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Local Court 3 July 2018

R v Rampling

[2018] NSWLC 7

Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE RECKLESSLY INFLICT GRIEVOUS BODILY HARM DOMESTIC VIOLENCE OFFENCE FEROCIOUS VIOLENCE EXCESS CONSUMPTION OF ALCOHOL

Citation: R v Rampling [2018] NSWLC 7
Court: NSW Local Court
Date: 3 July 2018
Judge: Judge Graeme Henson, Chief Magistrate

Background

The defendant pleaded guilty to recklessly inflicting grievous bodily harm on his partner of five months, contrary to s 35(2) of the Crimes Act 1900 (NSW). The offence occurred at a hotel after a family function, where the defendant, heavily intoxicated, grabbed the victim around the neck, slammed her head into a brick wall, then struck her face with his knee with considerable force, dislodging and fracturing multiple teeth and causing heavy bleeding. The victim required four nights in hospital and faced specialist dental remediation costs exceeding $30,000.

The DPP declined to elect to have the matter dealt with in the District Court, leaving it to be prosecuted as a summary matter by the Police Prosecuting Branch. That decision confined the Local Court to a maximum sentencing power of two years' imprisonment, compared with the ten-year maximum on indictment.

The defendant was 38 years old with no relevant criminal history, was employed as a sprinkler fitter, and had no memory of the offence from the time he left the function. He claimed the event may have involved drink spiking, though this was unestablished. He indicated an intention to plead guilty early in proceedings and had previously made an unsuccessful application under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).

  • What sentence was appropriate for a mid-range domestic violence offence of reckless grievous bodily harm, having regard to both objective and subjective factors?
  • What was the effect of the DPP's decision not to elect, and how should the court approach sentencing where the jurisdictional limit constrains the otherwise appropriate sentence?
  • What weight should be given to psychological reports offering retrospective diagnoses based substantially on the defendant's self-reported account, particularly where the defendant has no memory of the offence?
  • Did the offending cross the threshold requiring full-time custody under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW)?

Decision

Chief Magistrate Henson found the offence was of mid-range objective seriousness, noting that the DPP's refusal to elect did not diminish the objective gravity of the conduct. Applying R v Doan (2000) 50 NSWLR 115, the court assessed seriousness by reference to the legislative provision, not the Local Court's jurisdictional ceiling. The Chief Magistrate observed that, had the full range of sentencing powers been available, the appropriate sentence after applying subjective factors and the utilitarian plea discount would have been two years and six months.

Because the Local Court's maximum for a single offence was two years, the Chief Magistrate declined to apply the plea discount a second time against that lower ceiling, reasoning that doing so would effectively reward the defendant twice. The court therefore imposed the full two-year term.

The court treated the two psychological reports with considerable caution. Both reports acknowledged difficulty forming retrospective conclusions given the defendant's complete absence of memory. Applying Imbornone v R [2017] NSWCCA 144, the Chief Magistrate noted that self-reported accounts to clinicians must be treated with care and that speculative conclusions had limited weight. The court recognised that the defendant's search for an explanation, including the possibility of drink spiking, was understandable but unestablished and did not alter the reality or brutality of the offending.

On the question of sentence type, the court found the s 5 threshold was clearly crossed and that no alternative to full-time custody was appropriate. General and personal deterrence, denunciation, accountability, and the serious impact on the victim and community, particularly in the context of appellate authority addressing violence against women in domestic settings, all pointed firmly toward imprisonment. The court found no basis to disturb the statutory non-parole period ratio, and no persuasive case for special circumstances was advanced.

Orders Made

  • The defendant was convicted of recklessly inflicting grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW).
  • Sentenced to imprisonment comprising a non-parole period of 18 months and a total term of 2 years, commencing 3 July 2018.
  • Eligible for parole on 2 January 2020; total sentence to expire 2 July 2020.

Note: On appeal to the NSW District Court on 11 September 2018, the two-year total term was confirmed. The non-parole period was varied from 18 months to 13 months following a finding of special circumstances.

Key Takeaways

  • A DPP decision not to elect for trial on indictment does not reduce the objective seriousness of an offence; sentencing courts assess gravity against the relevant statutory maximum, not the Local Court's jurisdictional ceiling, as established in R v Doan.
  • Where the otherwise appropriate sentence exceeds the Local Court's jurisdictional limit, the sentencing court cannot apply the plea discount again against that lower limit, as that would amount to rewarding the defendant twice for the same utilitarian benefit.
  • Retrospective psychological diagnoses based substantially on an offender's self-reported account, and where the offender has no memory of the offence, carry limited weight at sentencing; the court applied the caution endorsed in Imbornone v R regarding statements to clinicians.
  • Ferocious domestic violence of this nature, even where the offender is otherwise of good character and the offending is out of character, attracts full-time imprisonment given the requirements of general deterrence, denunciation, and accountability, and the appellate courts' established approach to serious violence against women.
  • The fact that a sentencing court's powers are constrained by jurisdictional limits does not mean those limits adequately reflect the criminality involved; the Chief Magistrate expressly noted that the Local Court lacked sufficient sentencing power to deal appropriately with this matter.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A(3)(k), 22(1)(b), 54D(2)
- Criminal Procedure Act 1986 (NSW) s 267, Schedule 1, Table 1
- Mental Health (Forensic Provisions) Act 1990 (NSW) s 32

Cases
- Blackwell v R [2011] NSWCCA 93
- Imbornone v R [2017] NSWCCA 144
- Munda v Western Australia [2013] HCA 38
- Pattalis v R [2013] NSWCCA 171
- R v Doan (2000) 50 NSWLR 115
- R v Edigarov (2001) 125 A Crim R 551
- R v Fahda [1999] NSWCCA 267
- R v Hamid [2006] NSWCCA 302
- R v Thomson; R v Houlton (2000) 49 NSWLR 383