Citation: R v Matthew Albert Sheather [2017] NSWDC 122
Court: District Court of NSW
Date: 25 May 2017
Judge: Mahony SC DCJ
Background
The offender was charged with recklessly inflicting grievous bodily harm in company, contrary to section 35(1) of the Crimes Act 1900, following an incident on 19 September 2015 in Young, NSW. Three men, including the offender and two co-offenders (a father and son), attended the victim's home late at night. What followed was a violent assault during which the victim suffered a broken tibia requiring surgical repair with steel plates and screws, as well as facial, rib, stomach, and kidney injuries.
The offender's role included punching and kicking the victim, carrying a knife throughout the attack, and standing over the victim with that knife while he lay on the ground. The offender was on conditional liberty at the time, having been on appeal bail in relation to a prior sentence for shop stealing.
The co-offender son had already been sentenced in the Young Local Court to a nine-month suspended sentence for the related but lesser offence under section 35(2) of the Crimes Act (the same offence without the "in company" element). The sentencing proceeding for the offender took place at Wagga Wagga on 18 May 2017.
Legal Issues
- What was the appropriate sentence, having regard to the objective seriousness of the offending and the offender's personal circumstances?
- What discount applied to the late guilty plea entered the day before trial?
- How did the parity principle apply where the co-offender was sentenced under a different but closely related provision?
- What weight should be given to the offender's borderline intellectual disability, developmental delay, and substance abuse disorder?
- Was a suspended sentence appropriate given the offender's substantial criminal history and the aggravating use of a knife?
Decision
Objective Seriousness
The court found the offending fell just below the mid-range of objective seriousness for a section 35(1) offence, but emphasised that it nonetheless constituted serious offending (at [43]). The three co-offenders took the law into their own hands by attending the victim's premises and carrying out a violent attack on an older man in his own home (at [43]). The offender's role was assessed as equal to that of co-offender Horne Jnr and more serious than that of Horne Snr (at [43]).
Aggravating Factors
Two significant aggravating factors bore on the sentence. First, the offence was committed while the offender was on conditional liberty, which the court treated as an aggravating factor (at [44]). Second, the offender's use of a knife during the attack was a statutory aggravating factor under section 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 and was found to differentiate his sentence from those of his co-offenders (at [48]).
Parity with Co-offender Horne Jnr
The court applied the parity principle from Green v R (2011) 244 CLR 462, holding that parity is a substantive and not a formal principle derived from equality before the law, and that it applies even where co-offenders are charged under different provisions, provided the offences are sufficiently similar (at [45]). Here, the section 35(1) and section 35(2) offences were very similar, with the only difference being the "in company" aggravating element (at [45]). However, the court took into account the differentiating factor of the offender's substantial criminal history, including convictions for violence and dishonesty, which disentitled him to any leniency (at [45]).
Moral Culpability, Late Plea, and Rehabilitation
The court accepted the forensic psychologist's findings that the offender suffered from borderline intellectual disability, developmental delay, and substance abuse disorder, which reduced his moral culpability and his suitability as a vehicle for general deterrence, though general deterrence retained importance (at [46]). His late guilty plea, entered the day before trial, attracted only a minimal utilitarian discount of 5% (at [45]). Mitigating factors included 175 days spent in pre-sentence custody, compliance with strict bail conditions for over a year without reoffending, and the stabilising influence of his employment with a shearing contractor (at [47]-[49]). Balancing all these considerations, the court imposed an 18-month term of imprisonment, suspended on conditions (at [50]).
Orders Made
- The offender was convicted of recklessly inflicting grievous bodily harm in company under section 35(1) of the Crimes Act 1900.
- Sentenced to 18 months imprisonment, suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999.
- Required to enter into an 18-month good behaviour bond.
- Required to accept supervision by Community Corrections, including attendance at recommended drug and alcohol counselling and mental health counselling.
- Required, as a bond condition, to remain employed by his current employer unless that employer terminates the employment.
Key Takeaways
- The District Court confirmed that the parity principle from Green v R (2011) 244 CLR 462 is substantive rather than formal: it applies to co-offenders charged under different provisions where the underlying conduct is the same, with the scope for its application diminishing the greater the difference in seriousness between the offences charged (at [45]).
- A finding of borderline intellectual disability, developmental delay, and substance abuse disorder can reduce a sentencing court's assessment of the offender's moral culpability and diminish the weight given to general deterrence, though the court confirmed that general deterrence retained importance in a case involving a group attack on a person at their home (at [46]).
- Where a guilty plea is entered the day before trial is due to commence, the court will apply only a minimal utilitarian discount. Here, that discount was 5% (at [45]).
- Carrying and deploying a knife during a group attack is a statutory aggravating factor capable of meaningfully differentiating an offender's sentence from those of co-offenders who did not use a weapon, even where the group is jointly responsible for the assault (at [48]).
- A substantial criminal history including prior violence and dishonesty convictions will, in the District Court's assessment, deprive an offender of any leniency in sentencing, even where significant personal mitigating circumstances are established (at [15]-[16], [45]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
Cases
- Green v R (2011) 244 CLR 462