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District Court 13 March 2018

R v MULQUEENEY, Brody Paul Stuart

[2018] NSWDC 48

Assault & violence
CRIMINAL SENTENCING DELIBERATELY SET FIRE TO ANOTHER PERSON BREACH OF S9 BOND

Citation: R v Mulqueeney [2018] NSWDC 48
Court: District Court of New South Wales
Date: 13 March 2018
Judge: His Honour Judge Lerve

Background

The offender, aged 20 at the time, deliberately set fire to a 14-year-old victim at a backyard gathering in Lockhart, a small regional town south-west of Wagga Wagga. The offender had poured paint thinners over the victim, wrestled him to the ground, held him in a headlock, and then ignited the lighter near the victim's back. The victim suffered burns to 35% of his body surface and underwent six surgical procedures, including skin grafting, at Westmead Children's Hospital.

Following the incident, the offender refused to call an ambulance, remarking that he would "go to gaol again," and then engaged in a sustained effort to fabricate a false account. Over several days he contacted witnesses by phone and text message, instructing them to say that the victim had accidentally set himself alight. The offender was on parole at the time of the offence and was also subject to a good behaviour bond imposed by the District Court in April 2016 for a separate break-and-enter matter.

The offender was committed for trial from the Local Court at Wagga Wagga and pleaded guilty at arraignment in the District Court to one count of causing grievous bodily harm with intent to cause grievous bodily harm (s 33(1)(b), Crimes Act 1900). A charge of doing an act with intent to pervert the course of justice was placed on a Form 1 document, to be taken into account on sentence. The court was also asked to revoke the existing good behaviour bond.

  • What discount, if any, should apply for the utilitarian value of the guilty plea, and at what percentage?
  • How should the Form 1 public justice offence (perverting the course of justice) be reflected in the sentence?
  • Whether and how to revoke the existing s 9 good behaviour bond, and how to structure any sentence for that breach alongside the principal sentence.
  • What is the appropriate total sentence, non-parole period, and whether special circumstances exist to justify a variation from the standard non-parole period ratio?

Decision

Guilty plea discount. The Crown submitted a 10% discount for the utilitarian value of the plea. His Honour disagreed, finding that a 20% discount was appropriate. The plea was entered at arraignment, within three months of committal, and at a stage when the matter had only been listed for arraignment rather than trial. Relying on the Court of Criminal Appeal's approach in R v Borkowski, His Honour accepted that this timing warranted a more generous discount.

Form 1 offence. The perverting-the-course-of-justice conduct was not isolated. The offender made repeated phone calls and sent multiple text messages over several days, enlisting at least two witnesses to maintain a false account. His Honour applied the Guideline Judgment on Form 1 matters and held that this conduct had to have a meaningful impact on the final sentence.

Good behaviour bond. His Honour revoked the s 9 bond and imposed a fixed term of four months' imprisonment, wholly concurrent with the principal sentence. Neither party objected to that approach.

Principal sentence. The maximum penalty for the s 33(1)(b) offence is 25 years, with a standard non-parole period of seven years. His Honour identified a starting point of 11 years before applying the 20% plea discount, arriving at a total sentence of 8 years and 9 months. The non-parole period was set at 5 years and 9 months, approximately 65% of the total sentence. This ratio reflected a finding of special circumstances, the reasons for which were set out in the remarks on sentence. His Honour recommended release at the expiration of the non-parole period.

Orders Made

  • The s 9 good behaviour bond (imposed 19 April 2016 for break and enter with intent to commit a serious indictable offence) is revoked. A fixed term of 4 months' imprisonment is imposed, commencing 14 November 2016 and expiring 13 March 2017.
  • The offender is convicted of causing grievous bodily harm with intent (s 33(1)(b), Crimes Act 1900), committed on 28 August 2016 at Lockhart.
  • Taking into account the Form 1 public justice offence, the offender is sentenced to a non-parole period of 5 years and 9 months, commencing 14 November 2016 and expiring 13 August 2022, followed by a parole period of 3 years expiring 13 August 2025. Total sentence: 8 years and 9 months.
  • His Honour recommended the offender's release at the expiration of the non-parole period.
  • The starting point for sentence was 11 years, reduced by 20% for the utilitarian value of the guilty plea.

Key Takeaways

  • A guilty plea entered at arraignment, within three months of committal, warranted a 20% discount for utilitarian value in these circumstances, notwithstanding the Crown's position that 10% was appropriate.
  • Under the Guideline Judgment on Form 1 matters, a public justice offence placed on a Form 1 must have a meaningful impact on the sentence ultimately imposed, particularly where the conduct was sustained, deliberate, and involved multiple participants.
  • Special circumstances justified extending the parole period beyond the statutory default ratio, producing a non-parole period of approximately 65% of the total sentence rather than the standard 75%.
  • Where an offender is simultaneously subject to a good behaviour bond and a principal sentence, the District Court structured the bond revocation as a concurrent fixed term, an approach to which neither party objected.
  • The combination of severe injuries (burns to 35% of body surface, six surgical procedures), the victim's age (14 years), the offender's conduct in refusing to summon help, and the sustained cover-up collectively placed this offending at a level requiring a substantial term of full-time imprisonment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 9

Cases
- The Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1 matters)
- R v Borkowski [2009] NSWCCA 102
- Muldrock v The Queen [2011] HCA 39
- Hili & Jones v The Queen [2010] HCA 45
- Aslan [2014] NSWCCA 114
- Betts v R [2015] NSWCCA 39
- Brown v R [2014] NSWCCA 215
- Bourke [2010] NSWCCA 22
- Cahyadi v R [2007] NSWCCA 1
- R v Elyard [2006] NSWCCA 43
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Hearne v R (2001) 123 A Crim R 451
- Locke v The Queen [2010] NSWCCA 296
- JM v The Queen [2012] NSWCCA 83
- McCullough v R [2009] NSWCCA 94
- McNaughton v R (2006) 66 NSWLR 566
- Mitchell & Gallagher v The Queen (2007) 177 A Crim R 94
- Ngati [2014] NSWCCA 125
- Nowak v R [2008] NSWCCA 89
- Uriolla v R [2012] NSWCCA 95