R v Russell

Citation: R v Russell [2014] NSWDC 30
Court: District Court of New South Wales
Date: 21 February 2014
Judge(s): Berman SC DCJ

Background

The offender, a man in a relationship with the victim, attended her home on 2 July 2012 in breach of an apprehended violence order (AVO) that prohibited him from being there. While intoxicated, he smashed a glass bong into the victim's face, causing serious lacerations that required emergency surgery. Three children and a friend of one of them were present at the time.

The injuries left the victim with a permanent facial scar and ongoing nerve damage near her eye. Her treating doctor could not rule out the eventual drooping of her eyelid, with a corresponding risk to her sight. A child at the scene told the offender to leave, and he did.

The offender pleaded guilty to reckless wounding on the indictment, and was also to be sentenced for contravening the AVO, which appeared on a separate certificate. He had been in continuous custody since before the sentencing hearing, partly on remand for these matters and partly while serving a sentence for unrelated offences.

Legal Issues

• What was the appropriate head sentence and non-parole period for reckless wounding, having regard to the standard non-parole period of three years and the maximum of seven years imprisonment?
• What discount, if any, applied to reflect the utilitarian value of a guilty plea entered not at the earliest but before trial?
• Whether the Fernando principles (concerning the sentencing of offenders with histories of alcohol and drug abuse, particularly Aboriginal offenders) applied to reduce the sentence.
• Whether hardship to third parties, specifically the offender's parents, constituted exceptional circumstances warranting consideration in the sentence.
• What additional, if any, penalty should be imposed for the AVO breach charge.
• Whether special circumstances existed to justify a variation from the standard ratio between the non-parole period and head sentence.

Decision

Berman SC DCJ found that the offence was serious: it involved the use of a weapon (albeit grabbed opportunistically), was committed in the victim's home in front of children, caused significant and potentially permanent harm, and occurred while the offender was subject to an AVO and on conditional liberty. Intoxication was held to carry no mitigating weight because the offender knew his personality changed when he drank or used drugs.

The court applied the R v Fernando principles, acknowledging the offender's background of disadvantage, early departure from school, relocation to Sydney, and escalating drug and alcohol use particularly following the death of his older brother in custody. However, the court was clear that those principles did not reduce the sentence on the facts: continued drug and alcohol use was the direct cause of his ongoing offending, and there was no meaningful mitigation arising from intoxication in those circumstances.

Both personal and general deterrence were identified as significant sentencing considerations. The court observed that the offender showed limited insight into the harm his conduct caused to the victim, the children, and his own family, including his parents who had already lost a son in custody. The court treated the prospect of prison being particularly harsh for the offender, given his brother's death in custody, and the exceptional hardship to his parents, as matters going to the length and structure of the sentence rather than as reasons to avoid imprisonment.

A 15 percent discount was applied for the guilty plea, reflecting that the plea, while not entered at the first available opportunity, was offered before trial and renewed when the Crown ultimately accepted it. No additional penalty was imposed for the AVO breach, given its close factual connection to the wounding offence and the fact that the victim had consented to the offender's presence at the time.

Orders Made

• For reckless wounding: imprisonment with a non-parole period of two years and six months, commencing 1 June 2013 and expiring 31 December 2015, and a head sentence of five years.
• For contravening the AVO: a fixed term of six months imprisonment, also commencing 1 June 2013, with no additional punishment beyond that term.
• The court recommended the offender be permitted to serve his sentence as close as possible to his parents in Walgett.

Key Takeaways

• The District Court confirmed that intoxication carries no mitigating weight where an offender is aware that alcohol and drug use alters their behaviour and leads them to commit offences.
• Under the R v Fernando principles, a background of disadvantage and substance abuse is relevant context for sentencing, but does not automatically reduce a sentence, particularly where substance abuse is the direct and continuing cause of the offending.
• Hardship to third parties can be taken into account in sentencing, but the court emphasised this occurs only in rare cases where that hardship is exceptional. Here, the parents' situation, having already lost one son in custody, was treated as meeting that threshold.
• Special circumstances justifying a longer parole period than the statutory default were established by the combination of the offender's extended continuous custody and the need for structured supervision upon release.
• A guilty plea entered before trial, though not at the first available opportunity, attracted a 15 percent utilitarian discount, with the precise discount reflecting the stage at which the plea was ultimately accepted.

Legislation and Cases Referenced

Cases:
- R v Fernando (1992) 76 A Crim R 58 (principles on sentencing Aboriginal offenders with histories of alcohol abuse and disadvantage)

Legislation:
- The AVO breach charge was dealt with pursuant to a s 166 certificate (District Court Act 1973 (NSW) or equivalent procedural provision for certifying Local Court matters to the District Court for sentencing)