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District Court 10 September 2018

R v Nicholas Murray Read

[2018] NSWDC 304

Assault & violencePublic order & justice offences
CRIMINAL LAW SENTENCE RECKLESS WOUNDING GUILTY PLEA

Citation: R v Nicholas Murray Read [2018] NSWDC 304
Court: District Court of New South Wales
Date: 10 September 2018
Judge: Montgomery DCJ

Background

The offender pleaded guilty to three counts arising from events in April 2016. The first count concerned a violent assault at Dee Why in which the offender wounded the victim with a chisel after confronting him about a sexual relationship with the offender's former partner. The attack caused a penetrating wound to the victim's hand and further injuries to his face and legs.

The remaining two counts arose after the offender was in custody. On 22 April 2016, while at Parklea Correctional Centre, the offender offered the victim money to withhold his evidence. The following day, he asked a third party to persuade the victim not to attend court to give evidence.

All three counts were treated by the Crown as forming a connected course of conduct, stemming from the same interpersonal dynamics between the offender, the victim, and the third party.

  • What sentence was appropriate for the three offences, taking into account the standard non-parole period for reckless wounding and the absence of a standard non-parole period for the perverting-justice offences?
  • What discount should apply for the guilty pleas, given the timing of their formal entry and the procedural history?
  • How should the sentences be accumulated (that is, stacked or run together), given the counts formed a related course of conduct?
  • Whether backdating the commencement of the sentence was appropriate, given the offender had served custody referable partly to these offences and partly to other matters?
  • Whether special circumstances existed to justify departing from the standard ratio between the non-parole period and the balance of term (the portion served on parole).

Decision

Montgomery DCJ applied a 25% utilitarian discount for the guilty pleas across all three counts. The Court found that the plea to Count 2 was entered at the earliest opportunity, and accepted that the delays in formally entering pleas to Counts 3 and 4 were attributable to the Crown's processes rather than any reluctance by the offender.

On accumulation, the Crown acknowledged that the three counts shared a factual nexus and that some degree of accumulation was appropriate. The Court exercised its discretion to partially accumulate the sentences, with the total reflecting the combined criminality without treating each count as entirely independent.

The Court found special circumstances warranting an extended parole period beyond the standard one-third ratio. The offender's background included substance abuse and mental health considerations, which supported the need for structured supervision and rehabilitation programs upon release.

The sentence was backdated to commence on 8 January 2017, consistent with the court's discretion under the principles in Callaghan v The Queen, to account for the period the offender had spent in pre-sentence custody referable partly to these offences.

Orders Made

  • Convicted of Count 2: recklessly wounding the victim on 8 April 2016 (s 35(4) Crimes Act 1900).
  • Convicted of Count 3: acting with intent to pervert the course of justice by offering the victim money to withhold evidence on 22 April 2016 (s 319 Crimes Act 1900).
  • Convicted of Count 4: acting with intent to pervert the course of justice by asking a third party to dissuade the victim from attending court on 23 April 2016 (s 319 Crimes Act 1900).
  • Total aggregate sentence of 3 years and 6 months imprisonment.
  • Non-parole period of 2 years and 3 months, commencing 8 January 2017 and terminating 7 April 2019.
  • Balance of term of 1 year and 3 months, commencing 8 April 2019 and expiring 7 July 2020.
  • Direction that Corrective Services NSW arrange assessment for eligibility for a residential multi-diagnosis and drug rehabilitation program prior to or at the time of parole.
  • Parole conditions to include, at the Parole Authority's discretion: psychiatric or psychological assessment; domestic violence counselling; violence perpetrator counselling; alcohol and other drug counselling; adherence to a mental health plan; and engagement with supervised residential rehabilitation.

Key Takeaways

  • A 25% guilty plea discount applied across all three counts, including those where formal entry of the plea was delayed by the Crown's own processes rather than by the offender's position.
  • Where multiple counts arise from a connected course of conduct involving the same parties and circumstances, the sentencing court may exercise its discretion to partially accumulate sentences rather than make them fully concurrent or fully cumulative.
  • Backdating of a sentence is available under the principles in Callaghan v The Queen where an offender has served pre-sentence custody referable partly to the subject offences and partly to unrelated matters, including the revocation of an earlier non-custodial order.
  • Special circumstances justifying an extended parole period can be grounded in the offender's rehabilitation needs, particularly where substance abuse and mental health issues are identified as relevant factors.
  • The District Court directed specific parole conditions focused on rehabilitation and violence-related counselling, reflecting the nature of the underlying offending and the offender's personal circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(4) and 319
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Callaghan v The Queen [2006] NSWCCA 58
- R v Thomson; R v Houlton (2000) 49 NSWLR 383 (guideline judgment on guilty plea discounts)
- R v Hookey [2018] NSWCCA 147
- Sefian v R [2018] NSWCCA 194
- Veen v The Queen (No 2) (1988) 164 CLR 465