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District Court 28 November 2006

R v Michael Patrick Hudson

[2006] NSWDC 140

Assault & violence
SENTENCE AFTER GUILTY PLEA MALICIOUS WOUNDING AGGRAVATED AND MITIGATING FACTORS

Citation: R v Michael Patrick Hudson [2006] NSWDC 140
Court: District Court of New South Wales
Date: 28 November 2006
Judge(s): Nield DCJ

Background

The offender, a 31-year-old Aboriginal man, pleaded guilty to malicious wounding following a violent incident on Boxing Day 2005 in the Dareton area. In the early hours of 26 December 2005, he forced entry into the bedroom of his sister and her de facto partner, who had both been asleep after a night of heavy drinking. The offender, also heavily intoxicated, was carrying a knife and demanded cannabis and alcohol. He then stabbed the victim three times in the chest.

The victim was hospitalised for three days and may have sustained permanent nerve damage to his arm. The offender fled the scene but disclosed what he had done to his father shortly afterwards. He was arrested the same morning and remained in custody without applying for bail.

The offender appeared in the Local Court on 4 May 2006 and entered a guilty plea at the earliest appropriate opportunity. He was committed to the District Court for sentencing. He had prior convictions for malicious wounding on two separate occasions, as well as other offences involving violence.

  • What sentence was appropriate for an offence of malicious wounding under s 35(1)(a) of the Crimes Act, taking into account the objective seriousness of the offence?
  • What weight should be given to the offender's Aboriginal background and his deprived upbringing, applying the principles in R v Fernando?
  • How should the offender's intoxication at the time of the offence be treated as a sentencing factor?
  • Was there a special circumstance justifying a departure from the standard ratio between the non-parole period and the parole period?
  • What discount was appropriate for the early guilty plea?

Decision

Nield DCJ characterised the offence as objectively very serious. It was an unprovoked, armed attack on an unarmed and defenceless man asleep in his own bed, carried out by an offender who had already served prison time for prior malicious wounding offences. The court described the conduct as cowardly and noted that the victim suffered three stab wounds, with a risk of permanent nerve damage.

Despite the objective gravity, the court identified several mitigating considerations. The offence was unplanned, of short duration, and committed while the offender was heavily intoxicated. No life-threatening injury resulted, and the offender demonstrated some remorse by disclosing the stabbing to his father almost immediately afterwards. His guilty plea was also accepted as a further indicator of remorse.

The court applied the principles from R v Fernando, as elaborated in R v Ceissman and R v Pitt, in recognition of the offender's Aboriginal background and his materially deprived and unsettled upbringing. However, the court noted that the offender's lengthy criminal history, including repeated violence, undermined confidence in his prospects for rehabilitation. The court also declined to apply the R v Crombie principle regarding the Local Court's concurrent jurisdiction, following the Court of Criminal Appeal's guidance in R v Cage.

The court set a starting point of five years imprisonment, reduced by 25 percent for the early guilty plea, producing a head sentence of three years and nine months. A special circumstance was found based on the offender's need for extended supervision on release, resulting in a non-parole period shorter than the statutory default.

Orders Made

  • The offender was convicted of malicious wounding.
  • Sentenced to imprisonment for three years and nine months.
  • Non-parole period of two years and three months, commencing 26 December 2005, with eligibility for parole from 25 March 2008.
  • Parole period of one year and six months, from 26 March 2008 to 25 September 2009.
  • The offender was ordered to be subject to supervision by the NSW Probation and Parole Service during the parole period.

Key Takeaways

  • The District Court confirmed that an offender's Aboriginal background and deprived upbringing are relevant sentencing considerations under the principles in R v Fernando, even where the offence is objectively serious.
  • Heavy intoxication at the time of an offence may be treated as a mitigating factor where it indicates the offence was unplanned and impulsive, though this does not diminish the court's recognition of objective seriousness.
  • A 25 percent discount applied where a guilty plea was entered at the earliest appropriate opportunity, consistent with established sentencing practice.
  • Under R v Cage, the existence of concurrent Local Court jurisdiction does not operate in an offender's favour at sentencing where the Director of Public Prosecutions has not consented to summary disposal.
  • Extended supervision needs on release can constitute a special circumstance justifying a non-parole period shorter than the statutory default ratio, even where the court expresses hesitation about the offender's rehabilitation prospects.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases:
- R v Fernando (1992) 76 A Crim R 58
- R v Ceissman [2001] NSWCCA 73; (2001) 119 A Crim R 535
- R v Pitt [2001] NSWCCA 156
- R v Crombie [1999] NSWCCA 297
- R v Cage [2006] NSWCCA 304