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Supreme Court 24 October 2014

R v Dacey

[2014] NSWSC 1452

Assault & violence
CRIMINAL LAW SENTENCE GRIEVOUS BODILY HARM WITH INTENT JUDGE ALONE TRIAL USE OF WEAPON ELEVATES SERIOUSNESS RANGE

Citation: R v Dacey [2014] NSWSC 1452
Court: Supreme Court of New South Wales
Date: 24 October 2014
Judge(s): R A Hulme J

Background

The offender, a 27-year-old man at the time of the offence, was convicted following a judge-alone trial of causing grievous bodily harm with intent under s 33 of the Crimes Act 1900 (NSW). The charge arose from a stabbing that occurred in the early hours of 9 August 2011, the day after the offender had been released from prison on parole. The victim died in hospital five days later, but the court acquitted the offender of murder after finding a reasonable doubt as to whether the stabbing had made a substantial or significant contribution to the death.

The stabbing occurred during an argument over a small quantity of drugs and $350. The offender, his brother, and the victim had spent the previous day together consuming drugs. When the victim refused to hand over newly acquired drugs until he was paid, a physical altercation broke out. The offender, who had been asleep and was woken by the argument, intervened. The victim likely produced a knife first, but was losing the fight and fled to a lower level of the building. The offender pursued him and stabbed him six times, with one wound penetrating the left lung, the pericardial sac, and nicking a small artery on the surface of the heart.

The sentencing proceedings took place more than three years after the offence. The offender had a lengthy criminal record, had spent roughly two-thirds of the preceding twelve years in custody, and had committed the present offence within 24 hours of his release on parole.

  • What was the appropriate objective seriousness of the offence, given the spontaneous nature of the violence, the use of a knife, and the degree of harm caused?
  • How should the offender's substantial criminal history, including his parole status at the time of the offence, affect the sentence?
  • What weight should be given to signs of remorse and the three-year delay in resolving the proceedings?
  • How should the sentence be structured in relation to sentences the offender was already serving, having regard to the principle of totality?
  • Whether special circumstances existed to justify adjusting the standard ratio between the non-parole period and the balance of the sentence.

Decision

Hulme J assessed the objective seriousness of the offence as falling slightly below the mid-range. A potentially lethal weapon was used, which elevated the seriousness because weapon use is not a necessary element of the offence. The intention to cause serious harm was formed spontaneously, there was no pre-existing animosity between the offender and the victim, and the trigger for the violence was trivial. The victim had been making a relatively good recovery before his sudden death, which was a relevant factor, though the wound had in fact penetrated the pericardial sac and cut an artery on the heart's surface.

The offender's personal circumstances weighed heavily in the sentencing exercise. His criminal history, dating back to 1999, included persistent offending, multiple periods of imprisonment, and a consistent pattern of breaching parole. Committing the offence within 24 hours of release on parole was identified as a serious aggravating factor. These matters led Hulme J to place greater emphasis on personal deterrence and retribution. The offender's intoxication by drugs at the time was expressly not treated as a mitigating factor, in accordance with s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The court acknowledged some signs of remorse and a three-year delay in the resolution of the proceedings, which had subjected the offender to a prolonged period of uncertainty. The Crown had also rejected an offer by the offender to plead guilty, which was a further relevant consideration. Prospects of rehabilitation were assessed as low. The victim's sister provided a victim impact statement, which Hulme J acknowledged publicly and with condolence, while noting the constraints on how it could be taken into account in the sentencing exercise.

On the question of accumulation, the court found that the offences for which the offender had already been sentenced in October 2011 were too serious to be completely subsumed by the present sentence, but the principle of totality required partial accumulation. Hulme J backdated the sentence to 4 October 2012 and found special circumstances to adjust the non-parole proportion, given the one-year accumulation, so that overall proportions were maintained.

Orders Made

  • The offender was convicted of causing grievous bodily harm with intent.
  • Sentenced to imprisonment with a non-parole period of 5 years and a balance of term of 2 years (total sentence of 7 years).
  • The sentence was backdated to 4 October 2012, with the offender eligible for release on parole on 3 October 2017.
  • A finding of special circumstances was made to reflect the partial accumulation upon prior sentences.
  • A copy of Dr Bruce Westmore's psychiatric report was directed to accompany the warrant.

Key Takeaways

  • Spontaneous formation of intent, even without premeditation or pre-existing animosity, does not necessarily place an offence of grievous bodily harm with intent below the mid-range of seriousness, particularly where a weapon is used.
  • Under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW), drug-induced intoxication at the time of an offence does not operate as a mitigating factor in sentencing.
  • Committing a serious offence within 24 hours of release on parole, combined with a history of never completing a parole period without breach, constitutes a significant aggravating factor that increases the weight given to personal deterrence and retribution.
  • A prolonged delay in the resolution of proceedings (here, approximately three years) and the Crown's rejection of a guilty plea offer are both matters a sentencing court may take into account in the offender's favour.
  • Where a sentence is partially accumulated upon existing sentences, a finding of special circumstances to adjust the non-parole proportion may be warranted to maintain overall proportionality in the total period to be served.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33 (causing grievous bodily harm with intent; maximum penalty 25 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including the standard non-parole period of 7 years for the offence and s 21A(5AA) (intoxication not a mitigating factor)

Cases:
- R v Dacey, Ian; R v Dacey, Lee [2014] NSWSC 1201 (the judge-alone trial decision on liability)