Citation: R v Russell [2019] NSWDC 529
Court: District Court of New South Wales
Date: 21 March 2019
Judge: Buscombe DCJ
Background
The offender was an inmate at Goulburn Correctional Centre when, on 27 May 2017, he and two co-offenders attacked a fellow inmate shortly after that inmate was moved into their unit. The group approached the victim near the yard awning and stabbed him multiple times. When the victim fled toward the showers and fell, the group continued the attack. Corrective Services officers had to deploy chemical munitions to end the assault.
The victim suffered six stab wounds to his back and shoulders. He sustained a pneumothorax (a collapsed lung requiring a chest drain) and pulmonary contusions, and was airlifted to Canberra Hospital for specialised treatment. Two homemade shivs were later recovered from neighbouring yards, both bearing the victim's DNA; one also bore the offender's DNA on the handle.
The offender was charged on indictment with recklessly wounding the victim in company, contrary to section 35(3) of the Crimes Act 1900. He pleaded guilty during the sittings in which his trial was listed to commence, and the Crown accepted that plea in full satisfaction of the indictment.
Legal Issues
- What was the offender's individual level of culpability within a joint criminal enterprise?
- Where should the offence be placed on the range of objective seriousness?
- What discount, if any, was appropriate for the late guilty plea?
- Whether special circumstances existed justifying a departure from the standard non-parole period?
- How should the offender's extensive institutionalisation and psychological profile bear on sentence?
- Whether section 56 of the Crimes (Sentencing Procedure) Act 1999 applied, given the prior sentence had expired by the time of sentencing?
Decision
Objective seriousness and individual culpability. Buscombe DCJ assessed the offence as falling a little below the mid-range of objective seriousness. Although the offender was part of a joint criminal enterprise, culpability is assessed individually. The offender's DNA on one shiv, combined with the CCTV footage, satisfied His Honour beyond reasonable doubt that the offender personally stabbed the victim at least once. The court could not determine from the footage whether he inflicted more than one wound, and the Crown conceded the group intended to cause something less than really serious bodily harm.
Plea discount and remorse. A 10% discount was applied for the utilitarian value of the guilty plea, reflecting that the plea came late, only during the sitting when the trial was to start. The offender's statements to the forensic psychologist supported a limited finding of remorse.
Subjective circumstances and institutionalisation. The offender, aged 42 at sentence, had an extensive criminal history from age 17. A breakdown of his custody history showed he had spent less than 20 months in the community across 25 years, a pattern the court characterised as clear institutionalisation. A forensic psychologist diagnosed him with generalised anxiety disorder, major depressive disorder, and a paranoid and antisocial personality disorder. His deprived background, including removal from his mother's care at age nine and never knowing his biological father, was noted but could not outweigh the gravity of his record. Rehabilitation prospects were described as guarded.
Special circumstances and the non-parole period. His Honour found special circumstances, justifying a departure from the standard non-parole period of four years. The extended institutionalisation and the need for supervised support upon release meant a longer parole period was warranted to give the offender any realistic prospect of remaining offence-free. The court also held that section 56 of the Crimes (Sentencing Procedure) Act 1999 did not apply because the sentence the offender was serving at the time of the offence had expired by the time of sentencing.
Orders Made
- The offender was convicted of recklessly wounding in company, contrary to section 35(3) of the Crimes Act 1900.
- Sentenced to a total term of three years imprisonment, comprising a non-parole period of two years and a balance of term of one year.
- Sentence backdated to commence on 24 October 2017, expiring on 23 October 2020.
- Eligible for release on parole on 23 October 2019 pursuant to a statutory parole order, subject to the State Parole Authority's consideration of the offender's conduct in custody.
Key Takeaways
- Within a joint criminal enterprise, each participant is equally liable for the acts of the enterprise, but individual culpability for sentencing purposes is assessed by reference to that participant's own conduct, not simply attributed uniformly across all offenders.
- Forensic DNA evidence linking an offender to a weapon bearing the victim's blood can be sufficient to satisfy a court beyond reasonable doubt that the offender personally inflicted at least one wound, even where CCTV footage is unclear about the full extent of participation.
- A guilty plea entered only at the commencement of trial sittings attracted only a 10% utilitarian discount, reflecting the limited practical benefit to the justice system at that late stage.
- Severe and prolonged institutionalisation, supported by expert psychological evidence, can constitute special circumstances for the purpose of departing downward from the standard non-parole period, on the basis that an extended parole period better supports rehabilitation.
- General deterrence carries particular weight in sentencing for serious violence committed by inmates upon other inmates within a correctional facility, and the court emphasised that sentences must be of sufficient severity to deter such conduct.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), section 35(3) (reckless wounding in company; maximum 10 years, standard non-parole period 4 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 3A (objects of sentencing), section 56 (cumulative sentencing for offences committed by inmates)
Cases: No cases were cited in the judgment.