Citation: R v Pankhurst [2012] NSWDC 165
Court: District Court of New South Wales
Date: 16 February 2012
Judge(s): Murrell SC DCJ
Background
The offender, a 21-year-old woman, pleaded guilty to two offences arising from a violent attack on a victim at an isolated location known as the Border Loop in Cougal on 10 April 2010. The offender, two co-offenders (Shane Hurst and a juvenile referred to as A), and the victim had travelled together from New South Wales to Brisbane, ostensibly for a drug purchase that did not proceed. The victim was blamed for the failed transaction.
On the return journey, the group stopped at the isolated Border Loop car park. After an extended period, the co-offender Mr Hurst initiated a violent assault on the victim, stabbing and kicking him. The offender and A then joined the attack. The offender kicked the victim in the head and testicles, and stabbed him once in the left side after being handed a knife and encouraged by A. The victim sustained six stab wounds in total, a fractured jaw, and significant bruising. After the assault, the offender and Mr Hurst pushed the victim down a steep embankment. The victim survived and walked several kilometres to find help.
The offender was sentenced on the basis of joint criminal enterprise. Her own stated motive for participating in the assault was that the victim had previously rejected her sexually.
Legal Issues
- What sentence was appropriate for the offence of wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW)?
- What sentence was appropriate for the offence of recklessly causing grievous bodily harm in company under s 35 of the Crimes Act 1900 (NSW)?
- What discount, if any, should be applied for the guilty plea, given the timing and circumstances of the plea?
- How should the two sentences be structured and accumulated to reflect the overall criminality?
Decision
Murrell SC DCJ identified the offender's role as serious but, on the evidence, somewhat less culpable than that of Mr Hurst and A. She delivered only one stab wound, doing so after encouragement, and was the last to join the assault. However, she had her own personal motive for the attack, and she actively participated in kicking the victim and assisting in dragging him to the embankment. The joint criminal enterprise basis of the plea meant she bore criminal responsibility for the full scope of harm caused to the victim.
The court found that strong subjective circumstances existed in the offender's favour. These included her age (19 at the time of the offence), her difficult adolescence involving drug and alcohol misuse, her consistent work history and strong work ethic, the genuine and immediate remorse she displayed after the incident, her involvement in the community since the offence, and the support of her family. Reports before the court assessed her prospects of rehabilitation as good.
On the question of the plea discount, the court acknowledged that the offender had provided a reasonably accurate account to police early on, but also noted she had minimised her own role and sought to suggest duress. The plea was entered only after the matter was listed for trial. The court settled on a discount of 15 per cent, described as relatively generous in the circumstances.
The court also found special circumstances justifying a departure from the standard ratio between the non-parole period and the balance of term, given the offender's age and rehabilitation needs.
Orders Made
- Offender convicted on both counts and sentenced as follows:
- Section 35 offence (recklessly causing grievous bodily harm in company): Starting point of 2 years, discounted to 21 months. Non-parole period of 17 months, from 15 February 2012 to 14 July 2013; balance of term of 4 months, expiring 14 November 2013.
- Section 33(1)(a) offence (wounding with intent to cause grievous bodily harm): Starting point of 3 years, discounted to 30 months. Sentence partially accumulated by 5 months, commencing 15 July 2012. Non-parole period expiring 14 July 2013; balance of term expiring 14 January 2016.
- Effective total sentence: 2 years and 11 months, with an effective non-parole period of 17 months.
- Section 166 certificate matter: Convicted and sentenced to a fixed term of 4 months imprisonment, from 15 February 2012 to 14 June 2012.
- Recommendation made that the offender be transferred to a women's detention centre in Sydney as soon as possible, and that housing at Grafton Prison be avoided.
Key Takeaways
- A conviction on the basis of joint criminal enterprise means an offender bears criminal responsibility for the full harm caused by the enterprise, even where their direct physical contribution was more limited than that of co-offenders.
- Where a guilty plea is entered late (after listing for trial) and is accompanied by an initial police account that minimised the offender's own role, a discount at or around 15 per cent may be appropriate rather than a more generous allowance.
- Strong subjective circumstances, including youth, genuine remorse, a demonstrated work ethic, good prospects of rehabilitation, and strong family support, can meaningfully influence the structure and length of a sentence even in cases of serious violence.
- The District Court treated the maximum penalties and standard non-parole periods under the Crimes Act 1900 as important sentencing guideposts, referencing them explicitly to contextualise the sentences imposed.
- Special circumstances justifying an adjusted non-parole-to-balance ratio may be found where the offender's youth and rehabilitation needs warrant a longer period of supervised release.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 33(1)(a) (wounding with intent to cause grievous bodily harm; maximum 25 years; standard non-parole period 7 years)
- Crimes Act 1900 (NSW), s 35 (recklessly causing grievous bodily harm in company; maximum 14 years; standard non-parole period 5 years)
- Crimes Act 1900 (NSW), s 166 (certificate matter, referenced in sentencing orders)
Cases cited: No cases were cited in the judgment as provided.