Citation: R v Benjamin [2019] NSWDC 190
Court: District Court of New South Wales
Date: 1 April 2019
Judge(s): Colefax SC DCJ
Background
The offender was a 27-year-old man born in Sudan who had been living in Australia for some years. At the time of the offending, he was serving a sentence for assault police and was housed in the mental health screening unit at the Metropolitan Remand and Reception Centre at Silverwater, due to be released on parole the following day.
On 23 May 2018, the offender approached a correctional officer from behind and delivered at least three punches to the officer's head. The officer fell to the floor, was rendered unconscious, and sustained a fractured jaw requiring four surgical plates, which will remain in place permanently. The officer was off work for six months and continued to receive psychological treatment nearly a year after the incident.
The offender appeared for sentencing on one count of recklessly causing grievous bodily harm to a law enforcement officer, contrary to section 60A(3) of the Crimes Act 1900 (NSW), having entered an early plea of guilty.
Legal Issues
- What was the appropriate head sentence and non-parole period for the offence, having regard to the offender's mental illness at the time of offending?
- Whether the victim's status as a correctional officer constituted an additional aggravating factor beyond the elements of the offence.
- Whether special circumstances existed to justify varying the standard ratio between the head sentence and the non-parole period.
Decision
Objective seriousness: The court assessed the offence as slightly below mid-range for an offence of its type (at [10]). The Crown submitted that the victim's status as a correctional officer was an additional aggravating factor, but the court rejected this, finding that the victim's status as a law enforcement officer is an element of the offence itself rather than a separate aggravating matter (at [11]).
Mental illness and sentencing considerations: At the time of the assault, the offender was in the grips of schizophrenia, a condition the court found had likely been present at the time of offending. Because of this, considerations of general deterrence, denunciation, and specific deterrence were reduced. However, the court found that the need to protect the community was correspondingly increased (at [20]).
Rehabilitation and medication: The court expressed serious concern about the offender's stated belief that he no longer required antipsychotic medication, describing this as mistaken and flagging a guarded prognosis for rehabilitation as a result (at [21]-[22]). Despite that guarded outlook, the court accepted the submission that a longer parole period would better support whatever rehabilitation prospects existed, and that full-time custody with a greater proportion on parole was warranted to reduce the risk of institutionalisation (at [23]).
Sentence: The court imposed a head sentence of three years imprisonment, reflecting a 25 percent discount for the early guilty plea from a notional head sentence of four years (at [25]-[27]). The non-parole period was set at 18 months, with the sentence backdated to 24 May 2018 (at [24], [27]). The reduced non-parole period relative to the head sentence reflected the finding of special circumstances.
Orders Made
- Sentenced to a term of imprisonment of 3 years with a non-parole period of 18 months, backdated to 24 May 2018.
Key Takeaways
- The District Court confirmed that where an offence is defined by reference to the victim's status as a law enforcement officer, that status cannot also be treated as a separate aggravating factor at sentencing (at [11]).
- Where an offender was highly psychotic at the time of the offence, considerations of general deterrence, denunciation, and specific deterrence are reduced, though this reduction is offset by an elevated need for community protection (at [20]).
- Special circumstances justifying a variation in the ratio of head sentence to non-parole period were established where the offender faced a risk of institutionalisation and where a longer parole period was considered more likely to support rehabilitation (at [23]).
- An early guilty plea attracted a 25 percent discount to the sentence, reducing the head term from four years to three years (at [25]-[27]).
- The court treated the offender's expressed intention to cease antipsychotic medication as a significant factor weighing against confident rehabilitation prospects, even though it did not alter the finding that special circumstances existed (at [21]-[22]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s.60A(3).
Cases
- Not stated