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Local Court 10 July 2012

Director of Public Prosecutions v Razzak

[2012] NSWLC 9

Assault & violence
CRIMINAL LAW SENTENCE RECKLESS WOUNDING USE OF KNIFE NO SENTENCE OTHER THAN FULL TIME IMPRISONMENT APPROPRIATE

Citation: Director of Public Prosecutions v Razzak [2012] NSWLC 9
Court: Local Court of NSW
Date: 10 July 2012
Judge: Deputy Chief Magistrate J Culver

Background

The offender, a 21-year-old male, pleaded guilty to recklessly wounding the victim with a knife on 1 December 2011 at Kogarah. The offence arose from a street confrontation in which the offender and two companions persistently harassed and intimidated the victim, including grabbing at his pockets and blocking his attempts to leave the area.

The victim temporarily fled and returned approximately two minutes later with friends, at which point he ran towards the offender and attempted to kick him in the head. The offender then produced a knife and stabbed the victim once to the left rib area beneath the armpit. The victim was hospitalised for six days with a penetrating chest wound that caused blood and air to enter the chest cavity, requiring drainage.

At the time of the offence, the offender was subject to four good behaviour bonds imposed under section 9 of the Crimes (Sentencing Procedure) Act 1999. He also had a juvenile criminal history that included possessing a knife and armed robbery.

  • What weight, if any, should be given to provocation and excessive self-defence as mitigating circumstances?
  • What discount applied to the sentence by reason of the guilty plea?
  • Whether the offender's youth warranted a reduction in sentence for rehabilitation purposes.
  • Whether the circumstances warranted a sentence other than full-time imprisonment.
  • Whether the existing good behaviour bonds should be revoked and terms of imprisonment imposed in their place.
  • What sentence length was appropriate having regard to the aggravating circumstances, the offender's criminal history, and the applicable mitigating factors?

Decision

The court found that the offence was particularly serious for two reasons. First, the use of a knife aggravated the offence significantly. The wound to the chest area near the heart and lungs was described as close to the most serious injury possible without attracting a more serious charge. Second, the offender committed the offence while on conditional liberty under four existing good behaviour bonds.

The court gave little weight to the arguments of provocation or excessive self-defence. It was the offender who had persistently harassed the victim in the company of two others, causing the victim to seek refuge twice at a nearby restaurant and to make calls seeking help. The victim's return to confront the offender occurred only minutes after fleeing and in direct response to the offender's prior conduct. The court found it would be artificial to treat that sequence as meaningful mitigation.

The offender's youth was acknowledged as a relevant factor, but the court noted that the gravity of the offence reduced the weight available to rehabilitation when balanced against the demands of retribution and general deterrence. The guilty plea attracted a 20 per cent discount, though it was entered on the seventh court appearance and only after the prosecution withdrew a more serious charge.

The court concluded that no sentence other than full-time imprisonment could adequately reflect the seriousness of the offence and the need for both specific and general deterrence. Special circumstances were found to justify a departure from the standard statutory ratio between the non-parole and parole periods, given that this was the offender's first custodial sentence and a meaningful period of supervised parole was required upon release.

Orders Made

  • Good behaviour bond (offence 1): Bond revoked; four months imprisonment imposed, commencing 6 May 2012, eligible for release 5 September 2012.
  • Offence (2) on 9 June 2010: Convicted with no further punishment under section 10A of the Crimes (Sentencing Procedure) Act 1999 (offence carried a maximum penalty of a fine only).
  • Good behaviour bond (offence 3): Bond revoked; four months imprisonment imposed, commencing 6 June 2012, eligible for release 5 October 2012, partly concurrent and partly consecutive with offence (1).
  • Good behaviour bond (offence 4): Bond revoked; four months imprisonment imposed, commencing 6 July 2012, eligible for release 5 November 2012, partly concurrent and partly consecutive with offences (1) and (3).
  • Reckless wounding: Non-parole period of 12 months with a total term of 24 months imprisonment, commencing 6 August 2012; eligible for release on parole 5 August 2013; subject to supervision on parole upon release. Partly concurrent and partly consecutive with the bond revocation sentences.

Key Takeaways

  • Reckless wounding committed with a knife is treated as especially aggravated by NSW courts, with both specific and general deterrence given considerable weight at sentencing. A wound to the chest area, in proximity to vital organs, is regarded as approaching the upper end of seriousness for this offence.

  • Where a victim's confrontational response is triggered directly and shortly after persistent harassment by the offender, courts may afford little mitigating weight to provocation or excessive self-defence arguments on the offender's behalf.

  • A guilty plea entered late in proceedings, and only after a more serious charge was withdrawn, attracted a 20 per cent discount rather than the maximum available, consistent with the Court of Criminal Appeal's approach in R v Borkowski (2009) 195 A Crim R 1.

  • Youth does not automatically produce a reduced sentence. The Local Court applied the principle from JT v R [2011] NSWCCA 128 that the more grave the offence, the less likely rehabilitation interests will outweigh retribution and general deterrence.

  • Committing a serious offence while on multiple good behaviour bonds is a significant aggravating circumstance, and courts will revoke those bonds and impose cumulative imprisonment terms to mark the breach of conditional liberty.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15(1)

Cases:
- JT v R [2011] NSWCCA 128
- Nowak v R [2008] NSWCCA 89
- R v Borkowski (2009) 195 A Crim R 1
- R v Dickinson [2004] NSWCCA 457
- R v Doan (2000) 50 NSWLR 115
- R v Doyle (1996) 84 A Crim R 287
- R v Hampton [1999] NSWCCA 341
- R v Morris (unreported, 14 July 1995, NSWCCA)
- R v Reid (2005) 155 A Crim R 428
- R v Shepherd [2003] NSWCCA 351
- R v Tapueluelu [2006] NSWCCA 113
- R v Watt (unreported, 2 April 1997, NSWCCA)