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District Court 21 June 2019

R v Wyatt

[2019] NSWDC 490

Assault & violence
SENTENCE RECKLESS WOUNDING AFTER TRIAL SPECIAL CIRCUMSTANCES

Citation: R v Wyatt [2019] NSWDC 490
Court: District Court of New South Wales
Date: 21 June 2019
Judge: Bright DCJ

Background

The offender, a 36-year-old man, was charged with wounding the victim with intent to cause grievous bodily harm and, in the alternative, recklessly wounding the victim. Both offences arose from a late-night incident at the victim's home at Umina Beach on 27 January 2018. The offender had attended the premises with another male, ostensibly to retrieve property belonging to his partner, who was the victim's former partner and the mother of two of the victim's children.

After initially leaving when asked to do so, the offender re-entered the premises through an unlocked back door. When the victim attempted to remove him, the offender punched the victim in the mouth and then produced a knife with a blade approximately six inches in length. During the ensuing struggle, the offender stabbed the victim approximately three times in the arm, causing wounds that required hospital admission and surgical treatment.

The trial ran for five days before a jury. On the fifth day, shortly before the defence closing address, the offender pleaded guilty to the alternative count of reckless wounding under s 35(4) of the Crimes Act 1900.

  • What discount, if any, applied to the sentence given the late timing of the guilty plea?
  • How should the objective seriousness of the offending be assessed?
  • Which aggravating features were established, and which risked double-counting?
  • Whether special circumstances existed to justify a variation from the standard ratio between the non-parole period and the balance of parole?
  • What was the appropriate total sentence and non-parole period?

Decision

Bright DCJ assessed the objective seriousness of the offending as falling in the middle of the range. The key factors were the use of a knife as a weapon, the nature and extent of the injuries (including a wound that cut a small artery), and a finding that the victim's conduct was entirely unprovoked. The defence case at trial was that the victim had struck the offender first, but the court rejected this on the evidence, noting that the only witness to the early part of the incident had not seen how events commenced.

On aggravating features, the court accepted that the offending occurred at or in the immediate vicinity of the victim's home and that the offender was on parole at the time. Two other proposed aggravating factors were declined to avoid double-counting: the use of a weapon (already incorporated into the objective seriousness assessment) and the characterisation of the conduct as gratuitous (which overlapped with the finding of lack of provocation already taken into account).

The late guilty plea, entered on the fifth day of trial after the Crown case closed, attracted only a 5% discount. The court backdated the sentence to 20 February 2018, when the offender entered presentence custody, noting that his parole had been revoked solely because of the current offending.

The court found special circumstances warranting a departure from the standard non-parole period ratio. The offender had longstanding drug issues, and the court considered that a longer period on parole would better support rehabilitation and access to treatment. The starting point of three and a half years was discounted by 5%, producing a total sentence of three years and three months, with a non-parole period of two years and two months.

Orders Made

  • Offender convicted of one count of reckless wounding contrary to s 35(4) of the Crimes Act 1900.
  • Sentenced to a total term of three years and three months imprisonment.
  • Non-parole period of two years and two months, commencing 20 February 2018 and expiring 19 April 2020.
  • Balance of parole of one year and one month, expiring 19 May 2021.
  • In relation to a related offence of entering inclosed lands (s 166 certificate), the offence was found proved and no further penalty was imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • A guilty plea entered on the fifth day of trial, after the Crown case had closed and shortly before the defence closing address, attracted a discount of only 5% from the sentencing starting point.
  • Where an aggravating feature has already been incorporated into the assessment of objective seriousness, a sentencing court will not also treat it as a separate aggravating factor under the Crimes (Sentencing Procedure) Act 1999, as to do so would constitute impermissible double-counting.
  • Special circumstances were established where the offender's chronic drug dependency made an extended supervision period on parole appropriate to support rehabilitation, justifying a variation to the standard non-parole period ratio.
  • Under the standard non-parole period provisions, the District Court applied a starting point with reference to the prescribed standard non-parole period of three years and the maximum penalty of seven years for reckless wounding under s 35(4) of the Crimes Act 1900.
  • Parole that was revoked solely because of the offence being sentenced can ground a decision to backdate the sentence to the date the offender entered presentence custody, rather than the date of arrest.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 35(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 54B(2)

Cases:
- Imbornone v R [2017] NSWCCA 144
- Veen v R (No 2) [1988] HCA 14