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District Court 28 August 2015

R v Jeremiah

[2015] NSWDC 316

Assault & violence
CRIMINAL LAW SENTENCE PARTICULAR OFFENCES OFFENCE AGAINST THE PERSON VICTIM WOUNDED WITH HAMMER SERIOUS INJURIES REQUIRING SURGERY

Citation: R v Jeremiah [2015] NSWDC 316
Court: District Court of New South Wales
Date: 28 August 2015
Judge: Cogswell SC DCJ

Background

The offender, a young man aged 18 at the time of the offending, confronted a resident at a Blacktown unit complex while armed with a hammer. He forced his way into the resident's unit, placed the resident in a headlock, and then carried out a sustained hammer attack on a second occupant, striking him repeatedly to the head, body, and legs.

The victim of the hammer attack suffered serious injuries including deep scalp lacerations, wounds breaching the abdominal cavity, bleeding from the kidney and spleen, and urinary tract injuries requiring surgical intervention including insertion of a ureteric stent. He required ongoing daily blood tests to monitor blood loss, though his prognosis was ultimately described as good.

The offender was arrested on the day of the attack and remained in custody from that point. He entered pleas of guilty to two offences: wounding with intent to cause grievous bodily harm (under s 33(1)(a) of the Crimes Act 1900) and aggravated entering a building with intent (under s 111(2) of the same Act). A common assault charge arising from the same occasion was taken into account on a Form 1.

  • Where to place these offences in the range of objective seriousness, having regard to the circumstances of the attack
  • What weight to give the offender's youth, deprived background, and diagnosed psychological conditions in mitigation
  • What weight to give the offender's prior criminal record and the aggravating circumstance that offences were committed whilst on probation
  • What discount to apply to each sentence for the guilty pleas, given that they were entered at different times
  • Whether special circumstances existed to justify adjusting the ratio between the head sentence and the non-parole period

Decision

Cogswell SC DCJ assessed the offences as not far below the middle of the range of objective seriousness. The wounding offence was particularly serious given the sustained nature of the attack, the use of a hammer, and the significant injuries inflicted inside the victim's own home. The aggravated entry offence, committed on the same occasion, added to the overall gravity.

The court accepted that the offender's deprived background carried genuine mitigating weight. The psychological report described physical abuse by his mother and her partners, near-sexual assault by a relative, early onset alcohol and drug use, and diagnoses of ADHD, oppositional defiant disorder, major depressive disorder, and anxiety. Drawing on the High Court's guidance in Bugmy v The Queen, the court recognised that such a background can diminish moral culpability, even for serious violence.

However, the mitigating force of those matters was substantially tempered by several aggravating factors. The offences were committed whilst the offender was on probation, the attack occurred in the victim's home, and the offender already had a significant criminal history for someone of his age, including robbery in company, assault occasioning actual bodily harm, and affray. The court gave only limited weight to the expressions of remorse recorded in the psychological report, noting that the report was unverified by sworn evidence.

Different guilty plea discounts applied to each offence: 25% for the wounding charge and 10% for the aggravated entry charge, reflecting the different times at which the pleas were entered. The court found special circumstances existed to extend the parole period beyond the statutory default, citing the offender's youth, his complex personal history, and his need for structured support upon release.

Orders Made

  • Aggregate sentence of six years imprisonment imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999
  • Non-parole period of three and a half years, commencing 25 September 2013 and expiring 24 March 2017
  • Balance of term of two and a half years, commencing 25 March 2017 and expiring 24 September 2019
  • First eligibility date for parole fixed at 24 March 2017
  • Common assault (Form 1) taken into account in sentencing for the aggravated entry offence
  • Court directed that the psychological report (Exhibit 1) be provided to Corrective Services

Key Takeaways

  • Sentencing courts must grapple with competing purposes when a young offender with a severely deprived background commits serious violence: the principles from Bugmy v The Queen confirm that such a background can reduce moral culpability, but this does not automatically outweigh retributive and protective considerations.
  • A prior record for violence, even where mostly dealt with in the Children's Court, remains a relevant aggravating factor and limits the mitigating weight available to a young offender.
  • Unverified psychological reports, where the history is not supported by sworn evidence, attract reduced evidentiary weight, particularly when relied on to establish remorse.
  • Where guilty pleas are entered at different times across multiple charges, different discount rates will apply to each charge separately, reflecting when the utilitarian benefit to the justice system was actually realised.
  • Special circumstances justifying an extended parole period are available where an offender's youth and complex background indicate a heightened need for supervision and support upon re-entry into the community.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 61, 111(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 32, 53A

Cases:
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Adams v R [2011] NSWCCA 47
- R v Porter [2015] NSWCCA 59