Citation: R v Phillip (a pseudonym) [2019] NSWDC 448
Court: District Court of New South Wales
Date: 12 August 2019
Judge: Colefax SC DCJ
Background
The offender, referred to by the pseudonym Phillip, was sentenced for two offences committed on 2 November 2017, when he was 17 years old and approaching his 18th birthday. The principal offence was wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment. The second offence was common assault under s 61 of the same Act.
The offending arose from a confrontation at a suburban Sydney shopping centre. After being verbally challenged about a prior assault on a 14-year-old boy, Phillip adopted an aggressive stance and invited a fight. When the other party walked away, Phillip armed himself with a wet floor sign and a knife he had purchased earlier that day. He ran up behind the victim and threw the sign, then immediately stabbed the victim once in the left chest with a 24-centimetre knife.
The victim was taken to Westmead Hospital, where he nearly died. He spent two months in hospital and suffered lasting physical and psychological harm, including multiple attempts to take his own life. His victim impact statement was before the court.
Legal Issues
- What sentences were appropriate for the wounding and assault offences, having regard to the objective seriousness of each?
- What guilty plea discounts applied, and whether the manner in which the sentence hearing was conducted affected the discount available for the wounding offence?
- Whether the standard non-parole period applied to a juvenile offender?
- Whether special circumstances existed to vary the ratio of the non-parole period to the head sentence?
- Whether s 19 of the Children (Criminal Proceedings) Act 1987 (NSW) was engaged so as to require continued detention in a juvenile facility?
Decision
Objective seriousness and starting points. The District Court assessed the wounding offence as slightly above mid-range for its kind, and the common assault as towards but not at the bottom of its range. Had Phillip been an adult without psychological or psychiatric issues, the court regarded an appropriate sentence for the wounding as 15 to 16 years imprisonment. Because of Phillip's youth and documented psychiatric conditions arising from the loss of his brother and his own prior stabbing, the court reduced that starting point to 9 years.
Guilty plea discounts. Phillip entered his guilty plea to the wounding offence approximately two months before trial, attracting a 10 percent discount rather than a higher one. The court noted that a contested facts hearing was made necessary by a reservation to the agreed facts that had not been communicated to the Crown until the sentence hearing commenced. Phillip was effectively unsuccessful in that hearing, having failed to establish on the balance of probabilities that the victim was armed, or that his conduct was a response to any provocation. The early plea in the Children's Court to the common assault attracted a 25 percent discount.
Special circumstances and non-parole period. The standard non-parole period did not apply because Phillip was a juvenile at the time of the offence. The court declined to make a finding under s 19 of the Children (Criminal Proceedings) Act that would justify continued detention in a juvenile facility. However, the court found special circumstances to vary the usual ratio of the non-parole period to the head sentence, citing Phillip's age, the fact this was his first time in custody, the need for a longer parole period to support rehabilitation, and his psychological condition.
General and specific deterrence. The court considered that general deterrence was of reduced weight given Phillip's youth and psychological conditions. It treated specific deterrence and the encouragement of rehabilitation as fully engaged.
Orders Made
- Wounding offence (s 33(1)(a) Crimes Act): sentenced to 8 years imprisonment (9 years less 10% discount), with a non-parole period of 4 years commencing 2 November 2017 and expiring 1 November 2021, and a balance of term of 4 years commencing 2 November 2021 and expiring 1 November 2025.
- Common assault (s 61 Crimes Act): sentenced to a fixed term of 3 weeks imprisonment (1 month less 25% discount), commencing 2 November 2017 and expiring 22 November 2017.
- Both sentences ran concurrently.
- No order made under s 19 of the Children (Criminal Proceedings) Act for continued detention in a juvenile facility.
Key Takeaways
- The District Court confirmed that the standard non-parole period under the Crimes Act does not apply where an offender was a juvenile at the time of the offence, though the offence may still be treated as a serious child indictable offence.
- A late or qualified guilty plea attracts a reduced discount. Here, the failure to disclose a reservation to agreed facts until the sentence hearing commenced, resulting in an adjourned contested facts hearing, was a relevant consideration in fixing the discount at 10 percent.
- Special circumstances justifying a departure from the standard non-parole period ratio were found on the basis of the offender's youth, first-time custody status, rehabilitative needs, and psychiatric history, even though no order was made for continued detention in a juvenile facility.
- Where a juvenile offender has a documented history of trauma and resulting psychological conditions, the sentencing court may give reduced weight to general deterrence without displacing specific deterrence entirely.
- Conduct by an offender in custody after sentencing, such as ongoing misconduct and fighting, was noted by the court as a matter that would be relevant to the Parole Authority's assessment of parole eligibility.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a) and 61
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6 and 19
Cases cited: No cases were cited in the provided text.