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District Court 26 April 2019

R v Sartorel

[2019] NSWDC 373

Assault & violence

Citation: R v Sartorel [2019] NSWDC 373
Court: District Court of New South Wales
Date: 26 April 2019
Judge(s): Buscombe DCJ

Background

The offender, a 33-year-old woman, was an inmate at Parklea Correctional Centre when, on 2 December 2017, she wounded a fellow inmate by striking him in the neck area with a shiv (an improvised knife). The incident followed a physical altercation in which the victim had punched the offender to the back and side of the head. A co-offender supplied the shiv to the offender during the confrontation.

The offender retrieved the shiv from the co-offender's clothing, concealed it behind her back, advanced on the victim, and struck him at least twice. The victim sustained two puncture wounds to his neck, bruising to his forehead, and was treated at the prison health clinic without requiring hospitalisation. Corrective Services officers who attended the scene issued a direction to stop fighting, which was ignored.

The offender pleaded guilty in the Local Court and maintained that plea in the District Court. She was serving a lengthy sentence imposed in 2011 for robbery in company causing wounding and armed robbery at the time of the offence, and had not been released to parole at the expiry of the non-parole period set by the original sentencing judge.

  • What was the appropriate sentence for reckless wounding in company under s 35(3) of the Crimes Act 1900, with a maximum penalty of 10 years and a standard non-parole period of four years?
  • How should the offender's significant criminal history, including prior serious violent offences, operate as an aggravating factor?
  • What weight should be given to mitigating factors, including the offender's deprived background, history of abuse, and early guilty plea?
  • Whether special circumstances existed to justify departing from the statutory ratio between the non-parole period and the balance of term.

Decision

Buscombe DCJ assessed the objective seriousness of the offence as well below the notional mid-range. The court accepted that the offending was relatively impulsive, arose in the context of some provocation, involved no real planning, and resulted in injuries at the lower end of the scale. However, the court found that any immediate threat from the victim had dissipated before the offender struck him, and that the offence carried an element of retribution or payback. The use of a shiv was a significant feature.

The offender's criminal history was treated as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999, consistent with the principles in Veen (No 2) and R v McNaughton. The court noted a pattern of violent offending and weapon use extending from the offender's juvenile years. The current offence was committed while she was serving sentences for very serious violent crimes, and a custodial infringement for possession of an offensive weapon had occurred as recently as May 2018.

On the subjective side, the court accepted evidence of a deeply troubled background: childhood placement in foster care, physical abuse, a diagnosis of ADHD, and a sexual assault in custody. The principles from Bugmy v R (concerning the enduring relevance of severe childhood deprivation to sentencing) were applied. The offender had spent almost her entire adult life in continuous custody since age 18, which the court considered relevant to the risk of institutionalisation and the weight of general deterrence.

The court departed from the standard non-parole period, citing the level of objective seriousness and the early guilty plea. General and specific deterrence were identified as significant sentencing purposes, with the court noting the particular importance of deterring violent conduct among inmates in correctional facilities. The co-offender's lesser sentence, imposed in the Local Court, was considered, but the court distinguished the roles: the offender had inflicted the wounds, while the co-offender had merely supplied the shiv.

Orders Made

  • The offender was convicted of reckless wounding in company.
  • Sentenced to full-time imprisonment of two years and three months, commencing 2 April 2018 and expiring 1 July 2020.
  • Non-parole period of 18 months, expiring 1 October 2019.

Key Takeaways

  • The District Court confirmed that violent conduct by inmates against fellow prisoners attracts a meaningful sentence in which both general and specific deterrence carry significant weight, given the need to assist in maintaining control within correctional facilities.
  • A criminal history involving serious violence and weapon use can operate as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999, even where the current offence is assessed as well below mid-range objective seriousness.
  • Under Bugmy v R, severe childhood deprivation and a history of abuse retain mitigating relevance at sentencing, even for an offender with an extensive record and a pattern of violent conduct.
  • Committing an offence while already serving a custodial sentence for earlier violent offences remains a relevant circumstance in assessing the offender's prospects of rehabilitation and the weight to be given to deterrence.
  • Where an early guilty plea is entered and objective seriousness is assessed as low, a departure from the standard non-parole period may be justified, with the standard non-parole period still serving as a legislative guidepost rather than a starting point.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(3) (reckless wounding in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases
- Bugmy v R (2013) 249 CLR 571
- R v McNaughton (2006) 66 NSWLR 566
- Veen (No 2) (1988) 164 CLR 465