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District Court 27 September 2019

R v McCook

[2019] NSWDC 636

Assault & violence

Citation: R v McCook [2019] NSWDC 636
Court: District Court of New South Wales
Date: 27 September 2019
Judge: Buscombe DCJ

Background

The offender pleaded guilty to two separate offences of violence committed while he was serving a custodial sentence. Both victims were fellow inmates, and both incidents occurred in NSW correctional facilities.

The first offence took place at Goulburn Correctional Centre on 27 May 2017. The offender and two co-offenders participated in a group attack on a newly arrived inmate, stabbing him multiple times with homemade shivs. The victim suffered six stab wounds, a collapsed lung (pneumothorax), and required airlift to Canberra Hospital for specialist treatment. The Crown accepted the offenders intended to inflict something less than really serious bodily injury, making the charge one of reckless wounding in company under s 35(3) of the Crimes Act, which carries a maximum of ten years and a standard non-parole period of four years.

The second offence occurred at the Metropolitan Remand and Reception Centre at Silverwater on 9 November 2018. The offender waited near a methadone queue, then ran at a fellow inmate and struck him five times to the head and hands with a homemade aluminium shiv. This offence was charged as wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act, which carries a maximum of 25 years and a standard non-parole period of seven years.

  • What was the appropriate level of objective seriousness for each offence, given the custodial context and the nature of the injuries?
  • How should the offender's individual culpability be assessed within a joint criminal enterprise (for the 2017 offence)?
  • What weight should be given to the offender's history of institutionalisation as a mitigating subjective factor?
  • How should parity with co-offenders be applied in fixing the sentence for the 2017 offence?
  • What role did general and specific deterrence play, given the prison setting?
  • Were special circumstances established warranting a departure from the standard ratio between non-parole period and total sentence?

Decision

On objective seriousness, Buscombe DCJ assessed the 2017 reckless wounding offence as slightly below the mid-range. The attack was ferocious and involved weapons, but the Crown's concession that the offenders did not intend really serious bodily injury moderated the culpability assessment. The injuries, while significant and requiring hospitalisation, were ultimately survivable. Parity with the already-sentenced co-offenders was also a relevant consideration.

The 2018 wounding with intent offence was assessed as below mid-range in objective seriousness. It appeared to involve some degree of planning, given the offender waited near the methadone queue armed with a shiv. However, the injuries, while requiring suturing, were not life-threatening and did not necessitate hospitalisation. His Honour noted the targeting of the victim's head as an aggravating feature.

On subjective matters, the offender's lengthy history of institutionalisation weighed in his favour to a degree. The court applied the principles in Bugmy v The Queen, which recognise that a background of profound deprivation and deep-seated institutionalisation may reduce the role of general deterrence, though this consideration had limits given the offender's prior record. Special circumstances were found to exist, justifying a longer-than-standard balance of term, primarily to allow for supervised reintegration into the community given the extent of institutionalisation.

General deterrence was treated as a significant sentencing consideration for both offences. The District Court emphasised that acts of violence within prisons undermine institutional discipline and that prisoners are entitled to serve their sentences without being subjected to unprovoked attacks. Given the offender's criminal record, specific deterrence was also a relevant factor.

Orders Made

  • Convicted of both offences.
  • Reckless wounding in company (2017): Total sentence of 2 years and 9 months, comprising a non-parole period of 1 year and 10 months plus a balance of term of 11 months. Sentence commenced 27 August 2017; non-parole period expired 26 June 2019; sentence expires 26 May 2020.
  • Wounding with intent to cause grievous bodily harm (2018): Total sentence of 5 years, comprising a non-parole period of 3 years plus a balance of term of 2 years. Sentence commenced 27 August 2018; non-parole period expires 26 August 2021; sentence expires 26 August 2023.
  • Aggregate: Total head sentence of 6 years; total non-parole period of 4 years. Aggregate sentence dates from 22 August 2017, with a non-parole period expiring 26 August 2021 and full sentence expiring 26 August 2023.
  • Earliest release to parole is 26 August 2021, subject to the State Parole Authority's determination.

Key Takeaways

  • Violence committed within a custodial setting attracts significant weight on general deterrence grounds. The District Court treated the prison environment as a factor elevating the importance of deterrence, on the basis that inmates are entitled to serve their sentences without being subjected to unprovoked attacks.
  • Within a joint criminal enterprise, each participant bears equal legal responsibility for acts carried out in furtherance of the enterprise, but individual culpability is assessed by reference to each person's own conduct, not the collective acts of the group.
  • Under the principles in Bugmy v The Queen, a history of institutionalisation may reduce the weight given to general deterrence as a sentencing consideration, though that reduction is not unlimited where the offender has a substantial prior criminal record.
  • Special circumstances, justifying a longer balance of term relative to the non-parole period, were found where the extent of the offender's institutionalisation indicated a need for extended supervised support on release.
  • Departure from the standard non-parole periods under the Crimes (Sentencing Procedure) Act was justified here by the court's assessment of objective seriousness as below mid-range, combined with the utilitarian value of the guilty pleas.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 35(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- R v McNaughton (2006) 66 NSWLR 566
- Veen v R (No 2) (1988) 164 CLR 465
- Muldrock v R (2011) 244 CLR 120