Citation: R v Heath Innis Martin [2018] NSWDC 388
Court: District Court of New South Wales
Date: 7 December 2018
Judge: Mahony SC DCJ
Background
The offender, a fly-in fly-out mining worker in his early forties, believed a 14-year-old neighbour had stolen his quad bike from his garage while he was working interstate. Dissatisfied with the police response to his complaint, he took matters into his own hands.
On the evening of 17 November 2016, the offender drove to the home where the teenager was staying with his mother and grandmother. He brought a petrol container and an oxy-acetylene torch. After a confrontation erupted in the driveway, he swung the petrol container and the fuel splashed onto the victim's arms and legs as well as her car. The petrol then ignited. The victim sustained full-thickness burns to 41% of her body and face, spent 22 days in hospital, and required nine operations.
The offender pleaded guilty to one count of recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900, with the Crown accepting that plea in full answer to the indictment. He also pleaded guilty to three related offences on a certificate under s 166 of the Criminal Procedure Act 1986, including stalking and intimidation charges.
Legal Issues
- What was the appropriate assessment of the objective seriousness of the offending?
- Which statutory aggravating factors applied under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999?
- What utilitarian discount should apply to the guilty plea?
- Whether the sentencing threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 was met, requiring full-time imprisonment.
- Whether special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 existed to justify a longer parole period.
- What penalty should be imposed for the three certificate offences?
Decision
Objective seriousness: The court assessed the objective seriousness of the offending as falling well within the mid-range for a s 35(2) offence, and towards the higher end of that mid-range (at [50]). The victim's burns to 41% of her body, 22-day hospitalisation, and nine operations all bore on this assessment. The court rejected the submission that facial scarring was "minor", though it noted there was no medical evidence establishing loss of function (at [50]).
Aggravating factors: Three statutory aggravating factors were established. The offence occurred at the victim's home on the driveway, constituting a violation of her reasonable expectation of safety under s 21A(2)(eb) (at [48]). The offence was committed in the presence of the victim's child under s 21A(2)(ea) (at [49]). There was also planning involved, given the offender had arrived with a petrol container and ignition device, engaging s 21A(2)(n) (at [49]).
Guilty plea discount and remorse: The court allowed a 20% utilitarian discount for the guilty plea, noting it was offered shortly after the offender obtained legal representation, even though the Crown took some time to accept the offer (at [52]). Because the offender did not give sworn evidence, the court approached his expressed remorse with caution, though it accepted he was genuinely remorseful and had sought ongoing psychological treatment (at [52]-[53]).
Mental health, rehabilitation, and sentence: Special circumstances were established under s 44(2) of the Crimes (Sentencing Procedure) Act 1999. This was the offender's first time in custody and he suffered from Major Depressive Disorder and PTSD meeting DSM-V criteria (at [56]). The court found the s 5 imprisonment threshold was met and that no penalty other than full-time custody was appropriate, given the severity of the injuries and the offender's decision to take the law into his own hands (at [57]). A sentence of 2 years and 8 months imprisonment was imposed, with a non-parole period of 18 months commencing 5 December 2018 (at [58]).
Orders Made
- Convicted of recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900.
- Sentenced to imprisonment with a non-parole period of 18 months, commencing 5 December 2018 and terminating 4 June 2020.
- Balance of term of 14 months commencing 5 June 2020 and terminating 4 August 2021.
- Parole eligibility date: 4 June 2020.
- Convicted of the three offences on the s 166 certificate (sequences 2, 3 and 4) with no further penalty imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.
Key Takeaways
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The District Court confirmed that an offence occurring on the driveway of a victim's home still engages the aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999, as it constitutes a violation of the victim's reasonable expectation of safety and security in her home (at [48]).
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A 20% utilitarian discount for a guilty plea was appropriate where the offer was made promptly after the offender obtained legal representation, even though the Crown's acceptance of the offer was delayed (at [52]).
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Where an offender does not give sworn evidence, a sentencing court treats expressions of remorse relayed through a psychologist's report, a personal letter, or character testimonials with caution, even while accepting that some genuine remorse exists (at [52]-[53]).
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Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 were established by the combination of a first-time custodian status and clinically diagnosed mental health conditions requiring ongoing treatment, resulting in a non-parole period shorter than the standard ratio (at [56]).
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Under s 29(3) of the Crimes (Sentencing Procedure) Act 1999, the absence of a Victim Impact Statement does not permit an inference that the offence had little or no impact on the victim; the court drew on the objective nature of the injuries to assess that impact (at [57]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Criminal Procedure Act 1986
Cases
- R v Kirkland [2005] NSWCCA 130
- R v Lullum (2016) 263 A Crim R 287