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District Court 14 February 2012

R v A; R v Hurst

[2012] NSWDC 186

Assault & violence
CRIMINAL LAW SENTENCE

Citation: R v A; R v Hurst [2012] NSWDC 186
Court: District Court of New South Wales
Date: 14 February 2012
Judge(s): Murrell SC DCJ

Background

Two offenders, referred to here as Hurst and A, pleaded guilty to two offences arising from a violent assault on a single victim at an isolated location near the Queensland-New South Wales border in April 2010. Hurst was 20 years old at the time; A was 17, making her a juvenile at the time of the offences. A third participant, Ms Pankhurst, was also involved but was dealt with separately.

The attack followed a failed drug transaction in Brisbane. Hurst had borrowed money to purchase ecstasy tablets and travelled with the victim, A, and Pankhurst to Brisbane in the victim's vehicle. When the deal fell through, the group drove back toward Casino and diverted to a remote area known as the Border Loop. There, Hurst lured the victim away from the vehicle under the pretence of a private conversation, then attacked him from behind.

The assault was prolonged and serious. Hurst stabbed the victim multiple times in the back, and A and Pankhurst also participated, including further stabbings. The victim sustained five stab wounds to the back, a stab wound to the side, extensive bruising and abrasions, and a fractured left jaw requiring surgical repair. After being pushed down a steep embankment, the victim remained there in fear until the offenders left, then walked several kilometres injured before finding help.

  • What sentence was appropriate for each offender for the offence of wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900, which carries a maximum of 25 years and a standard non-parole period of seven years?
  • What sentence was appropriate for the offence of recklessly causing grievous bodily harm in company under s 35, which carries a maximum of 14 years and a standard non-parole period of five years?
  • What discount should apply to each offender for their guilty plea, and, in A's case, for assistance provided to police?
  • What special sentencing considerations applied to A as a juvenile offender?
  • What was the appropriate treatment of an additional offence of being carried in a conveyance under s 154A?

Decision

The court assessed both offences as serious, noting elements of planning and premeditation, the use of a knife, the prolonged nature of the attack, the taunting of the victim throughout, and the remote location where the victim was left injured and alone. The court accepted that Hurst bore primary responsibility as the instigator and main attacker, while A was a willing and active participant who delivered cruel taunts, incited Pankhurst to stab the victim, and uttered the ambiguous phrase "finish it," which her co-offenders understood as a direction to kill.

For Hurst, the court adopted a 20 percent discount on both offences for his guilty plea, as recommended by the Crown. For A, a combined discount of 30 percent was applied to reflect both her guilty plea and her substantial early assistance to police, including disclosing the location of the knife (which contained the victim's blood), identifying discarded clothing, and providing a statement implicating the others. The Crown did not oppose this combined discount.

In sentencing A, the court identified several special circumstances warranting a longer-than-standard ratio of supervision to custody: her youth, the fact that she had not previously been imprisoned, her responsibilities as a mother, and her need for extended community support following release. The court directed under s 19 of the Children (Criminal Proceedings) Act that A's non-parole period be served as a juvenile offender.

For the additional carrying-in-conveyance offence arising from a s 166 certificate, the court imposed concurrent fixed terms for both offenders, on the basis that a concurrent sentence was appropriate given the overall sentencing structure.

Orders Made

Hurst:
- Offence under s 35: sentence of 3 years 6 months imprisonment, with a non-parole period of 2 years, commencing 14 February 2012.
- Offence under s 33(1)(a): sentence of 4 years 2 months imprisonment, accumulated by 6 months, commencing 14 August 2012, with a non-parole period of 2 years expiring 13 August 2014.
- Effective total: 4 years 8 months with a non-parole period of 2 years 6 months.
- Additional s 154A offence: fixed term of 6 months concurrent with the s 35 sentence.

A:
- Offence under s 35: sentence of 18 months imprisonment, commencing 14 February 2012, with a non-parole period of 12 months expiring 13 February 2013.
- Offence under s 33(1)(a): sentence of 25 months imprisonment, accumulated by 4 months, commencing 14 June 2012, with a non-parole period of 8 months expiring 13 February 2013.
- Effective total: 2 years 5 months with a non-parole period of 12 months.
- Non-parole period directed to be served as a juvenile offender pursuant to s 19 of the Children (Criminal Proceedings) Act.
- Additional s 154A offence: fixed term of 3 months concurrent with the s 35 sentence.

Key Takeaways

  • A combined discount of 30 percent for guilty plea and assistance to authorities was accepted as appropriate where a juvenile offender provided early, substantive assistance including locating a weapon, identifying discarded evidence, and making a statement implicating co-offenders.
  • The District Court treated the s 33(1)(a) wounding-with-intent offence as the principal offence for accumulation purposes, reflecting its greater seriousness relative to the s 35 offence.
  • Where a juvenile is convicted of a serious children's indictable offence and sentenced as an adult, the court retains power under s 19 of the Children (Criminal Proceedings) Act to direct that the non-parole period be served as a juvenile offender.
  • Special circumstances justifying a reduced non-parole period relative to the total term included youth, no prior imprisonment, parental responsibilities, and need for extended post-release supervision.
  • Concurrent fixed-term sentences were imposed for the additional carrying-in-conveyance offence, consistent with the principle of not disproportionately increasing the total effective sentence through accumulation of a lesser ancillary charge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(a) (wounding with intent to cause grievous bodily harm), s 35 (recklessly causing grievous bodily harm in company), s 154A (being carried in a conveyance)
- Children (Criminal Proceedings) Act (NSW), s 19

Cases cited: None stated in the judgment.