was effectively resolved by the Crown's decision to discontinue the malicious wounding charges and proceed only on the lesser assault charge.

The court acknowledged that the offence was not trivial. However, it found that highly extenuating circumstances existed, pointing particularly to the offender's age at the time, his health and mental condition, his complete absence of prior adverse conduct, and his good character both before and after the offence. The Crown did not oppose a section 10 order and accepted that no further custodial sanction or bond was warranted.

Having regard to all of those matters, including the offender's demonstrated contrition and remorse over many years, the court concluded this was a proper case for an order under section 10. The charge was dismissed without proceeding to conviction.

Orders Made

  • The charge of assault occasioning actual bodily harm was dismissed under section 10 of the Crimes (Sentencing Procedure) Act 1999, without proceeding to conviction.

Key Takeaways

  • Section 10 of the Crimes (Sentencing Procedure) Act 1999 is not confined to trivial offences. The Supreme Court confirmed that the discretion under the section is wide and extends to cases where highly extenuating circumstances exist, even where the offending conduct was objectively serious.
  • A sentencing court may dismiss a charge without conviction under section 10 by reference to the offender's age, health, mental condition, antecedents and good character, as well as the extenuating circumstances of the offence itself.
  • Where a prior acquittal for murder and manslaughter preceded a guilty plea to assault occasioning actual bodily harm arising from the same events, the De Simoni principle (which prohibits sentencing on the basis of facts constituting a more serious offence of which the offender was acquitted) shaped the Crown's approach to the charges it could properly pursue.
  • Protracted proceedings spanning more than a decade, including multiple trials, periods of custody, conditional bail, and the psychological consequences of those circumstances, were relevant to the sentencing discretion exercised by the court.
  • The absence of any further offending across a lengthy period of stringent conditional liberty was a factor the Crown expressly conceded weighed against the imposition of any bond or additional restriction on the offender's future conduct.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10

Cases
- R v De Simoni (1981) 147 CLR 383 (High Court of Australia: principle prohibiting sentencing on the basis of facts constituting a more serious offence of which the offender was acquitted)
- MVR [2002] NSWCCA 129