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District Court 2 October 2009

R v Waters, Napier

[2009] NSWDC 297

Assault & violence
CRIMINAL LAW SENTENCING S.11 BAIL AGGRAVATED WOUNDING IN COMPANY OF FEMAL CO OFFENDER

Citation: R v Waters, Napier [2009] NSWDC 297
Court: District Court of New South Wales
Date: 2 October 2009
Judge(s): Nicholson SC DCJ

Background

The offender, a 36-year-old Aboriginal man with an extensive criminal history including 39 prison admissions, pleaded guilty to recklessly wounding a victim in Kings Cross on 3 June 2008. He committed the offence in the company of his then partner. The charge was accepted in full satisfaction of a three-count indictment.

The circumstances involved the offender and his partner approaching the victim for money, with the situation escalating into a physical assault. The victim was forced to the ground and punched by both offenders, sustaining a 3 cm laceration to his face and requiring overnight hospitalisation. The victim had a prior heart condition, which added to the seriousness of the physical risk he faced.

The offender had been held on remand for approximately 16 months by the time of sentencing. His offending was connected to long-term drug use, with cocaine identified as the substance used around the time of the offence, alongside a broader history involving alcohol, cannabis, heroin, and methadone.

  • What was the objective seriousness of the offending conduct, and how should competing factual versions be resolved?
  • What subjective factors applied to the offender, including his background, drug dependency, and time on remand?
  • Whether the time spent on remand (approximately 16 months) and the offender's prospects for rehabilitation justified a sentence of conditional bail under section 11, rather than a further custodial term.
  • What conditions should attach to any bail order to address rehabilitation and community protection.

Decision

On the facts, the court rejected the offender's account that the victim had first manhandled his partner, finding beyond reasonable doubt that the version given by the victim was closer to reality. The court was satisfied the offender had been seeking money to sustain drug use, and that persistent soliciting had degenerated into an assault. No weapon was found to have been used, and no finding of a formal "demand" for money was made.

The court assessed the objective seriousness of the offence as below the mid-range. While the assault caused a laceration requiring hospitalisation and occurred in company, the court applied the principle that criminality must be assessed only by reference to the charge actually before it, not any more serious alternative that might have been charged.

Significant weight was given to the 16 months already spent on remand, which the court treated as substantial pre-sentence custody. The offender's drug dependency was identified as the root cause of the offending. Although his criminal history was lengthy, the court considered prospects for rehabilitation to be real, particularly given the possibility of the offender relocating to a country area and engaging in full-time residential rehabilitation.

The court determined that a further period of full custody was not warranted, and that conditional bail under section 11 for 12 months provided the appropriate outcome, with rehabilitation as a central condition.

Orders Made

  • Section 11 conditional bail granted for a period of 12 months.
  • A stay of the order was imposed until 8 October 2009.
  • Conditions attached to the bail included:
  • Full-time residential drug and alcohol rehabilitation.
  • Abstinence from alcohol for the first eight months, with the possibility of review thereafter.
  • Submission to random breath and urine testing.
  • Attendance at Alcoholics Anonymous at least once weekly, with proof of attendance.
  • Compliance with all directions from the rehabilitation case manager.
  • Seeking and maintaining employment, or enrolment in a Centrelink personal support program if employment was unavailable.
  • Participation in community activities (for example, volunteering with charitable organisations).
  • Attendance at all required programs and counselling sessions.

Key Takeaways

  • The District Court confirmed that the limits of sentencing criminality are fixed by the charge before the court, not by more serious charges that were available but not prosecuted, citing De Simone v The Queen (1981) 147 CLR 383.
  • Where competing factual accounts exist at sentencing, the court must make findings of fact on the evidence, including evidence from third-party witnesses, before assessing objective seriousness.
  • Approximately 16 months of pre-sentence remand custody was treated as a substantial factor weighing against the imposition of a further full custodial term.
  • Drug dependency identified as the causative background to offending can inform both the sentencing outcome and the conditions attached to any non-custodial order, particularly where rehabilitation prospects are assessed as genuine.
  • Conditional bail under section 11, with intensive rehabilitation requirements, was available and applied as a sentencing outcome even for an offender with a lengthy prior record, where the combination of time served, drug-related causation, and rehabilitation prospects supported it.

Legislation and Cases Referenced

Legislation:
- Section 11 (Bail Act, NSW) (conditional bail at sentence)

Cases:
- R v Way (2004) 60 NSWLR 168
- R v Gladue [1999] 1 SCR 688 (Canadian Supreme Court, referenced in relation to Aboriginal offenders and sentencing)
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby (1977) 1 NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- De Simone v The Queen (1981) 147 CLR 383