Citation: R v Buangern [2019] NSWDC 637
Court: District Court of New South Wales
Date: 19 March 2019
Judge: Norrish QC DCJ
Background
The offender, a Thai national and permanent resident of Australia aged in his mid-fifties, appeared for sentence on two principal offences. The first was reckless wounding, committed at Hornsby in November 2016, when he stabbed a man once in the stomach during a confrontation in his hotel room. A related assault occasioning actual bodily harm against a second person was placed on a Form 1 (meaning it was taken into account in sentencing for the principal offence without attracting a separate penalty).
The second offence was ongoing supply of prohibited drugs, specifically methylamphetamine, committed over a two-week period in January 2018. This offence was committed while the offender was on bail in respect of the 2016 offending, making it an aggravating factor under sentencing law.
The offender had no prior criminal convictions at the time of the wounding and was a person of prior good character. He had been introduced to methylamphetamine through an associate and was characterised in the proceedings as a drug user acting as a "runner" rather than a principal dealer.
Legal Issues
- How to structure and accumulate sentences for two distinct offences committed at different times, including time already spent in custody across multiple periods.
- Whether the Form 1 matter (assault occasioning actual bodily harm) warranted additional weight on deterrence and retribution when sentencing for the principal reckless wounding offence.
- The appropriate weight to give to aggravating and mitigating factors, including the breach of conditional liberty (bail), prior good character, the impulsive and unplanned nature of the wounding, and the offender's role in the drug supply chain.
- The correct sentence for the ongoing supply offence relative to the reckless wounding offence, despite the drug offence carrying a substantially higher maximum penalty.
Decision
On the reckless wounding, Norrish QC DCJ found that the stabbing was impulsive and unplanned. The offender had grabbed a knife from a nearby table during a struggle and attempted to push past the victim to follow the other person out of the room. The judge accepted that elements of self-defence were present in the circumstances, even though the offence was not excused. The Form 1 assault was closely connected in time and circumstance to the principal offence, and the judge found this was not a case calling for elevated deterrence or retribution in respect of the Form 1 matter.
On the ongoing drug supply, the court acknowledged the breach of conditional liberty as a statutory aggravating factor. Notwithstanding the drug offence carrying a maximum of 20 years compared to seven years for reckless wounding, the judge concluded that the lesser sentence should fall on the drug offending. This reflected the offender's limited role in the supply chain as a user and runner, placing his conduct at the lower end of the range of conduct captured by the ongoing supply provision.
The judge fixed a commencement date of 12 October 2017 to account for all periods of pre-sentence custody. Sentences were partially accumulated, with the non-parole period for the reckless wounding commencing after the expiry of the drug supply non-parole period. The structure produced a total sentence of three years and four months with a non-parole period of one year and ten months.
Orders Made
- Ongoing supply of prohibited drugs: Non-parole period of nine months commencing 12 October 2017, expiring 11 July 2018; balance of sentence of one year and one month expiring 11 September 2019.
- Reckless wounding (taking Form 1 into account): Non-parole period of one year commencing 12 August 2018, expiring 11 August 2019; balance of sentence of one year and six months expiring 11 February 2021.
- Total sentence: three years and four months; total non-parole period: one year and ten months.
- Eligible for release to parole: 11 August 2019.
- Sequences 1 to 5 of the related Form 1 matters withdrawn and dismissed.
Key Takeaways
- A Form 1 offence that is closely connected in both time and circumstance to the principal offence does not automatically warrant elevated weight on deterrence and retribution when sentencing for that principal offence, consistent with the approach in Attorney General's Application (No 1 2002).
- Committing a further offence while on bail is a statutory aggravating factor, but it does not, on its own, override an assessment of the objective seriousness of that offence relative to the principal offence.
- Under s 25A(1) of the Drug (Misuse and Trafficking) Act 1995, a court may impose a lesser sentence for ongoing drug supply than for reckless wounding even though the drug offence carries a considerably higher maximum penalty, where the offender's role falls at the lower end of conduct captured by the provision.
- Where a foreign national permanent resident is sentenced to imprisonment, the sentencing court may note the potential for immigration consequences without offering advice, leaving the offender to obtain independent guidance on that matter.
- Partial accumulation of sentences, with a backdated commencement date to capture multiple periods of pre-sentence custody, is an available mechanism to achieve an appropriate total sentence that reflects the totality principle.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35(3), 35(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(3), 44, 54A(2), 54B(2), Pt 4 Div 1A
- Drug (Misuse and Trafficking) Act 1995 (NSW), ss 25, 25A(1)
Cases:
- Attorney General's Application (No 1 2002) (2002) 56 NSWLR 147
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Johnson v R [2004] HCA 15
- Pearce v R (1998) 194 CLR 610
- R v Mill (1988) 166 CLR 59