Citation: R v Mason [2014] NSWDC 380
Court: District Court of New South Wales
Date: 6 March 2014
Judge(s): Judge S Norrish QC
Background
The offender, a 26-year-old Aboriginal man from Moruya on the NSW South Coast, was sentenced after pleading guilty to recklessly wounding his long-term partner. The offence occurred on 8 January 2013 at Matraville, only 18 or 19 days after the offender had been released to parole following an earlier custodial sentence.
The offender stabbed the victim twice with a knife, causing lacerations to her left arm and left shoulder requiring sutures, and choked her by placing his hands around her throat. The victim was treated at hospital but not admitted. A related assault occasioning actual bodily harm was placed on a Form 1 to be taken into account at sentencing.
The offender had been committed for trial on the more serious charge of wounding with intent to cause grievous bodily harm. After several days of negotiation, and two days after the matter was listed for trial, he pleaded guilty to the lesser alternative charge of reckless wounding under section 35(4) of the Crimes Act 1900.
Legal Issues
- What discount should apply to the guilty plea, given it was not entered at the first reasonable opportunity?
- How should the Form 1 matter be approached in the sentencing exercise?
- What was the significance of committing the offence while on parole?
- Whether special circumstances existed justifying a non-parole period below the statutory standard?
- How should the offender's Aboriginality, disadvantaged background, and psychiatric diagnoses be weighed in the sentencing exercise?
- What was the appropriate sentence, including commencement date, given the interaction with the revoked parole period?
Decision
Guilty plea discount: Applying the guideline judgment in R v Thomson and Houlton, the court fixed the utilitarian discount at 15 percent. The plea was not entered at the first reasonable opportunity, having been negotiated over several days and entered two days after the trial date. However, the plea carried practical value because the victim, who was the offender's partner, had not been fully cooperative with the prosecution (at [4]).
Form 1 matter: Consistent with the Court of Criminal Appeal's guideline in Attorney General's Application (No. 1) of 2002, the court treated the assault occasioning actual bodily harm as intimately connected in time and criminality with the principal offence. The Form 1 matter required greater weight to be given to personal deterrence and community retribution, though the close factual connection meant much of the related criminality was subsumed into the moral culpability assessed for the principal offence (at [5]-[6]).
Objective seriousness and aggravating factors: The offending was assessed as below the middle range of seriousness. It was impulsive and unplanned, the wounds did not cause permanent disability or serious disfigurement, and the offender had been consuming drugs and was sleep-deprived at the time. Nonetheless, the court found that by the time the offender placed his hands around the victim's throat, he must have known it was his partner (at [16]-[19]). The commission of the offence while on parole, having been released only days earlier, was a significant aggravating factor under section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (at [2]).
Aboriginality and subjective circumstances: Applying the principles confirmed by the High Court in Bugmy v R and Munda v R, the court accepted that the offender's Aboriginal background, disadvantaged upbringing, exposure to domestic violence, and probable undiagnosed ADD were relevant mitigating matters requiring individualised consideration. The psychiatrist's diagnoses of childhood conduct disorder, probable anti-social personality disorder, and substance use disorder were also taken into account, though they pointed to a guarded prognosis rather than a basis for leniency in isolation (at [24]-[41]).
Special circumstances: The court found special circumstances under section 44 of the Crimes (Sentencing Procedure) Act 1999 on two bases: the sentence would be partly accumulative on the balance of the offender's revoked parole, and the Probation and Parole Service officer's assessment supported the benefit of an extended period of supervised community reintegration to address drug dependency and anger management (at [13]).
Commencement date: To avoid double-counting the parole revocation as both an aggravating factor and a period counted against the new sentence, the court backdated the sentence to commence on 18 September 2013, the date the guilty plea was entered (at [27]).
Orders Made
- The offender was convicted of recklessly wounding the victim contrary to section 35(4) of the Crimes Act 1900, with the Form 1 assault occasioning actual bodily harm taken into account.
- Sentenced to a total term of imprisonment of 3 years, comprising a non-parole period of 16 months commencing 18 September 2013 and expiring 17 January 2015, with a balance of sentence of 20 months expiring 17 September 2016.
- Directed to be released to parole on 17 January 2015, with conditions to be determined by the Parole Authority.
Key Takeaways
- Committing an offence while on parole, particularly within weeks of release and before the parole authorities have had any meaningful opportunity to assist, constitutes a significant statutory aggravating factor under section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (at [2]).
- Under the Thomson and Houlton guideline, a guilty plea entered after negotiations and two days after a trial date attracts a reduced utilitarian discount of 15 percent rather than the maximum available, reflecting the lateness of the plea (at [4]).
- Following Bugmy v R and Munda v R, sentencing courts are required to give individualised weight to an Aboriginal offender's disadvantaged background, exposure to violence, and associated social dislocation as mitigating factors, provided the evidence supports their relevance to the particular offender (at [24]-[34]).
- A finding of special circumstances may rest on the cumulative operation of two independent factors: the partly accumulative nature of the new sentence on a revoked parole balance, and expert evidence supporting the offender's need for extended supervised reintegration into the community (at [13]).
- Where a Form 1 offence is closely connected in time and criminality to the principal offence, the court must still give greater weight to personal deterrence and retribution as required by the Attorney General's Application (No. 1) of 2002 guideline, even if much of the related criminality is practically subsumed into the principal offence (at [5]-[6]).
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999
- Crimes Act 1900
Cases
- Attorney General’s Application (No. 1) of 2002, (2002) 56 NSWLR 147
- Bugmy v R [2013] HCA 37
- R v Callaghan (2006) 160 A Crim R 145
- Muldrock v R (2011) 144 CLR 120
- Munda v R [2013] HCA 38
- Neal v The Queen [1982] HCA 55
- R v Thomson and Houlton [2000] NSWCCA 309