Citation: R v Munro [2015] NSWDC 353
Court: District Court of New South Wales
Date: 1 October 2015
Judge(s): Cogswell SC DCJ
Background
The offender, an Indigenous woman aged 31, pleaded guilty to reckless wounding under s 35(4) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is seven years imprisonment, with a standard non-parole period of three years.
The offence arose from an incident on 4 January 2015 at the home the offender shared with her mother in Coledale. The offender arrived at the door demanding entry and a bottle, threatening to stab her mother. An altercation followed, and the offender stabbed her mother in the chest with a pair of scissors. The mother suffered a penetrating wound through the chest wall into the pleural cavity, causing a collapsed lung. The offender left the scene; her mother collapsed in the street and was hospitalised.
The offender surrendered to police the following day. She had been in custody since 11 May 2015, and her sentence was backdated to that date.
Legal Issues
- How serious was this particular instance of reckless wounding on the objective scale, and what weight should be given to the location of the wound and the place the offence occurred?
- What weight should be given to the offender's prior record, including recent convictions for personal violence offences?
- How should the Fernando principles apply to an Indigenous offender with a background of family violence, substance abuse, and social disadvantage?
- What discount applied for a guilty plea at the earliest available opportunity?
- Whether special circumstances existed to justify altering the standard ratio between the head sentence and the non-parole period?
Decision
Objective seriousness: Cogswell SC DCJ accepted the prosecution's submission that the offence sat above the midrange of objective seriousness. The wound was inflicted to a particularly vulnerable part of the body: the chest. It penetrated through the chest wall into the pleural cavity, causing a collapsed lung. The court noted that wounds in this location carry a risk of death if the heart is struck. The offence also occurred at the victim's home, which the court treated as an aggravating factor. Even though the offender also resided there, the victim was entitled to feel safe in her own home.
Prior record: The offender's criminal history began in the Children's Court and escalated to offences of personal violence as an adult. Notably, she had been sentenced twice for assault occasioning actual bodily harm in January 2014, approximately one year before this offence. The court treated this record as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999.
Fernando principles and personal circumstances: Drawing on R v Fernando (1992) and Bugmy v The Queen (2013), the court accepted defence submissions that the offender's conduct had to be understood in the context of her upbringing. She had been exposed to violence, alcohol, and drug abuse throughout her formative years and developed her own addictions as a result. The court found these circumstances relevant to moral culpability, while also noting that her record of personal violence required that some additional weight be given to general deterrence.
Guilty plea, remorse, and rehabilitation: The court applied a 25% discount for the guilty plea at the earliest available opportunity. The offender gave evidence, expressed remorse, and apologised to her mother. She had been undertaking a rehabilitation program in custody, had previously attempted community-based rehabilitation programs (though with mixed results), and had made inquiries about programs available upon release. Her father gave evidence that he would provide stable accommodation. The court found fair prospects of rehabilitation and identified special circumstances justifying a reduction in the non-parole period, given the extended supervision the offender would need to address her drug and alcohol issues.
Orders Made
- The offender was convicted of reckless wounding under s 35(4) of the Crimes Act 1900 (NSW).
- Sentenced to 3 years and 4 months imprisonment, commencing 11 May 2015 and expiring 10 September 2018.
- Non-parole period of 2 years, commencing 11 May 2015 and expiring 10 May 2017.
- Balance of sentence (parole period): 1 year and 4 months, from 11 May 2017 to 10 September 2018.
Key Takeaways
- A stab wound to the chest with scissors, causing lung collapse, placed this reckless wounding above the midrange of objective seriousness, even though the offence did not involve a weapon typically associated with more lethal intent.
- Under s 21A of the Crimes (Sentencing Procedure) Act 1999, a recent prior record of personal violence offences operates as a statutory aggravating factor and was given explicit weight in the sentencing exercise.
- The Fernando principles, affirmed in Bugmy v The Queen, required the court to consider how an Indigenous offender's background of family violence, substance abuse, and deprivation informed her moral culpability, without that consideration operating as a simple mitigation or an excuse for the offending.
- Committing an offence against a person at their home can constitute an aggravating factor even where the offender also resided at that address, because the victim retains an entitlement to safety and security there.
- Special circumstances justifying a reduced non-parole period can arise where an offender requires an extended period of post-release supervision to address entrenched drug and alcohol dependency, particularly where the offender has already taken steps toward rehabilitation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 35(4) (reckless wounding)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating and mitigating factors)
Cases:
- R v Fernando (1992) 76 A Crim R 58
- Bugmy v The Queen (2013) 249 CLR 571