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District Court 2 May 2019

R v Hinton

[2019] NSWDC 380

Assault & violenceFirearms & weapons

Citation: R v Hinton [2019] NSWDC 380
Court: District Court of New South Wales
Date: 2 May 2019
Judge: Buscombe DCJ

Background

The offender, a 29-year-old Aboriginal man, pleaded guilty in the Local Court to causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act. The offence carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of seven years. The guilty plea was maintained before the District Court at sentence.

In the early hours of 17 November 2017, the victim and a witness were walking through Kingswood Train Station when the offender approached them at the bottom of a stairwell. Without provocation, the offender struck the victim on the left side of his head with a large piece of wood, causing him to fall to the ground, then kicked him while he lay there. The victim suffered a fractured skull, subdural haematoma, and a small extra-axial haematoma near the left temporal pole. He was hospitalised for eight days and subsequently referred to the Westmead Brain Injury Unit.

At the time of the offence, the offender was on parole for an earlier armed robbery conviction. He told police he could not remember the incident and attributed his conduct to heavy drug use, including a Xanax habit.

  • What was the appropriate level of objective seriousness for this offence?
  • What weight should the offender's extensive criminal history and prior violence carry in sentencing?
  • How should the offender's deprived background, Aboriginal heritage, and disadvantaged upbringing be reflected in the sentence, consistent with Bugmy v The Queen?
  • Were special circumstances established to justify departing from the standard non-parole period?
  • How should the totality principle apply given the offender was serving a parole period at the time of the offence?

Decision

Objective seriousness: Buscombe DCJ assessed the offence as falling within the mid-range of objective seriousness. The attack was unprovoked, random, and carried out with a weapon against a defenceless victim. The blow was directed to the head, a particularly vulnerable part of the body, and the victim was kicked while on the ground. The use of a weapon was treated as a statutory aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act.

Criminal history and aggravating factors: The offender's criminal record was extensive, beginning with control orders as a juvenile at age 15 and including, as an adult, a prior conviction for the same category of offence. The offender had spent almost his entire adult life in custody, accumulating only approximately 12 months of liberty since late 2006. His record disentitled him to leniency and was treated as a further aggravating factor, consistent with Veen (No 2) and R v McNaughton, though the court was careful to note that prior record cannot be weighted so heavily as to produce a sentence disproportionate to the gravity of the current offence.

Subjective considerations: The court applied Bugmy v The Queen in giving weight to the offender's severely deprived background. He was born to heroin-addicted parents, spent years in foster care, was exposed to criminal associates and illicit substances from childhood, and had experienced extensive periods of incarceration since age 10. A forensic psychologist's report noted that by age 10, the offender had developed a survival-based moral code rooted in criminality. These circumstances, while not diminishing the seriousness of the offence, were relevant to moral culpability.

Special circumstances and totality: The court found special circumstances existed, given the offender's almost continuous incarceration since adolescence and the need for an extended period of supervised parole to support rehabilitation. This justified a departure from the standard non-parole period. Applying the totality principle, the sentence was backdated to 26 May 2018 to account for the armed robbery parole period then being served.

Orders Made

  • Offender convicted of causing grievous bodily harm with intent under s 33(1)(b) of the Crimes Act.
  • Sentenced to seven and a half years' imprisonment, commencing 26 May 2018 and expiring 25 November 2025.
  • Non-parole period of five years, expiring 25 May 2023.

Key Takeaways

  • The District Court assessed a random, weapon-assisted, unprovoked attack causing a fractured skull and intracranial bleeding as falling in the mid-range of objective seriousness for an offence of causing GBH with intent.
  • Under Bugmy v The Queen, the sentencing court gave weight to the offender's severely deprived Aboriginal background, including parental incarceration, foster care, early exposure to criminal culture, and childhood institutionalisation, as bearing on moral culpability without reducing the objective gravity of the offence.
  • A prior conviction for the same category of offence, combined with commission of the current offence while on parole, each operated as distinct statutory aggravating factors under the Crimes (Sentencing Procedure) Act.
  • Although prior criminal record is an aggravating factor, the principle from Veen (No 2) limits its weight so that the sentence remains proportionate to the instant offence.
  • Special circumstances were established where an offender had spent almost no continuous time in the community since adolescence, warranting an extended balance of term to facilitate supervised reintegration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Hayek v R [2016] NSWCCA 126
- Muldrock v The Queen (2011) 244 CLR 120
- R v Henry (1999) 46 NSWLR 346
- R v McNaughton (2006) 66 NSWLR 566
- Veen (No 2) (1988) 164 CLR 465