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District Court 19 June 2019

R v WOODEN

[2019] NSWDC 263

Assault & violence
CRIMINAL SENTENCING WOUND WITH INTENT INTELLECTUAL IMPAIRMENT CRIMINAL HISTORY AGGRAVATING FACTOR

Citation: R v Wooden [2019] NSWDC 263
Court: District Court of New South Wales
Date: 19 June 2019
Judge: Lerve DCJ

Background

The offender pleaded guilty at Wagga Wagga Local Court in February 2019 to one count of wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900. The plea was maintained at the sentence hearing in the District Court in June 2019, entitling the offender to the full 25% utilitarian discount.

The offence occurred on the night of 30 August 2018 at Ashmont, a suburb of Wagga Wagga. The offender entered the victim's home, retrieved a butter knife from the kitchen, and stabbed the victim in the neck and twice in the left arm. The neck wound penetrated deep into the tissue and reached the carotid artery. The victim required treatment under general anaesthetic at the local Base Hospital.

In the hours after the attack, the offender attended two other addresses in the area seeking to clean blood from himself, making threats to damage vehicles at both locations. He also smashed a car window and a bedroom window at those addresses. Those property damage offences were placed before the court on a Form 1 document (meaning they were taken into account in sentencing without separate convictions being recorded).

  • What was the appropriate starting point for sentence given the objective seriousness of a wounding offence where the victim suffered serious injuries?
  • How should the offender's intellectual impairment (measured IQ of approximately 60, placing him in the "extremely low" category) be factored into the sentencing exercise, including its effect on moral culpability?
  • Whether, and to what extent, a prior criminal history could operate as an aggravating factor where that history may itself be connected to the offender's intellectual impairment.
  • Whether special circumstances existed warranting a departure from the standard ratio between the non-parole period and the balance of term.

Decision

Lerve DCJ identified the offence as principally a "result offence," consistent with the approach in Mitchell & Gallagher v The Queen and McCullough v R, meaning the seriousness of the wounding itself significantly determined the gravity of the offending. The injuries to the victim's neck and arm, including proximity to the carotid artery, placed the offence at a serious level on the objective scale.

Applying the principles in Tepania v R [2018] NSWCCA 247, his Honour factored the offender's intellectual impairment into the assessment of objective seriousness and moral culpability. The psychologist's report assessed the offender's full-scale IQ at approximately 60, placing him below 99.6% of his peers and within the "extremely low" range consistent with mild intellectual disability. This impairment was relevant not only to moral culpability but also to the weight to be given to general deterrence, which is generally reduced where an offender has significant cognitive limitations.

His Honour also addressed the offender's criminal history. While a prior record is ordinarily an aggravating factor under the Crimes (Sentencing Procedure) Act 1999, the sentencing court was required to consider whether that history was itself connected to the offender's longstanding intellectual impairment. The principles in Bugmy v The Queen [2013] HCA 37 were engaged, recognising that the effects of profound disadvantage do not diminish over time and must be taken into account on each sentencing occasion. This moderated the weight given to the criminal history as an aggravating factor.

His Honour found special circumstances existed, warranting a non-parole period set at two-thirds of the total sentence rather than the standard three-quarters. The reasons included the offender's intellectual impairment and the need for an extended period of supervised parole to support rehabilitation and ongoing treatment for substance abuse. An appropriate starting point of 8 years was reduced by 25% to a total sentence of 6 years.

Orders Made

  • The offender was convicted of wounding with intent to cause grievous bodily harm (s 33(1)(a), Crimes Act 1900), with two property damage offences taken into account on Form 1.
  • Sentenced to a non-parole period of 4 years, commencing 1 November 2018 and expiring 31 October 2022.
  • Balance of term of 2 years, commencing 1 November 2022 and expiring 31 October 2024.
  • Special circumstances found; the non-parole period represents two-thirds of the total sentence.
  • The court recommended that any release to parole be conditioned on the offender complying with all reasonable directions regarding treatment and counselling for substance abuse.
  • A copy of the psychologist's report (Exhibit 1) was directed to be annexed to the warrant accompanying the offender into custody.

Key Takeaways

  • Intellectual impairment, where causally connected to or materially contributing to an offence, must be factored into both the assessment of objective seriousness and the evaluation of moral culpability, following Tepania v R [2018] NSWCCA 247.
  • Under the Bugmy principle (confirmed by the High Court in 2013), the effects of profound disadvantage and cognitive limitation do not reduce in weight with the passage of time and must be considered afresh on each sentencing occasion.
  • Where a prior criminal history may itself be attributable to longstanding intellectual impairment, the weight given to that history as a statutory aggravating factor is appropriately moderated rather than applied at full force.
  • A finding of special circumstances, extending the balance of term relative to the non-parole period, is available where an offender's intellectual impairment and rehabilitation needs make a longer period of supervised parole appropriate.
  • Wounding offences under s 33(1)(a) of the Crimes Act 1900 carry a maximum of 25 years imprisonment and a standard non-parole period of 7 years; sentencing proceeds by instinctive synthesis with those figures as principal guideposts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(a), s 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Tepania v R [2018] NSWCCA 247
- Bugmy v The Queen [2013] HCA 37
- Muldrock v The Queen [2011] HCA 39
- Hili & Jones v The Queen [2010] HCA 45
- Veen v The Queen (No. 2) (1988) 164 CLR 465
- Mitchell & Gallagher v The Queen (2007) 177 A Crim R 94
- McCullough v R [2009] NSWCCA 94
- McNaughton v The Queen (2006) 66 NSWLR 566
- R v Tuala [2015] NSWCCA 8
- SS v R [2016] NSWCCA 197
- Brown v R [2014] NSWCCA 215
- Jinette v R [2012] NSWCCA 217
- Nowak v R [2008] NSWCCA 89
- The Attorney General's Application pursuant to s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146