Citation: R v Shane Gregory Blackwell [2012] NSWDC 179
Court: District Court of New South Wales
Date: 13 February 2012
Judge(s): Cogswell SC DCJ
Background
The offender, a man aged under 30, became intoxicated at a Sydney hotel in the early hours of 13 October 2007. He persistently and inappropriately approached female patrons on the dance floor and was confronted by their colleagues. While holding a glass, he punched one of those men in the face. The blow caused such severe lacerations to the victim's eye that it had to be surgically removed.
The offender was initially convicted by a jury of the more serious offence of maliciously inflicting grievous bodily harm with intent, and sentenced by another judge to nine years imprisonment with a six-year non-parole period. That conviction was overturned on appeal. At a new trial before Cogswell SC DCJ, the offender was acquitted of the intent-based offence but had indicated a willingness to plead guilty to the lesser charge of recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900.
By the time of sentencing, the offender had already served approximately two years, five months, and twenty-eight days in custody. That period was taken into account by backdating the sentence to 3 August 2009.
Legal Issues
- What sentence was appropriate for recklessly causing grievous bodily harm, given the maximum penalty of 10 years and a standard non-parole period (SNPP) of 4 years?
- Whether the standard non-parole period should be imposed, or whether special circumstances justified a departure from it
- What weight to give to mitigating factors including the guilty plea, remorse, rehabilitation prospects, mental health history, and the spontaneous and unpremeditated nature of the offence
- How to treat the time already served in custody, including time served under the earlier (subsequently overturned) sentence
Decision
Cogswell SC DCJ imposed a total sentence of four years and four months, backdated to 3 August 2009, with a non-parole period of two years and eight months. The judge declined to impose the standard non-parole period of four years, finding that special circumstances justified a departure downward.
The judge identified several significant mitigating factors. The offence was spontaneous and unpremeditated. The offender had very few prior convictions (two for disorderly conduct in Tasmania, more than ten years earlier), presented with strong rehabilitation prospects, was assessed as unlikely to reoffend, and had the continuing support of family and a partner. A forensic psychiatrist diagnosed an alcohol abuse disorder and a depressive illness, linked in part to the death of a close friend in a motorcycle accident years before the offence. The judge acknowledged this history but declined to allow it significant weight as a mitigating factor.
A discount of 13 per cent was applied for the guilty plea. The judge noted that the sentencing statistics from the Judicial Information Research System (JIRS) indicated a relatively low sentence range for this type of offence, and that the offender had expressed genuine remorse and contrition when giving evidence. The victim's impact statement was given careful consideration, with the judge describing the loss of an eye as objectively very serious and noting the profound and lasting personal consequences for the victim, including permanent disfigurement, restricted career opportunities within the police force, and significant psychological harm.
The non-parole period of two years and eight months expired on 2 April 2012, approximately six weeks after sentencing. Because the sentence exceeded three years, the District Court had no power to order release directly. The matter was referred to the Parole Authority for determination.
Orders Made
- Total sentence of 4 years and 4 months imprisonment for the offence of recklessly causing grievous bodily harm, backdated to 3 August 2009
- Non-parole period of 2 years and 8 months, expiring on 2 April 2012
- Balance of term of 1 year and 8 months to be served on parole, subject to conditions set by the Parole Authority
- Relevant psychiatric, psychological, and pre-sentence report material to be forwarded to Corrective Services for the purposes of classification
Key Takeaways
- The District Court declined to impose the standard non-parole period of four years, finding that the offender's very good rehabilitation prospects, low risk of reoffending, spontaneous commission of the offence, and genuine remorse collectively constituted special circumstances warranting a departure.
- A guilty plea to the lesser charge, entered after acquittal on the more serious intent-based count at a retrial, attracted a discount of 13 per cent rather than the higher discount typically available for an early plea.
- Where an offender has served time in custody under a sentence that is later overturned on appeal, that period must be brought to account by backdating the fresh sentence accordingly.
- Mental health diagnoses, including depressive illness and alcohol abuse disorder, were acknowledged in the sentencing exercise but did not attract significant mitigation on their own, particularly where the link to the offending was not strongly established.
- Sentencing statistics drawn from JIRS formed part of the sentencing court's consideration of the appropriate range, and were noted to reflect a relatively low range for this category of offence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 35(2) (recklessly causing grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(c) (mitigating factors)
Cases:
- Butters v R [2010] NSWCCA 1
- R v Blackwell [2011] NSWDC 171 (the earlier acquittal on the more serious charge in the same matter)