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District Court 29 May 2019

R v Maea

[2019] NSWDC 656

Assault & violence

Citation: R v Maea [2019] NSWDC 656
Court: District Court of New South Wales
Date: 29 May 2019
Judge(s): Bennett SC DCJ

Background

The offender, a 30-year-old man, pleaded guilty to two offences arising from a single incident on 25 May 2017 at Merrylands. The first charge was reckless wounding under s 35(4) of the Crimes Act 1900, involving a weapon-based attack on a member of the public. The second was assaulting a police officer in the execution of his duty under s 58 of the same Act.

The attack on the member of the public was described as unprovoked and random, with minimal prior contact between the offender and the victim. Closed-circuit television footage captured the incident and formed part of the agreed facts before the Court.

A further offence of damaging a police vehicle window, contrary to s 196(1)(a) of the Crimes Act 1900, was taken into account on a Form 1 in connection with the assault on police charge. Evidence before the Court indicated that the offender had a history of mental health difficulties and had been homeless at the time of the offending, having failed to maintain his prescribed medication while living on the street.

  • How to assess the objective seriousness of the reckless wounding offence against the standard non-parole period of three years set by the Crimes (Sentencing Procedure) Act 1999
  • Whether the offender's mental health, homelessness, and failure to adhere to medication reduced his moral culpability and, if so, to what extent
  • What aggregate sentence was appropriate across the two principal charges, and how to incorporate the Form 1 offence
  • What guilty plea discount applied, and how to structure the non-parole period within an aggregate sentencing framework

Decision

The District Court placed the reckless wounding offence at around mid-range in objective seriousness, acknowledging that a weapon was used, the attack was unprovoked, and there was a real risk of more serious injury despite the wound itself being relatively minor. The assault on police was assessed toward the low end of the range for that type of offence.

On the question of moral culpability, the Court drew on authority including Bugmy v R (2013) 249 CLR 571 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, recognising that the offender's mental health condition, which had materially contributed to the offending, reduced his culpability. The Court also considered that his impaired mental state at the time was a consequence of his homelessness and inability to maintain his medication regime.

The Court applied a 25% discount to each sentence to reflect the guilty pleas entered at the first available opportunity. For the reckless wounding charge, the appropriate individual sentence was determined to be three years and four months, with a non-parole period of two years and six months. For the assault on police charge, incorporating the Form 1 offence of property damage, the sentence was one year and six months. The Court then partially accumulated those sentences to produce an aggregate term.

The sentencing approach followed the intuitive synthesis methodology described in Markarian v R (2005) HCA 25, and the Court expressly noted that the standard non-parole period functions as a legislative guidepost rather than an automatic starting point, consistent with the principles articulated by Johnson J in Tepania v R [2018] NSWCCA 247.

Orders Made

  • The offender was convicted of both offences to which he pleaded guilty.
  • An aggregate sentence of four years and three months was imposed, commencing 2 June 2017.
  • A non-parole period of two years and six months was specified, expiring 1 December 2019.
  • The overall sentence expires 1 September 2021.
  • The Form 1 offence of property damage was taken into account in connection with the assault on police charge, with a Form 1 certificate issued.
  • Exhibits were ordered to remain on the court file and made available to those responsible for the offender's custody and parole preparation, to assist in establishing an appropriate treatment program.

Key Takeaways

  • The standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 operates as a legislative guidepost, not a mandatory starting point. A sentencing court assesses all relevant factors through intuitive synthesis, and the standard non-parole period need not be applied even where an offence falls at mid-range objective seriousness.

  • A mental health condition that materially contributes to an offence can reduce an offender's moral culpability, which in turn affects the weight given to retribution and denunciation as sentencing purposes, consistent with the High Court's approach in Muldrock v R and Bugmy v R.

  • Where an offender's mental illness is connected to homelessness and an inability to maintain medication, those circumstances are relevant to the sentencing exercise as mitigating factors going to moral culpability, not merely as matters of subjective background.

  • In imposing an aggregate sentence across multiple charges, the District Court is required to identify the sentence it would have imposed for each offence individually before determining the combined term, and must specify a non-parole period for any charge to which a standard non-parole period applies.

  • A 25% discount for a guilty plea entered at the first available opportunity was applied across both charges, reflecting the utilitarian and other considerations recognised under s 22 of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(4), 58, 196(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 54A, 54B, Part 4 Division 1A
- Mental Health Act 2007 (NSW)

Cases:
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) [2002] NSWCCA 518
- Borkowski (2009) NSWCCA 102
- Bugmy v R (2013) 249 CLR 571
- Director of Public Prosecutions for the Commonwealth v De La Rosa (2010) 79 NSWLR 1
- Markarian v R (2005) HCA 25
- Muldrock v R (2011) HCA 39
- R v McNaughton (2006) 66 NSWLR
- R v Qutami (2001) 127 A Crim R 369
- Tepania v R [2018] NSWCCA 247
- Veen v R (No 2) (1987-1988) 164 CLR 465