AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Local Court 30 April 2009

R v Gary Patrick GUISA

[2009] NSWLC 10

Assault & violence
CRIMINAL LAW RECKLESS WOUNDING PLEA OF GUILTY FOLLOWING NEGOTIATIONS “GLASSING” DETERRENT SENTENCE REQUIRED

Citation: R v Gary Patrick GUISA [2009] NSWLC 10
Court: Local Court of New South Wales (Albury)
Date: 30 April 2009
Judge(s): Magistrate Lerve

Background

The offender, a 23-year-old male, spent the evening of 18-19 July 2008 drinking heavily with his brother and a friend before attending a hotel in Albury in the early hours of the morning. Following an unprovoked confrontation near a pool table, the offender grabbed the victim from behind and struck him in the forehead with a glass, which shattered on impact. The victim sustained two lacerations requiring a combined total of approximately 17 to 18 sutures, and some degree of permanent cosmetic scarring was considered inevitable.

The offender was initially charged with Maliciously Inflicting Grievous Bodily Harm with Intent, an offence carrying a heavier maximum penalty under s 33 of the Crimes Act 1900. Following protracted plea negotiations, the charge was reduced and the offender pleaded guilty to Reckless Wounding under s 35(4) of the same Act. The matter had come before the court on ten separate occasions before the guilty plea was entered.

  • What discount, if any, should apply to the sentence for the utilitarian value of a guilty plea entered after protracted negotiations and a charge reduction?
  • How should the court assess objective seriousness where the agreed facts effectively described intentional conduct, while the plea was to a reckless offence?
  • Whether the use of a glass as a weapon constituted an aggravating feature relevant to sentencing
  • Whether full-time custody was the appropriate sentencing disposition, and whether special circumstances existed to justify varying the standard ratio between non-parole period and balance of term

Decision

On the question of the plea discount, the Magistrate declined to award the maximum 25% utilitarian discount. Because the plea followed lengthy negotiations and a charge reduction, and the matter had been before the court ten times prior, the Magistrate concluded that a reduced discount was appropriate. Erring on the side of generosity to the offender, a 20% discount was applied.

Assessing the objective seriousness of the offending required careful navigation. The Magistrate noted that on the agreed facts, the act of picking up the glass and swinging it at the victim was plainly intentional, even though the plea was to a reckless offence. Consistent with the High Court's principle in De Simoni v The Queen, the Magistrate was required to sentence on the basis that the wounding was reckless, while acknowledging candidly that this placed the sentencing exercise close to what was described as "a legal fiction." The use of a glass as a weapon, capable of causing lethal injury, was treated as a clear aggravating feature, consistent with Court of Criminal Appeal authority.

The Magistrate found that the offending, being entirely unprovoked and committed at licensed premises using a dangerous makeshift weapon, warranted a deterrent sentence. Full-time custody was held to be the only appropriate disposition. Special circumstances were found to exist, given the offender's age, his first experience of custody, and the need for supervision around alcohol use, which justified a departure from the standard statutory ratio between the non-parole period and the balance of term.

Before applying the plea discount, the Magistrate assessed the appropriate head sentence at two years' imprisonment. After applying the 20% discount and modest rounding, the head sentence became 19 months, comprising an 11-month non-parole period and an 8-month balance of term.

Orders Made

  • The offender is convicted of recklessly wounding the victim at Albury on 19 July 2008
  • Non-parole period of 11 months, commencing 19 July 2008 and expiring 18 June 2009
  • Balance of term of 8 months, commencing 19 June 2009 and expiring 18 February 2010

Key Takeaways

  • A guilty plea entered after protracted negotiations and a charge reduction will not automatically attract the full 25% utilitarian discount available for an early plea; the circumstances of the plea process are relevant to the size of the discount.
  • Where agreed facts effectively describe intentional conduct but the offence pleaded to requires only recklessness, the De Simoni principle requires the sentencing court to proceed strictly on the basis of the lesser mental element.
  • Using a glass as a weapon against a person's head is an aggravating sentencing factor, consistent with Court of Criminal Appeal authority recognising glassware as a particularly dangerous instrument in the context of licensed-premises violence.
  • Objective seriousness of a wounding offence turns significantly on the nature of the injury inflicted, though the manner and circumstances of the wounding, including any use of a weapon and the absence of provocation, also bear on the assessment.
  • Special circumstances justifying a variation of the standard non-parole period ratio may be found where an offender is young, is experiencing custody for the first time, and has an identified need for supervised rehabilitation, particularly around alcohol.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 35(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 9

Cases:
- De Simoni v The Queen (1981) 147 CLR 383
- R v Boney [2008] NSWCCA 313
- R v Borkowski [2008] NSWCCA 102
- R v Corbett [2008] NSWCCA 42
- R v Doan (2000) 50 NSWLR 115
- R v Dodd (1991) 57 A Crim R 349
- R v Kite [2008] NSWDC 7
- R v McCullough [2009] NSWCCA 94
- R v McKenna [2007] NSWCCA 113
- R v Nowak [2008] NSWCCA 89
- R v Sayin [2008] NSWCCA 307
- R v Sullivan & Skillin [2008] NSWCCA 290
- R v Wright [2009] NSWCCA 3