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District Court 6 March 2019

R v Lambell

[2019] NSWDC 78

Assault & violence

Citation: R v Lambell [2019] NSWDC 78
Court: District Court of New South Wales
Date: 6 March 2019
Judge: Grant DCJ

Background

The offender was originally indicted for wounding with intent to cause grievous bodily harm (maximum: 25 years, standard non-parole period: 7 years) arising from an attack on a fellow inmate at Parklea Correctional Centre on 9 November 2016. On the day set for trial, the Crown obtained leave to file a fresh indictment adding an alternative count of reckless wounding whilst in company under s 35(3) of the Crimes Act 1900 (maximum: 10 years).

The offender pleaded not guilty to the original count and guilty to the alternative count. The Crown accepted that plea in full satisfaction of the indictment. The central sentencing questions were whether the guilty plea attracted a full discount as an "earliest opportunity" plea, and what sentence was appropriate given the circumstances of a gaol-based attack.

The facts showed that the offender and a co-offender followed the unarmed victim from his cell into the yard, while both carried improvised stabbing devices known as shivs. The victim was stabbed four times, sustaining wounds that penetrated the liver and required surgery. He was hospitalised for several days.

  • Whether a plea of guilty entered at the first opportunity after the Crown indicated willingness to accept a plea to a lesser charge should receive the full discount for an early plea.
  • Whether the discount should be reduced on the basis that the plea arose from a plea bargain or was offered late in proceedings.
  • What sentence was appropriate, having regard to the objective seriousness of the offence, its commission in custody, the offender's personal circumstances, and general deterrence.

Decision

The plea discount issue. Grant DCJ held that the plea was entered at the earliest available opportunity and attracted a full 25% discount. His Honour followed the reasoning in R v Dib [2003] NSWCCA 117, in which Hodgson JA and Dowd J held that a plea offered as soon as the Crown accepts a lesser charge should be treated as made at the first opportunity, because the presumption of innocence on the original charge remains intact and no adverse inference can be drawn from the timing.

His Honour expressly rejected the approach taken by Howie J in R v Borkowski (2009) 195 A Crim R 1, which suggested that the utilitarian value of a plea is diminished where it arises from a plea bargain. Grant DCJ characterised that remark as obiter and as a misconstruction of Dib. He noted that the "rule of thumb" approach in Borkowski had itself been sharply criticised by RS Hulme AJ in Mooney v R [2016] NSWCCA 231, who observed that no principled reason had been advanced to support it.

Objective seriousness and aggravating factors. The court treated the offence as moderately serious. Aggravating factors included the use of a weapon, the pursuit of the victim through the gaol, and the commission of the offence in company and in custody. The nature of the injuries (including a penetrating wound to the liver) placed them at the low-to-mid range of the spectrum for grievous bodily harm offences. General deterrence and the maintenance of prison safety were identified as significant sentencing considerations.

Personal circumstances. The offender was 28 at the time of sentencing with a relevant prior criminal history. His counsel relied on Bugmy v R [2011] HCA 37, and Grant DCJ accepted that the offender's moral culpability was reduced by deprivation in his formative years. The court also noted his compliance with onerous Supreme Court bail conditions, absence of post-offence criminality, and the completion of parole. Despite those mitigating factors, the court expressed guarded optimism about rehabilitation prospects.

Orders Made

  • The offender was convicted of reckless wounding whilst in company contrary to s 35(3) of the Crimes Act 1900.
  • Sentenced to 2 years imprisonment, backdated to 5 March 2017.
  • The effect of the backdating was that the sentence had expired by the date of the sentencing hearing, and the offender was released.

Key Takeaways

  • The District Court followed R v Dib in holding that a plea entered at the first opportunity after the Crown indicated acceptance of a lesser charge qualifies as a plea at the "earliest opportunity," attracting the full utilitarian discount, because the presumption of innocence on the original charge cannot be displaced.
  • Grant DCJ expressly departed from the obiter remarks of Howie J in R v Borkowski, which suggested the utilitarian value of a plea is diminished where it arises from a plea bargain. The District Court characterised those remarks as a misconstruction of Dib and inconsistent with the presumption of innocence.
  • The decision confirms that Dib remains the operative authority in New South Wales on how to treat guilty pleas that follow Crown acceptance of a reduced charge, subject to any contrary ruling from a higher court.
  • Sentencing for offences committed in custody attracts particular weight on general deterrence, with the safe running of prisons identified as an independent sentencing consideration.
  • Under Bugmy, deprivation during an offender's formative years can reduce moral culpability even where the offence is a serious violent one committed in gaol.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(a), 35(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(b)
- Criminal Procedure Act 1986 (NSW)

Cases
- R v Dib [2003] NSWCCA 117
- R v Borkowski (2009) 195 A Crim R 1
- Mooney v R [2016] NSWCCA 231
- Bugmy v R [2011] HCA 37
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- R v Hoskins [2004] NSWCCA 236
- Osenkowski [1982] 5 A Crim R 394