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District Court 15 April 2019

R v Greenup

[2019] NSWDC 436

Assault & violence

Citation: R v Greenup [2019] NSWDC 436
Court: District Court of New South Wales
Date: 15 April 2019
Judge: M L Williams SC DCJ

Background

The offender, a 33-year-old Aboriginal man, pleaded guilty in the Local Court to recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900. The offence occurred on 31 March 2018 at a homeless shelter in Surry Hills. Believing someone had stolen money from him, and heavily affected by drugs at the time, the offender stabbed the victim multiple times with a large 20 cm knife.

The injuries were severe and life-threatening. The victim sustained lacerations to his armpit, chest, abdomen (with bowel contents protruding), calf, and thigh, including a wound that appeared to completely sever his quadriceps muscle. He lost approximately one litre of blood and required emergency surgery, intubation, and a blood transfusion at St Vincent's Hospital.

The offender had an extensive criminal history spanning 29 pages, predominantly drug-related offending, and had spent approximately 10 years in custody over his lifetime. He had no family or social support, suffered a significant head injury causing cognitive impairment, and was diagnosed with antisocial personality disorder and substance use disorder.

  • What sentence was appropriate for an offence of recklessly causing grievous bodily harm, having regard to objective seriousness and the use of a weapon?
  • What weight should be given to the offender's Aboriginal background, cognitive impairment, and history of deprivation in assessing moral culpability and the need for deterrence?
  • Was a discount of 25% appropriate for the utilitarian value of the early guilty plea?
  • Did special circumstances exist justifying a variation to the standard ratio between the non-parole period and the total sentence?

Decision

The court characterised the offending as objectively serious. The Crown pointed to the number, depth, and location of the wounds as key factors, and the use of a knife was identified as an aggravating circumstance under the Crimes (Sentencing Procedure) Act 1999. The offender's intoxication at the time of the offence did not operate as a mitigating factor on these facts.

The only mitigating factor identified was the guilty plea, which attracted a 25% utilitarian discount. The court accepted that the offender's background, consistent with the principles in Bugmy v The Queen and DPP (Cth) v De La Rosa, was relevant to the assessment of moral culpability and the need for general deterrence, though the court described the ameliorating effect as limited. The Crown's reliance on R v Lawrence regarding the weight to be given to community protection was also acknowledged.

The court consulted JIRS sentencing statistics, drawing on approximately 170 comparable cases, while noting that such statistics are a "blunt tool." The offender's prospects of rehabilitation were described as "guarded at best," with the psychiatrist's recommended treatment regime representing the only identified basis for optimism.

Special circumstances were found, justifying a non-parole period proportionally shorter than the standard. The court grounded this finding in the need for meaningful post-release engagement and support to assist the offender's rehabilitation, given his lack of any social or family network.

Orders Made

  • The offender was convicted of the offence of recklessly causing grievous bodily harm.
  • A sentence of imprisonment of 3 years and 9 months was imposed, commencing 31 March 2018 and expiring 30 December 2021.
  • A non-parole period of 2 years and 2 months was imposed, expiring 30 May 2020, with the offender eligible for release to parole on that date.
  • Special circumstances were found.

Key Takeaways

  • The District Court confirmed that intoxication at the time of a violent offence does not necessarily operate as a mitigating factor, particularly where the offending was objectively serious and a weapon was used.
  • Under Bugmy v The Queen, an offender's Aboriginal background and history of deprivation remain relevant to the assessment of moral culpability and the need for deterrence, though the court found only a limited ameliorating effect on the facts of this case.
  • Sentencing statistics drawn from JIRS were taken into account as one guide in the sentencing process, with the court expressly noting their limitations as a "blunt tool."
  • Special circumstances warranting a reduction in the standard non-parole period ratio can be established where an offender has no social or family support and a meaningful period on parole is necessary to facilitate rehabilitation and supervised reintegration.
  • A 25% discount for the utilitarian value of a guilty plea entered in the Local Court applied, consistent with established sentencing principle under the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5

Cases:
- R v Lawrence [2005] NSWCCA 91
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Bugmy v The Queen (2013) 249 CLR 571