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District Court 29 July 2016

Regina v John Charles Hordern

[2016] NSWDC 230

Assault & violence
CRIMINAL LAW ASSAULT WOUNDING SENTENCE PLEA OF GUILTY GENERAL DETERRENCE SPECIFIC DETERRENCE

Citation: Regina v John Charles Hordern [2016] NSWDC 230
Court: District Court of New South Wales
Date: 29 July 2016
Judge: Judge AC Scotting

Background

The offender, a 46-year-old Aboriginal man, pleaded guilty to one count of wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900. The offence arose from a dispute over a $50 debt between the offender and an acquaintance in the town of Gilgandra.

Following a series of increasingly aggressive and threatening text messages, the offender attended the victim's home on 28 August 2015 armed with a shortened sword or machete approximately two feet long. When the victim came outside, the offender swung the weapon at him twice, inflicting two wounds to the victim's left arm. The more serious wound was an 11-centimetre laceration below the elbow that penetrated through skin, muscle and fat to the bone, with x-rays confirming a fracture of the elbow tip. The offender fled after a neighbour intervened.

The offender was found hiding under his house approximately 34 hours later. He declined to be interviewed but confirmed he had disposed of the weapon. At the time of sentencing, the offender was held at Parklea Correctional Centre, where he was receiving treatment for bipolar disorder, cancer of the parotid gland, and a circulatory condition causing significant pain and mobility difficulties.

  • What is the appropriate sentence for a guilty plea to wounding with intent to cause grievous bodily harm, having regard to the standard non-parole period of seven years?
  • What weight should be given to aggravating factors, including use of a dangerous weapon, the nature of the injuries, and an extensive criminal history involving violence?
  • What mitigating factors applied, including the guilty plea, the offender's health, substance abuse history, deprived background, and remorse?
  • Whether special circumstances existed justifying a departure from the statutory ratio between the non-parole period and head sentence?
  • What discount should apply to reflect the offender's guilty plea entered in the Local Court?

Decision

Judge Scotting identified several significant aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999: the use of a dangerous weapon (the machete), the severity of the injuries, and the offender's extensive criminal history, which included prior offences of serious personal violence. The offender's record dated back to approximately ten years of age, with near-continuous offending between 1980 and 2000.

In mitigation, the court accepted the guilty plea, the offender's expressed remorse and acknowledgment that his response was disproportionate, his deprived background (including early exposure to drugs, alcohol and violence), his significant physical health problems, and his mental health history. The court also accepted that the offender's heavy methamphetamine use at the time of the offence was relevant context, although voluntary intoxication did not excuse the conduct. The offender's background as an Aboriginal man was considered in accordance with the principles in R v Fernando and Bugmy v R, though the court noted he did not specifically identify as Aboriginal and had not raised experiences of racism or socialisation more commonly encountered by Aboriginal people.

Comparing the offence to similar cases, including Porter v R and the sentencing survey in Newman v R, the court found the present offence was more serious than Porter: there were two strikes rather than one, the weapon was brought to the scene with apparent premeditation, and the offender had a substantial record for personal violence offences whereas Porter had none. The court assessed the appropriate base term at eight years and applied a 25% discount for the guilty plea, reducing the head sentence to six years.

The court found special circumstances under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, citing the offender's physical and mental health needs and the importance of an extended parole period to support residential rehabilitation, reintegration, vocational training, and stable housing.

Orders Made

  • The offender was convicted of one count of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900.
  • Sentenced to a term of imprisonment of six years, with a non-parole period of four years.
  • Sentence dated from 29 August 2015 (the date of arrest).
  • Eligible for release on parole on 28 August 2019.

Key Takeaways

  • The District Court applied a 25% guilty plea discount to a base term of eight years, yielding a head sentence of six years for wounding with intent to cause grievous bodily harm, an offence carrying a maximum of 25 years and a standard non-parole period of seven years.
  • Use of a dangerous weapon brought to the scene, the severity of injuries, and an extensive history of violent offending were all treated as significant aggravating factors warranting a sentence above what comparable cases with lesser records attracted.
  • A deprived background, including early exposure to violence and substance abuse, remains a mitigating consideration under R v Fernando and Bugmy v R, even where an offender does not specifically identify with Aboriginal community experiences.
  • Special circumstances can be established where an offender's physical health, mental health, and substance abuse rehabilitation needs together justify extending the parole period beyond the statutory default, to support structured reintegration.
  • Voluntary methamphetamine use in the lead-up to a violent offence does not excuse the conduct, but evidence of its effects on the offender's state of mind and history of addiction may be treated as relevant context in the overall sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A(2)(c), 21A(2)(d), 21A(2)(eb), 21A(3)(h), 21A(3)(i), 21A(3)(k), 22

Cases
- Veen v R (No 2) (1988) 164 CLR 465
- R v McNaughton (2006) 66 NSWLR 566
- Baumer v R (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No 5) [2009] NSWSC 432
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Barbaro v The Queen (2010) 253 CLR 58
- Hili v The Queen (2010) 242 CLR 520
- Palijan v R [2010] NSWCCA 142
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Wright (1997) 93 A Crim R 48
- R v Lawrence [2005] NSWCCA 91
- R v Mitchell (2007) 177 A Crim R 97
- R v Matzick [2007] NSWCCA 92
- R v Esho [2001] NSWCCA 415
- R v Zhang [2004] NSWCCA 358
- R v Watt (Unreported, 2 April 1997, NSWCCA)
- R v Muldrock (2011) 244 CLR 120
- R v Henry (1999) 46 NSWLR 346
- R v Fernando (1992) 76 A Crim R 58
- Bugmy v R (2013) 249 CLR 571
- Porter v R (2015) NSWCCA 59
- Newman v R (2015) NSWCCA 270