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District Court 6 April 2018

R v Jesse John Rose

[2018] NSWDC 262

Assault & violence
CRIMINAL LAW SENTENCING RECKLESS WOUNDING LATE GUILTY PLEA HARDSHIP OF IMPRISONMENT ALCOHOL RELATED VIOLENCE REHABILITATION OR RETRIBUTION?

Citation: R v Jesse John Rose [2018] NSWDC 262
Court: District Court of New South Wales
Date: 6 April 2018
Judge: Haesler SC DCJ

Background

The offender and a companion were at a hotel in Shellharbour City on the evening of 21 May 2016, both heavily intoxicated. After behaving aggressively and refusing to leave when directed by security staff, the offender spat on a security guard's face. The guard responded by throwing a punch, after which his legs gave way and he fell to the ground.

While the guard lay on the ground, the offender threw a schooner glass at him with considerable force. The glass caused a wound to the right side of the guard's head requiring internal stitches and five staples, as well as a depressed skull fracture of the temporal bone. There was, fortunately, no injury to the brain.

The offender ultimately pleaded guilty to reckless wounding. The matter had been listed for trial before a late offer to plead was made and eventually accepted.

  • Where the offence fell on the range of objective seriousness relative to the standard non-parole period for reckless wounding
  • What weight to give the late guilty plea in calculating the utilitarian discount
  • Whether the offender's subjective circumstances, including mental illness and personal hardship, justified significant mitigation
  • Whether an Intensive Corrections Order (a sentence served in the community under supervision) was appropriate, or whether full-time custody was required
  • Whether special circumstances existed to justify a longer-than-usual parole period relative to the non-parole period

Decision

His Honour assessed the objective seriousness of the offence by reference to the principles in Muldrock v The Queen (2011) 244 CLR 120, which requires that assessment to be made without reference to personal factors. The offence was found to fall below the midpoint of the range of objective seriousness for reckless wounding, given the circumstances, though it remained a serious offence. The standard non-parole period for this offence is three years, with a maximum penalty of seven years imprisonment.

His Honour declined to apply a staged or formulaic approach to sentencing, consistent with Markarian v The Queen (2005) 228 CLR 357, instead synthesising all relevant factors. A utilitarian discount of 12.5% was applied to reflect the guilty plea, which, while late, did carry practical benefit in resolving the matter without a trial.

The subjective case included expressed remorse, the offender's role as a parent, employment history, and evidence of mental illness. His Honour acknowledged these factors and made a finding of special circumstances, allowing for a parole period longer than the statutory norm. However, consistent with the Court of Criminal Appeal's reasoning in Loveridge v R [2014] NSWCCA 120, His Honour held that courts in New South Wales are required to impose severe sentences for alcohol-fuelled violence causing injury to innocent victims. That obligation precluded an Intensive Corrections Order.

The court noted that CCTV footage and previously imposed heavy sentences had not deterred this offending. Despite the considerable mitigating factors, full-time custody was required to reflect the community's denunciation of violent, alcohol-related offending and to vindicate the dignity of the victim, who was injured while performing his duties as a security guard.

Orders Made

  • Non-parole period of one year and two months, commencing 6 April 2018 and expiring 5 June 2019
  • Parole period of one year following the expiration of the non-parole period (total sentence: two years and two months)
  • A copy of the psychiatric report (Dr Furst's report) to accompany the warrant
  • The CCTV exhibit made accessible, with no order restricting public access
  • A related matter dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 on the basis that no further penalty was expedient

Key Takeaways

  • The District Court confirmed that, following Muldrock, the standard non-parole period is a legislative guideline requiring careful consideration but does not compel a mathematically staged sentencing result. It must be synthesised with all relevant factors.
  • Alcohol-fuelled violence causing injury to hotel security staff attracts a strong expectation of full-time custodial sentences under NSW law, as affirmed in Loveridge v R. This expectation held even where significant subjective mitigating factors were present.
  • A late guilty plea still attracted a utilitarian discount, assessed here at 12.5%, reflecting the practical benefit of avoiding a trial despite the plea coming after the matter had been listed.
  • Special circumstances were found to exist, permitting a longer parole period relative to the non-parole period than the statutory default. The judgment does not prescribe a single factor as determinative; the finding arose from a combination of the offender's personal circumstances.
  • Where a victim impact statement addresses injuries that were not the direct result of the charged offence, the sentencing court must confine its consideration to harm directly caused by the offence. His Honour was careful to distinguish the head injury (the subject of the charge) from the knee injuries sustained by the security guard in an unrelated manner.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 26
- Criminal Procedure Act 1987 (NSW), s 166

Cases:
- Loveridge v R [2014] NSWCCA 120
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120