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District Court 12 March 2009

R v TABORDA

[2009] NSWDC 51

Assault & violence
CRIMINAL LAW SENTENCE INTOXICATION

Citation: R v Taborda [2009] NSWDC 51
Court: District Court of New South Wales
Date: 12 March 2009
Judge: Berman SC DCJ

Background

The offender, a Colombian national in his early forties, pleaded guilty to one count of malicious wounding with intent to cause grievous bodily harm. The offence arose from a late-night altercation at a shared apartment between the offender and a flatmate following a dispute that had begun at a hotel earlier that evening.

The victim returned to the apartment and began making food in the kitchen. When the offender arrived shortly after, the argument resumed. After the victim pushed the offender, the offender produced a pocket knife with an eight-centimetre blade and swung it at the victim approximately five times. The victim sustained a serious stab wound to the front of his neck and a five-centimetre laceration to his elbow, requiring hospitalisation for three days. Doctors had to explore the neck wound to rule out life-threatening vascular injury.

The offender had no prior convictions and had come to Australia from Colombia seeking refugee status, which was ultimately denied. Defence submissions in mitigation centred on the offender's background in Colombia, including alleged threats to his safety due to his political affiliations there.

  • What discount should apply to the sentence to reflect the timing and utilitarian value of the guilty plea?
  • Whether the offender's intoxication at the time of the offence was a mitigating factor in sentencing.
  • What weight should be given to psychological reports where the underlying factual material was not established by sworn evidence?
  • Whether special circumstances existed justifying a longer-than-standard parole period.
  • Where on the range of objective seriousness the offence fell, having regard to its unplanned and spontaneous nature.

Decision

Guilty plea discount. The plea was entered at a relatively late stage, but the offender had indicated his intention to plead guilty shortly before trial. This avoided the need to bring witnesses from Colombia, providing a genuine utilitarian benefit to the Crown and the court. Berman SC DCJ applied a fifteen per cent discount to the sentence that would otherwise have been imposed.

Psychological reports and unsworn material. The defence tendered psychological reports that heavily relied on the offender's own account of his experiences in Colombia, including threats, displacement, and family separation. The offender did not give sworn evidence to establish the factual foundation for those accounts. Berman SC DCJ observed that the Court of Criminal Appeal has repeatedly warned that such reports warrant scepticism and attract reduced weight. The court found that what could have been powerful mitigating evidence was significantly undermined as a result.

Intoxication. The court accepted that alcohol can impair a person's capacity to reason calmly, but found no evidence that the offender was grossly intoxicated or that alcohol caused him to act out of character. A witness who knew the offender well and had seen him intoxicated previously stated that the offender had not previously been violent when drunk. The onus rested on the offender to establish intoxication as a mitigating factor, and that onus was not discharged. The court treated intoxication as a neutral consideration.

Objective seriousness and sentence. Although the standard non-parole period for this offence is seven years, the court placed this offence below the middle of the range. The attack was spontaneous and arose in the heat of an argument, rather than being planned or coldly executed. Special circumstances were found to exist: it was the offender's first time in custody, and the psychological material suggested he would benefit from an extended period of supervised parole. A total term of four years and eight months was imposed, with a non-parole period of two years and six months.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of two years and six months, commencing 18 November 2007.
  • The overall term of imprisonment was set at four years and eight months.
  • The offender became eligible for release to parole on 17 May 2010.

Key Takeaways

  • Psychological reports that rely on an offender's own unsworn account, without the offender giving sworn evidence at the sentencing hearing, will attract reduced weight in accordance with guidance from the Court of Criminal Appeal.
  • Where the onus lies on an offender to establish intoxication as a mitigating factor, evidence that the offender had not previously been violent when drunk, and no evidence of gross intoxication at the time, will support a finding that intoxication is neutral rather than mitigating.
  • A spontaneous, unplanned attack in the heat of an argument may be placed below the midpoint of objective seriousness even for a serious wounding offence, distinguishing it from organised or premeditated violence.
  • First-time custody and a demonstrated benefit from extended supervision can together constitute special circumstances, justifying a longer parole period relative to the non-parole period.
  • Remorse expressed only to third parties and psychologists, without the offender giving sworn evidence and submitting to cross-examination, carries diminished weight at sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Heron v R [2006] NSWCCA 215