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District Court 18 December 2009

R v Nelson, Jacob

[2009] NSWDC 399

Assault & violence
CRIMINAL LAW SENTENCING RECKLESSLY CAUSE GBH STANDARD NON PAROLE PERIOD OFFENCE NEW YEAR'S EVE PARTY OFFENDER INVITED TO LEAVE

Citation: R v Nelson, Jacob [2009] NSWDC 399
Court: District Court of New South Wales
Date: 18 December 2009
Judge(s): Nicholson SC DCJ

Background

In the early hours of 1 January 2009, a New Year's Eve gathering in Dulwich Hill ended in a violent assault. The offender, Jacob Ashley Nelson, had attended a small party where he consumed alcohol and drugs including LSD. His behaviour throughout the night was withdrawn and increasingly agitated, and he made comments expressing resentment toward another attendee, Adam Scammell, about Scammell's perceived attractiveness and success with women.

Scammell was asked by the other party-goers to encourage Nelson to leave, which he did in a considerate manner. Nelson departed but shortly returned with two other men. Scammell, unaware that one of them was Nelson's brother, went outside out of concern for Nelson's safety with what he believed were unknown strangers.

When Scammell attempted to separate Nelson from the group, Nelson became aggressive. He tackled Scammell, pinned him against a fence and then to the ground, and bit off Scammell's left ear entirely. The ear was spat onto the road. Scammell suffered severe pain, significant blood loss, and permanent disfigurement. Nelson pleaded guilty to recklessly causing grievous bodily harm.

  • What was the appropriate objective seriousness of the offence, and whether it fell within the mid-range for the purposes of the standard non-parole period for recklessly causing grievous bodily harm under the Crimes Act 1900
  • Whether the standard non-parole period should be applied, or whether there were grounds to depart from it
  • What weight should be given to the offender's subjective circumstances, including his youth, mental health vulnerabilities, drug and alcohol issues, and early plea of guilty
  • Whether special circumstances existed to justify a longer than usual parole period relative to the non-parole period
  • What sentence, including the appropriate discount for the guilty plea, reflected the totality of the relevant sentencing factors

Decision

The court assessed the objective seriousness of the offence as falling below the mid-range. The court noted the offender was significantly affected by drugs and alcohol at the time, had mental health vulnerabilities, and was a young person. These factors reduced the objective gravity of the offence, even accounting for the severe and permanent nature of the harm inflicted.

The court applied the principle from R v Di Simoni (as referenced in the catchwords) in considering that the offence was committed in company, which was an aggravating factor. The court also noted the offender's earlier demonstrated resentment toward the victim based on physical attractiveness, which informed the context of the assault. However, those circumstances did not lift the offending into the mid-range.

Because the offence did not fall within the mid-range of objective seriousness, the court found the standard non-parole period did not apply. The court noted that even if it had fallen in the mid-range, the offender's youth, early guilty plea, and rehabilitation prospects would have provided grounds under s 21A(3) of the Crimes Act 1900 to depart from it. The standard non-parole period was nonetheless treated as a reference point in the sentencing exercise.

The court identified special circumstances to justify departing from the standard ratio between the non-parole and parole periods. Those circumstances were the offender's need for rehabilitation and the importance of personal deterrence through the structure of a supervised parole period. A 25 per cent discount was applied to the head sentence for the early guilty plea, reducing what would have been a five-year term to three years and nine months.

Orders Made

  • Nelson convicted of recklessly causing grievous bodily harm (domestic violence related), committed on 1 January 2009 at Dulwich Hill
  • Non-parole period of 18 months, commencing 2 January 2009, expiring 1 July 2010
  • Balance of term of 27 months (2 years and 3 months)
  • Total sentence: 3 years and 9 months
  • Special circumstances found, resulting in a longer than usual parole period

Key Takeaways

  • The District Court confirmed that where an offence of recklessly causing grievous bodily harm falls below the mid-range of objective seriousness, the standard non-parole period does not automatically apply, though it retains a role as a sentencing reference point.
  • Significant intoxication by drugs and alcohol at the time of the offence was treated as a factor bearing on objective seriousness, not as a mitigating factor in the subjective sense, consistent with an assessment that reduced overall criminality without excusing the conduct.
  • An early guilty plea attracted a 25 per cent discount on the head sentence, reducing a notional five-year term to three years and nine months.
  • Special circumstances were found where the combination of rehabilitation needs and personal deterrence justified extending the parole period beyond the standard proportion of the total term.
  • Committing the offence in company was treated as an aggravating factor in the sentencing assessment, reflecting the application of the Di Simoni principle that objective seriousness may be affected by the circumstances surrounding the offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 21A(3)

Cases:
- R v Gladue [1999] 1 SCR 688
- Hearne (2007) 124 A Crim R 457
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby [1977] 2 NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- R v Di Simoni (referenced in the sentencing reasons; full citation not provided in the judgment text)