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District Court 9 May 2019

R v Jones

[2019] NSWDC 353

Assault & violence

Citation: R v Jones [2019] NSWDC 353
Court: District Court of New South Wales
Date: 9 May 2019
Judge: M L Williams SC DCJ

Background

In January 2006, a group of office workers dressed as West Indian cricketers were playing cricket in Martin Place, Sydney, outside the Westin Hotel. Three men, including the offender, approached and began interfering with the game. After one member of the group punched the offender, the offender seized a cricket bat and began swinging it indiscriminately at people in the group.

As the victim attempted to flee with her back turned, the offender swung the bat and struck her forcefully on the left side of her face near the eye socket. She was knocked unconscious. The offender continued chasing others before the group fled.

The victim sustained a blowout fracture of the left orbital floor, an orbital haemorrhage with signs of optic nerve compromise, and multiple facial lacerations. She ultimately required ten surgical procedures and has ongoing chronic double vision, chronic pain, and chronic ingrown eyelashes. The offender was not identified until a DNA analysis in 2016 matched blood found at the scene, leading to his arrest in September 2017, more than 11 years after the offence.

  • What sentence was appropriate for an offence of reckless grievous bodily harm under s 35(2) of the Crimes Act 1900, where the maximum penalty is ten years imprisonment?
  • What weight should be given to the offender's mental illness (schizophrenia) and drug addiction as subjective mitigating factors?
  • What discount applied to the sentence for the utilitarian value of the guilty plea?
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and head sentence?
  • What role did the significant delay between offence and prosecution play in sentencing?

Decision

The court accepted that a 25% discount for the utilitarian value of the guilty plea was appropriate. The offender had originally been charged with the more serious offence under s 33 of the Crimes Act 1900, and successfully negotiated a plea to the lesser charge under s 35(2) following representations made on his behalf. That plea was accepted by the Crown prior to the trial date.

The court identified a range of mitigating factors: the offence was not planned or organised; there was provocation (the offender had been punched); the offender was 19 at the time; he had no prior history of violence; he demonstrated remorse; his prospects for rehabilitation were assessed favourably by forensic psychiatrist Dr Eagle; and he had strong family support. The court also took into account the offender's diagnosis of schizophrenia, his extensive history of drug use including methamphetamines and cannabis, and the fact that this was his first period of actual custody.

Against those factors, the court weighed the aggravating circumstances: the attack was committed without regard for public safety; a weapon (a cricket bat) was used; and the injuries to the victim were severe and lasting. The victim impact statement was taken into account, consistent with the approach in R v Thomas [2007] NSWCCA 269, as evidence of the significant and enduring effects on the victim.

The court accepted that the offender's mental illness made him an inappropriate vehicle for general deterrence, consistent with the principles in R v Wright (1997) and DPP (Cth) v De La Rosa (2010). It also found special circumstances, noting the offender's need for an extended supervision period on release and the fact that this was his first custodial sentence. The non-parole period was set at just under half the head sentence, rather than the standard two-thirds, reflecting those special circumstances.

Orders Made

  • The offender was convicted of the offence.
  • A sentence of imprisonment of 3 years and 4 months was imposed, commencing 12 September 2017 and expiring 11 January 2021.
  • A non-parole period of 1 year and 9 months was set, expiring 11 June 2019.
  • Special circumstances were found.

Key Takeaways

  • A diagnosis of schizophrenia, supported by treating and forensic psychiatric evidence, can constitute a basis for reducing the weight given to general and specific deterrence in sentencing, consistent with the principles in DPP (Cth) v De La Rosa and R v Wright.
  • The District Court confirmed that the significant delay between offence and prosecution does not, of itself, entitle an offender to a sentencing benefit on the basis that detection was uncertain; that factor is not to be taken into account, per R v Spiers and R v Shorten.
  • Where an offender's guilty plea follows successful charge negotiations and is entered prior to a trial date, a 25% utilitarian discount may be appropriate even where the original charge was reduced as part of those negotiations.
  • Special circumstances justifying a departure from the standard non-parole period ratio can be established on the basis of a first custodial sentence combined with a need for extended post-release supervision, particularly where mental health treatment is anticipated as a condition of parole.
  • The court's treatment of the victim impact statement illustrates that such statements are taken into account as evidence of the effects of an offence, not as tested adversarial evidence, in accordance with the approach in R v Thomas [2007] NSWCCA 269.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 10

Cases
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- R v Formosa [2005] NSWCCA 363
- R v Ryan; R v MacPherson [2006] NSWCCA 394
- R v Shorten [2005] NSWCCA 106
- R v Spiers [2008] NSWCCA 107
- R v Thomas [2007] NSWCCA 269
- R v Todd (1982) 2 NSWLR 517
- R v Wright (1997) 93 A Crim R 48