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District Court 10 December 2010

R v HICKSON

[2010] NSWDC 336

Assault & violence
CRIMINAL LAW SENTENCE RECKLESS WOUNDING

Citation: R v Hickson [2010] NSWDC 336
Court: District Court of New South Wales
Date: 10 December 2010
Judge(s): Berman SC DCJ

Background

The offender, Matthew Hickson, appeared before the District Court for sentencing after pleading guilty to reckless wounding, an offence carrying a maximum penalty of seven years imprisonment and a standard non-parole period of three years. The offence arose from an incident in which the offender threw a tomato sauce bottle at the victim from approximately twenty metres away. The bottle struck the victim on the forehead, causing a laceration requiring stitches, and the victim briefly lost consciousness after falling to the ground.

The court accepted that the bottle was thrown more to frighten and annoy the victim than to cause deliberate injury, and that the offender may have assumed the victim would see the bottle coming and move out of the way. On that basis, the offending was treated as reckless rather than intentional.

The offender had a significant criminal history but had been in stable employment and accommodation, was engaged in a methadone maintenance program, and had a desire to maintain custody of his son. He had been diagnosed with borderline personality disorder and post-traumatic stress disorder, and had recently sustained injuries in a motor vehicle accident.

  • What sentence was appropriate for an offence of reckless wounding, having regard to objective seriousness and the offender's personal circumstances?
  • Whether the offender's guilty plea warranted a discount on sentence, and at what rate, given the application of the Criminal Case Conferencing Trial Act.
  • Whether a suspended sentence, rather than full-time custody, was an available and appropriate sentencing outcome.

Decision

The court found that the offence was significantly below the middle of the range of objective seriousness for reckless wounding. The absence of any intention to injure, the nature of the improvised projectile, and the element of bad luck in the bottle actually striking the victim all contributed to that assessment. Nevertheless, the court found that a custodial sentence was required given Parliament's identification of reckless wounding as a serious offence through the standard non-parole period mechanism.

On the guilty plea, the court applied a maximum discount of 12.5 per cent, as required by the Criminal Case Conferencing Trial Act, which capped the available discount for pleas entered in the District Court at that rate. The plea was one of several factors that influenced not only the quantum of the sentence but also the court's decision to impose a different form of sentence than it would otherwise have imposed.

The court suspended the one-year term of imprisonment under section 12 of the Crimes (Sentencing Procedure) Act 1999, attaching conditions including supervision by the Probation and Parole Service and a requirement to undergo treatment as directed. The Crown did not oppose this outcome. The court noted that the offender's mental health conditions, his drug treatment program, stable circumstances, and pre-sentence report all supported a non-custodial form of the sentence.

The court expressly warned the offender that the suspended sentence was not a soft outcome: breach of the bond, whether by reoffending or failing to comply with the Probation and Parole Service's requirements, would result in the imprisonment sentence being activated.

Orders Made

  • The offender sentenced to imprisonment for one year.
  • Execution of the sentence suspended for twelve months pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999.
  • The offender to enter into a good behaviour bond for the duration of the sentence.
  • Conditions of the bond: to be of good behaviour; to appear before the court if called upon; to accept supervision of the Probation and Parole Service and, if required, to undergo treatment with a health professional for the matters identified in Dr Jacmon's report.

Key Takeaways

  • The District Court treated objective seriousness as significantly below mid-range where the reckless wounding involved an improvised projectile, no intention to injure, and a degree of chance in the injury actually occurring.
  • Under the Criminal Case Conferencing Trial Act, the maximum sentencing discount available for a guilty plea entered in the District Court was capped at 12.5 per cent, a materially lower ceiling than the discounts available in other circumstances.
  • A suspended sentence remained available for reckless wounding, even where the offence carried a standard non-parole period, where the combination of low objective seriousness and favourable subjective factors justified that outcome.
  • Diagnosed mental health conditions, including borderline personality disorder and post-traumatic stress disorder, were accepted as factors making any full-time custodial sentence harder on this particular offender than on others in the community.
  • The court confirmed, in its remarks to the offender, that a suspended sentence operates as an actual imprisonment sentence: breach activates the term without any opportunity to argue for a different sentencing outcome.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Criminal Case Conferencing Trial Act (NSW)

Cases: No cases were cited in the provided judgment text.