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District Court 13 December 2018

R v Haydar Phili

[2018] NSWDC 513

Assault & violence

Citation: R v Haydar Phili [2018] NSWDC 513
Court: District Court of New South Wales
Date: 13 December 2018
Judge: M L Williams SC DCJ

Background

The offender, a Kurdish Iranian refugee in his late twenties, pleaded guilty to reckless wounding under s 35(4) of the Crimes Act 1900. The offence arose from a late-night altercation at a shared house in Granville, during which the offender drew a knife and struck the victim, causing a one-centimetre wound to the shoulder and a small graze to the neck. The victim was treated at hospital and discharged without requiring sutures.

The charge to which the offender pleaded guilty was a lesser offence than those prosecuted at two earlier trials. An initial trial in April 2018 resulted in a hung jury, and the offender entered his guilty plea on 1 December 2018, shortly before a third trial was due to commence in late October 2018.

From the date of his arrest on 27 March 2016, the offender spent time in either Corrective Services custody or immigration detention at Villawood, totalling almost two years and nine months. A psychiatrist's report documented a diagnosis of substance use disorder, major depressive disorder, and psychotic symptoms, with the offender having been intoxicated on crystal methamphetamine at the time of the offence.

  • What discount applied to the sentence for the utilitarian value of a late guilty plea to a lesser charge?
  • How should the period spent in immigration detention (quasi-custody) affect the sentence?
  • What weight should be given to the offender's mental illness, drug addiction, and background as a refugee in assessing his subjective circumstances?
  • Did special circumstances exist warranting a departure from the standard ratio between the non-parole period and the head sentence?

Decision

The District Court accepted that a term of imprisonment was warranted and that the s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 had been crossed. His Honour assessed the objective seriousness of the offence as sitting at the lower end of the range, noting the relatively minor physical injuries sustained by the victim.

The late plea of guilty was entered after two trials, including one that resulted in a hung jury. Because the plea was to a lesser charge and was entered late, the Court applied a 10% discount for its utilitarian value.

A significant portion of the time since arrest was spent in immigration detention at Villawood. The Court treated this as quasi-custody, a recognised sentencing consideration, and modified the sentence accordingly. His Honour also had regard to the conditions of immigration detention as described in an affidavit from an experienced solicitor familiar with that environment.

The Court found special circumstances, noting the offender's demonstrated and ongoing need for psychiatric treatment and rehabilitation. The finding of special circumstances allowed the non-parole period to be set at a lower proportion of the head sentence than the standard. The prospect of deportation was acknowledged but treated as irrelevant to the sentencing exercise itself.

Orders Made

  • The offender was convicted of reckless wounding under s 35(4) of the Crimes Act 1900.
  • A sentence of imprisonment of 21 months was imposed, commencing 27 September 2016 and expiring 26 June 2018.
  • A non-parole period of 13 months was set, expiring 26 October 2017.
  • Special circumstances were formally found.

Key Takeaways

  • Time spent in immigration detention constitutes quasi-custody and is a factor that can reduce the term of imprisonment otherwise appropriate for an offence.
  • A late guilty plea to a lesser charge, entered after two trials on a more serious indictment, still attracts a utilitarian discount, assessed here at 10%.
  • Mental illness, drug addiction, and the particular vulnerabilities of a refugee background are relevant subjective factors in the sentencing exercise, capable of reducing moral culpability.
  • Special circumstances may be established where the offender has a demonstrated and ongoing need for psychiatric treatment and rehabilitation, justifying a lower non-parole period relative to the head sentence.
  • The District Court confirmed that the prospect of deportation, while a real consequence for the offender, is a matter irrelevant to the sentencing exercise itself.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 35(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5

Cases cited: None reported in the judgment.