Citation: Regina v Michael Phillip Bottom; Regina v Phillip Camilli [2016] NSWDC 210
Court: District Court of New South Wales
Date: 12 September 2016
Judge: Judge AC Scotting
Background
Two offenders were sentenced following guilty pleas entered in the Local Court to a range of offences arising from two connected incidents on the evening of 5 September 2015 in Haberfield, Sydney. The first incident began when one offender, Bottom, verbally challenged occupants of a passing vehicle at traffic lights, leading both offenders to approach the car, attempt to assault its occupants, and cause physical damage to the vehicle.
The second and more serious incident occurred approximately an hour later when the vehicle's occupants returned to the unit block with additional family members. The offenders, armed with knives, confronted the group. Bottom stabbed one of the victims across the forehead, shoulder and hand, causing lacerations requiring hospital treatment. Camilli struck the same victim on the cheek with the butt of his knife.
Following the confrontation, police attended and established a perimeter. Bottom retreated into the roof cavity of the unit block, where he disabled a police camera and threw broken roof tiles at a constable on the ground. He resisted arrest in the early hours of the following morning before being subdued with a taser.
Legal Issues
- The appropriate sentences for Bottom on four counts (damage property in company, throwing a missile at police, damage property, and reckless wounding in company), together with Form 1 matters
- The appropriate sentence for Camilli on one count of affray, together with a Form 1 matter for damage property in company
- The application of the parity principle, given that both offenders were to be sentenced together
- The relevance of mitigating factors including guilty pleas, personal history, mental health, substance abuse, Indigenous background (in Bottom's case), and remorse
- Whether special circumstances existed to justify a non-parole period departing from the statutory ratio
- Eligibility of Bottom for referral to the Drug Court
Decision
Judge Scotting assessed the objective seriousness of the offending as significant, particularly for Bottom. The reckless wounding in company (Count 4) was treated as the principal offence and attracted the most substantial penalty. The use of a knife during a confrontation that Bottom's own conduct had provoked, combined with his subsequent conduct on the roof, weighed heavily in the assessment of culpability.
The Court acknowledged a range of mitigating factors for Bottom: his guilty plea (attracting a 25% discount), a troubled background marked by a violent and alcoholic father, childhood sexual misconduct by a football coach, a significant history of drug and alcohol dependence, an absence of prior relevant convictions of the kind, and some evidence of remorse and insight. The principles from R v Fernando and Bugmy v The Queen were considered in relation to the broader social context of his upbringing, though Bottom is not Indigenous and the Court applied those principles with care.
For Camilli, the Court recognised that his role was less serious than Bottom's. He participated in the affray and struck the victim with the butt of his knife, but he did not inflict the stabbing wounds. His personal circumstances, including a mental condition and this being his first significant period of custody, supported a finding of special circumstances. His sentence was structured so that he was directed to be released to parole forthwith upon imposition.
The parity principle was engaged because both offenders appeared for sentence together. The Court crafted the sentences to reflect the meaningful difference in their respective levels of culpability while maintaining internal consistency across the two outcomes.
Orders Made
Mr Bottom:
- Count 1 (damage property in company): non-parole period of 6 months from 6 September 2015; head sentence of 9 months
- Count 2 (throw missile at police): non-parole period of 8 months from 6 December 2015; head sentence of 1 year
- Count 3 (damage property): non-parole period of 1 year from 6 June 2016; head sentence of 1 year 6 months
- Count 4 (reckless wounding in company): non-parole period of 2 years from 6 December 2016; head sentence of 3 years 9 months
- Aggregate effective sentence: non-parole period of 3 years 3 months from 6 September 2015; head sentence of 5 years; eligible for parole on 5 December 2018
- Referred to the Drug Court pursuant to s 5A of the Drug Court Act 1998 to determine whether a compulsory drug treatment order should be made
Mr Camilli:
- Affray: non-parole period of 1 year and 7 days from 5 September 2015; head sentence of 2 years
- Directed to be released to parole forthwith
Key Takeaways
- Where two offenders are sentenced together, the parity principle requires the court to calibrate individual sentences so that differences in culpability are clearly and proportionately reflected in the outcomes.
- A 25% discount on sentence was applied to both offenders for guilty pleas entered in the Local Court, consistent with the approach in R v Thomson & Houlton.
- Special circumstances justifying a departure from the standard non-parole period ratio can be established by reference to rehabilitation needs arising from substance abuse, an offender's mental condition, or the fact that the offender is serving their first significant custodial term.
- Under s 5A of the Drug Court Act 1998, an eligible convicted offender may be referred to the Drug Court at the time of sentence for consideration of a compulsory drug treatment order, even where a head sentence of five years has been imposed.
- The principles in Bugmy v The Queen and R v Fernando, which address the relevance of socially and personally disadvantaged backgrounds to sentencing, were engaged in Bottom's case, demonstrating that those principles are not confined to Indigenous offenders but are applied with appropriate care to the individual's circumstances.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35(3), 60(1), 61, 93C, 93C(2), 195(1)(a), 195(1A)(a), 546C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 5, 21A(2)(c), 21A(2)(d), 21A(3)(h), 21A(3)(i), 21A(3)(k)
- Drug Court Act 1998 (NSW), s 5A
Cases:
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Hili v The Queen (2010) 242 CLR 520
- R v Matzick [2007] NSWCCA 92
- R v Watt, Unreported, 2 April 1997, NSWCCA
- R v Engert (1995) 84 A Crim R 67
- R v Henry (1999) 46 NSWLR 346
- R v Todorovic [2008] NSWCCA 49
- R v Dickinson [2004] NSWCCA 457
- R v Hampton [1999] NSWCCA 341
- R v Fernando (1992) 76 A Crim R 58
- Bugmy v R (2013) 249 CLR 571
- R v McNaughton (2006) 66 NSWLR 566