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District Court 15 October 2015

R v PETERS

[2015] NSWDC 325

Assault & violence
CRIMINAL

Citation: R v Peters [2015] NSWDC 325
Court: District Court of New South Wales
Date: 15 October 2015
Judge: Judge S Norrish QC

Background

The offender, a 22-year-old man at the time of the offending, pleaded guilty to wounding a stranger with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900. The offence occurred in Bathurst on 21 January 2014. The offender had spent the evening in an agitated and erratic state, armed with knives, and heavily affected by both methylamphetamine and alcohol.

The victim was a man returning home by taxi with his wife. As the victim stepped out of the cab and asked the offender what his problem was, the offender struck him without warning, punching a knife into the left side of the victim's chest. There was no evidence that the offender had targeted the victim specifically beforehand.

Between the offence and sentencing, the offender spent time both in actual custody and in two residential rehabilitation programs, Odyssey House and One80TC, under Supreme Court bail granted to facilitate rehabilitation. He did not commit further offences during that period, though he was discharged from both programs at various points before ultimately returning to custody.

  • What was the appropriate sentence for a serious wounding offence committed impulsively under heavy intoxication?
  • How should the 25% guilty plea discount (following Thomson and Houlton) be applied?
  • Whether time spent in residential rehabilitation facilities constituted "quasi-custody" warranting a sentencing credit, and if so, how much credit was appropriate?
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the balance of the sentence?

Decision

Judge Norrish characterised the offence as objectively serious, noting the use of a knife to the chest area and the permanent nature of the risk posed to the victim. However, his Honour accepted that the attack was impulsive rather than planned, and that the offender's severe intoxication at the time significantly, though not completely, impaired his capacity to form deliberate intent. The offender had said words to the effect of "I'm going to stab someone" earlier in the evening, but the court found it could not conclude he had targeted the victim in particular.

On the question of quasi-custody, his Honour accepted that time spent in a residential rehabilitation facility under strict conditions could be treated as analogous to custody for sentencing purposes, consistent with principles drawn from DPP v De La Rosa and related authorities. The court determined that eight months and seventeen days had been spent in residential programs, and applied a credit of four months toward the sentence to reflect the restrictive nature of that time.

Special circumstances were found to exist, given the offender's youth (he was 23 at sentencing), his significant history of drug dependency, and the need for an extended period of supervised parole to support rehabilitation and reintegration. This justified a non-parole period that was proportionally shorter than the statutory norm relative to the overall head sentence.

The court also took into account the offender's dysfunctional upbringing, his drug and alcohol history, and evidence from his sister about his more settled behaviour during the relevant period. His Honour recommended, though noted he had no power to order, that the offender receive drug and alcohol counselling and appropriate psychological treatment while in custody.

Orders Made

  • The offender was convicted of wounding with intent to cause grievous bodily harm.
  • Sentenced to a total term of imprisonment comprising:
  • Non-parole period of 2 years and 7 months, commencing 5 December 2014 and expiring 4 July 2017 (eligible for release to parole on that date).
  • Balance of sentence of 2 years and 8 months, expiring 3 March 2020.
  • The court recommended (without formal power to order) that the offender receive drug and alcohol counselling and appropriate medical and psychological treatment while in custody.

Key Takeaways

  • Time spent in a residential rehabilitation facility under bail conditions that substantially restrict liberty may be treated as quasi-custody, attracting a sentencing credit, though the credit is not necessarily equivalent to the full period served in the facility.
  • Where a defendant commits an impulsive offence while heavily intoxicated, heavy intoxication can reduce moral culpability to a degree, even for a serious wounding, without eliminating the objective gravity of the conduct.
  • A 25% discount for a guilty plea entered at the first reasonable opportunity reflects the utilitarian value of the plea, consistent with the Court of Criminal Appeal's guideline in R v Thomson and Houlton.
  • Special circumstances justifying an extended supervision period on parole can be established by a combination of youth, entrenched drug and alcohol dependency, and the rehabilitative needs of a young offender.
  • The District Court confirmed it has no power to order Corrective Services to provide specific treatment programs; recommendations can be made but compliance rests with the relevant authority.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5

Cases:
- DPP v De La Rosa [2010] NSWCCA 194
- R v Engert (1995) 84 A Crim R 67
- Muldrock v The Queen (2011) 244 CLR 120
- R v Blackman & Walters [2001] NSWCCA 212
- R v Thomson and Houlton [2000] NSWCCA 309
- R v Way [2004] NSWCCA 131
- Yardley v Betts (1979) 22 SASR 108