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District Court 5 December 2018

R v Riley

[2018] NSWDC 515

Assault & violenceDrugs
CRIMINAL SENTENCE RECKLESS WOUNDING FORM 1 MATTERS SUBJECTIVE MATTERS

Citation: R v Riley [2018] NSWDC 515
Court: District Court of New South Wales
Date: 5 December 2018
Judge: King SC DCJ

Background

The offender, Matthew Riley, appeared for sentencing on a single charge of reckless wounding under s 35(4) of the Crimes Act 1900, carrying a maximum penalty of seven years' imprisonment and a standard non-parole period of three years. Three further offences were placed on a Form 1 to be taken into account at sentencing: intimidation, taking and driving a conveyance without consent, and possessing a prohibited drug (less than one gram of cannabis).

The offending occurred in the early hours of 31 March 2018 in a coastal New South Wales community. After forcing his way into a neighbour's home while armed with two knives, and then approaching a second neighbour's home, the offender persuaded the victim, a 47-year-old bus driver, to drive him towards Nambucca Heads. The offender was acting in a highly paranoid manner, repeatedly accusing the victim of being involved in a conspiracy against him.

During the journey, the victim attempted to escape near the Nambucca Heads Police Station by accelerating the car. The offender regained entry, and when the victim then attempted to exit the vehicle, he was stabbed in the back with a hunting knife bearing a 20-centimetre blade. The victim's lung was punctured. He lost significant blood before ambulance assistance arrived, and was flown to John Hunter Hospital in Newcastle where he remained for four days.

  • What is the appropriate sentence for the principal offence of reckless wounding, having regard to the objective seriousness of the offending?
  • What weight should be given to the offender's drug-induced psychosis at the time of the offence, and whether that psychosis had an underlying mental illness component sufficient to reduce moral culpability?
  • What relevance did the principles from Bugmy v R and Fernando have to the offender's developmental history and personal circumstances?
  • Whether special circumstances existed to justify departing from the standard statutory ratio between the non-parole period and the balance of term?

Decision

The District Court treated the objective seriousness of the offending as substantial. The offender had carried two knives, terrorised multiple neighbours in the middle of the night while acting with extreme paranoia, effectively held the victim captive in his own vehicle over an extended period, and inflicted a serious wound that punctured the victim's lung. Both specific and general deterrence were identified as important sentencing considerations.

On the question of mental state, the Court accepted that the offender was suffering from drug-induced psychosis at the time. However, the Court found there was no evidence on the balance of probabilities that the psychosis arose from a diagnosable mental illness. The psychological assessment disclosed only a history of behaviour consistent with a Cluster B personality disorder with antisocial features, falling short of a formal mental illness diagnosis.

Despite this, the Court accepted that the principles in Bugmy v R and Fernando applied. Those principles recognise that an offender's deprived or troubled developmental background can reduce moral culpability even where no diagnosed mental illness is established. Some reduction in moral culpability was accordingly applied.

The Court found special circumstances existed, warranting a reduction in the statutory relationship between the non-parole period and the balance of term. The longer parole period was intended to support the offender in ceasing prohibited drug use and transitioning back to a law-abiding life upon release.

Orders Made

  • The offender was convicted of reckless wounding contrary to s 35(4) of the Crimes Act 1900, with the Form 1 offences (intimidation, take and drive conveyance, possess prohibited drug) taken into account.
  • Sentenced to a total term of four years' imprisonment.
  • Non-parole period of two years and six months, commencing 31 March 2018, with first eligibility for parole on 30 September 2020.
  • Balance of term of one year, five months and thirty days, expiring 30 March 2022.

Key Takeaways

  • Drug-induced psychosis can reduce an offender's moral culpability at sentencing, but where there is no diagnosis of an underlying mental illness, a court may limit the weight afforded to that reduction.
  • The principles in Bugmy v R and Fernando remain relevant to sentencing in the District Court, permitting some mitigation of moral culpability where a troubled developmental background is established, even absent a formal psychiatric diagnosis.
  • Where rehabilitation from drug dependency is a genuine sentencing consideration, a finding of special circumstances can justify extending the balance of term beyond the standard statutory ratio.
  • A sentence of four years with a non-parole period of two years and six months was imposed for reckless wounding accompanied by sustained, weapon-based, paranoid conduct affecting multiple victims across an extended episode of offending.
  • Both specific and general deterrence were treated as significant where an offender's history suggested ongoing risk and where the nature of the offending created serious danger for vulnerable members of the community.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(4), 154A(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Drugs (Misuse and Trafficking) Act 1985 (NSW), s 10(1)

Cases:
- Bugmy v R (2013) 249 CLR 571
- R v Fernando (1992) 76 A Crim R 58