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District Court 12 June 2014

R v Wainwright

[2014] NSWDC 368

Assault & violence
CRIMINAL

Citation: R v Wainwright [2014] NSWDC 368
Court: District Court of New South Wales
Date: 12 June 2014
Judge: Judge S Norrish QC

Background

The offender pleaded guilty to causing grievous bodily harm with intent to do grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900. The offence occurred on 16 January 2010 at Mortdale, New South Wales. The original indictment had charged the more serious offence of causing grievous bodily harm with intent to murder; the guilty plea was accepted in discharge of that indictment.

The victim, aged 19 at the time, had been in a relationship with the offender. Following a late-night argument at their shared residence, the offender pushed her out the front door, causing her to fall and lose consciousness. He then stomped on her head multiple times while she lay unmoving on the concrete, and struck her with a clay pot. The attack was witnessed by housemates, one of whom called triple 0 and physically intervened.

Sentencing was significantly delayed because the offender was found unfit to stand trial and came under the jurisdiction of the Mental Health Review Tribunal for a period. He was also subject to a separate, unrelated charge of stalking or intimidation, which was ultimately dismissed.

  • What was the appropriate sentence, having regard to the maximum penalty of 25 years and the standard non-parole period of seven years under the Crimes (Sentencing Procedure) Act 1999?
  • How should the court calculate and apply the pre-sentence custody period, including custody attributable to an unrelated (and later dismissed) charge?
  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act 1999 to justify a longer than usual balance of sentence relative to the non-parole period.
  • What weight should be given to the offender's mental health history, background disadvantage, remorse, and utilitarian value of the guilty plea?

Decision

Judge Norrish found the offence to be a serious one, noting that the stomping of an unconscious victim's head constituted the grievous bodily harm upon which the Crown relied, and that this occurred in the presence of witnesses who intervened. The offender's claim that the victim had been trying to kill him was rejected as unsupported by any evidence.

The court determined that pre-sentence custody totalling two years, seven months and 12 days should be taken into account. This included not only the period directly referable to the present offence but also the period between 25 October 2013 and 16 December 2013, during which the offender was held on the unrelated charge that was later dismissed. The sentence was backdated accordingly to 31 October 2011.

Judge Norrish applied a discount for the utilitarian value of the guilty plea, consistent with R v Thomson; R v Houlton, and had regard to the principles from Bugmy v R concerning the relevance of background disadvantage and its ongoing impact on moral culpability. The court accepted that the offender had expressed remorse and that, subject to supervision, he did not pose a present danger to the community. Nonetheless, specific deterrence remained a relevant consideration given aspects of the offender's conduct.

A finding of special circumstances was made, warranting an extended period of supervision on parole. The court identified the offender's need for gradual reintegration into the community, access to mental health and psychological treatment, and guidance around alcohol use as the basis for that finding.

Orders Made

  • The offender was convicted of causing grievous bodily harm with intent to do grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900.
  • Sentenced to a total term of eight years and one month, comprising:
  • Non-parole period of five years, commencing 31 October 2011 and expiring 30 October 2016.
  • Balance of sentence of three years and one month, expiring 29 November 2019.
  • Special circumstances found, resulting in a balance of sentence exceeding the standard one-third ratio.
  • Whether the offender is released at the expiry of the non-parole period remains a matter for the Parole Authority.

Key Takeaways

  • Pre-sentence custody arising from an unrelated charge that is subsequently dismissed can still be taken into account in sentencing, where the circumstances warrant it, as the District Court did here in including the period between 25 October and 16 December 2013.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be supported by an offender's mental health needs, the requirement for supervised reintegration into the community, and the need for ongoing treatment for alcohol misuse.
  • Under Bugmy v R, background disadvantage and mental health difficulties remain relevant to the assessment of moral culpability, even for serious offending, though they do not displace other sentencing objectives such as specific deterrence.
  • The standard non-parole period of seven years operates as a guideline rather than a mandatory benchmark, consistent with the High Court's approach in Muldrock v R, and the sentencing court retains full discretion to weigh all relevant factors.
  • Significant procedural delays attributable to findings of unfitness to stand trial are treated as no fault of the offender, and the court acknowledged this as a relevant contextual factor in the overall sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Bugmy v R [2013] HCA 37
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Markarian v R (2005) 228 CLR 357
- Muldrock v R (2011) 244 CLR 120
- Munda v Western Australia [2013] HCA 38
- R v Elturk [2014] NSWCCA 61
- R v Engert (1995) 84 A Crim R 67
- R v Hemsley [2004] NSWCCA 228
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Totten [2003] NSWCCA 207