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District Court 21 March 2019

R v Pearce

[2019] NSWDC 530

Assault & violence

Citation: R v Pearce [2019] NSWDC 530
Court: District Court of NSW
Date: 21 March 2019
Judge: Buscombe DCJ

Background

The offender, a serving prisoner at Goulburn Correctional Centre, pleaded guilty to recklessly wounding a fellow inmate on 27 May 2017. The offence was committed in company with two co-offenders shortly after the victim had been moved into the same prison unit. The group attacked the victim near an awning, stabbing him multiple times, and continued the assault after he fell to the ground. The attack only ceased after Corrective Services officers deployed chemical munitions.

The victim suffered six stab wounds to the back and shoulders, a collapsed lung (pneumothorax) requiring a chest drain, and a pulmonary contusion. He was airlifted to Canberra Hospital for specialised treatment. Two homemade weapons (known as "shivs") were recovered from neighbouring yards, where CCTV footage showed the offenders had thrown them. DNA matching the victim was found on both weapons.

The offender was already serving a 20-year sentence for a murder committed in 2007, with a non-parole period running until 18 August 2022. The sentencing court dealt with his co-offender, Damien Russell, in the same sittings.

  • What was the appropriate objective seriousness of the offence, and how did participation in a joint criminal enterprise affect the assessment of the offender's individual culpability?
  • What weight should be given to the offender's deeply deprived background under the principles in Bugmy v R (2013) 249 CLR 571?
  • What discount applied for the late guilty plea?
  • Should special circumstances be found to vary the standard ratio between non-parole period and total sentence?
  • How should the new sentence be structured in relation to the existing sentence under s 56 of the Crimes (Sentencing Procedure) Act?
  • Was parity with the co-offender Russell maintained?

Decision

Buscombe DCJ assessed the objective seriousness of the offence as slightly below the mid-range. While the attack was swift and ferocious, the Crown conceded that the offenders intended to inflict something less than really serious bodily harm. The judge was satisfied beyond reasonable doubt that the offender personally stabbed the victim, though the precise number of stab wounds attributable to him individually could not be determined from the CCTV footage.

Turning to the offender's personal circumstances, the court noted a deeply troubled background including parental drug addiction, exposure to serious domestic violence as a child, multiple foster care placements, and almost no formal education. These matters engaged the principles in Bugmy, which recognise that severe childhood deprivation can diminish moral culpability and must be taken into account at sentencing, even for serious offenders with lengthy criminal records. The court weighed this against a significant criminal history commencing in juvenile years and an assessment of poor prospects for rehabilitation.

The guilty plea was entered during the sittings in which the trial was listed. Because this late timing still had utilitarian value (avoiding the attendance of multiple Corrective Services witnesses), a 10% discount was applied. The court found no basis for a finding of special circumstances, given that the lengthy parole period already attached to the murder sentence provided more than adequate opportunity for supervised reintegration.

On parity with co-offender Russell, the court found no material distinction in the degree of involvement in the offence. The slightly more favourable outcome for Russell was explained by his marginally better rehabilitation prospects and some limited evidence of remorse beyond the guilty plea, neither of which was present for the offender here. General deterrence was identified as a particularly important sentencing consideration for serious violence committed by inmates against fellow inmates in custodial settings.

Orders Made

  • The offender was convicted of recklessly wounding in company, contrary to s 35(3) of the Crimes Act.
  • Total sentence of three years imprisonment imposed.
  • Non-parole period of two years and three months, with a balance of term of nine months.
  • Sentence commences 18 August 2022 and expires 17 August 2025.
  • Non-parole period expires 17 November 2024, being the earliest date of eligibility for release to parole.
  • Release to parole on that date remains a matter for the State Parole Authority.

Key Takeaways

  • In a joint criminal enterprise, each participant bears equal criminal responsibility for acts committed in furtherance of the enterprise, but a court must still assess each participant's individual culpability by reference to their own conduct.
  • Under Bugmy v R, a severe and deprived childhood background remains a relevant mitigating factor at sentencing, even where the offender has a lengthy criminal history and is already serving a significant custodial term.
  • A guilty plea entered during the trial sittings, rather than at an earlier opportunity, attracted only a 10% utilitarian discount in these circumstances.
  • No special circumstances were found where the existing murder sentence already carried a substantial parole period, rendering an extended balance of term unnecessary to facilitate reintegration.
  • General deterrence carries particular weight when sentencing for serious violence committed by inmates on fellow inmates within a correctional centre.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(3) (reckless wounding in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (objects of sentencing), s 56 (cumulative and concurrent sentences for offenders already subject to sentence)

Cases:
- Bugmy v R (2013) 249 CLR 571