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District Court 12 June 2019

R v McWaters

[2019] NSWDC 872

Assault & violence
CRIMINAL LAW SENTENCE RECKLESS WOUNDING IN COMPANY AGGRAVATION ON PAROLE AT TIME OF OFFENDING.

Citation: R v McWaters [2019] NSWDC 872
Court: District Court of New South Wales
Date: 12 June 2019
Judge: Judge W Hunt

Background

The offender pleaded guilty to one count of reckless wounding in company under s 35(3) of the Crimes Act, an offence carrying a maximum penalty of ten years and a standard non-parole period of four years. The plea was entered on the first day of a listed trial, following committal from Wollongong Local Court.

The offence arose from a drug transaction on 24 August 2017. The victim entered a vehicle to complete the transaction when a co-offender arrived at the scene. Within minutes, the offender produced a knife and stabbed the victim seven times in a confined space, wounding him in the chest, forearm, knees and thigh. The victim was hospitalised for three days and required surgery. The co-offender, who was present and later punched the victim, had already been sentenced separately for assault occasioning actual bodily harm.

At the time of the offence, the offender had been on parole for only a matter of weeks. His parole was revoked following his arrest, and he served the balance of that parole period before returning to remand.

  • How to assess the objective seriousness of the offending, including the role of provocation and the victim's own conduct
  • Whether the aggravating circumstance of offending on parole should materially increase the sentence, given the parole had already been revoked and served
  • How to apply the sentencing discount for a late guilty plea
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio under s 44 of the Crimes (Sentencing Procedure) Act
  • Whether parity with the co-offender's sentence was a relevant consideration

Decision

Judge Hunt assessed the objective seriousness of the offending as just above the mid-range. Relevant factors included the use of a knife with a blade of approximately 15 centimetres, seven stab wounds inflicted in a confined vehicle, the presence of the co-offender as an additional aggressor, and some degree of pre-planning evidenced by the text message exchange. While the victim had thrown two punches at the offender before the stabbing, the judge found the response was massively disproportionate to that level of provocation. The victim's participation in a drug transaction did not mitigate or aggravate the offender's conduct.

The offender's criminal history denied him leniency. His record dated from 2010 and included matters dealt with in the Children's Court, as well as subsequent convictions for driving, dishonesty, and other offences, though none involving personal violence prior to this matter. The offending on parole constituted a statutory aggravating circumstance. However, consistent with the principle in R v Callahan, the judge declined to significantly increase the sentence on that basis, given the offender had already served the revoked parole period and an excessive uplift would amount to double counting.

A forensic psychology report was accepted as reliable and given weight. It disclosed opiate use disorder in sustained remission, a tendency toward impulsivity, and an encouraging rehabilitation prognosis if a structured treatment plan was followed. The judge took into account the offender's relative youth, his extended time on remand in maximum security (through no fault of his own), and the delay between the plea and sentence. These factors were considered in a diluted way to temper the sentence.

The judge found special circumstances existed, justifying a longer parole period than the statutory default, to allow for implementation of the recommended treatment plan. A starting point of four years was reduced by approximately 10 per cent for the guilty plea, yielding a final sentence of three years and seven months.

Orders Made

  • Offender convicted of reckless wounding in company under s 35(3) of the Crimes Act
  • Sentence of three years and seven months, commencing 21 May 2018 and expiring 20 December 2021
  • Non-parole period of two years and nine months, with earliest parole eligibility date of 20 February 2020
  • Special circumstances found, adjusting the non-parole period ratio
  • Recommendation that the State Parole Authority give effect to the treatment plan set out in paragraph 28 of the forensic psychology report

Key Takeaways

  • The District Court confirmed that where an offender has already served a revoked parole period prior to sentencing, the aggravating circumstance of offending on parole should not significantly inflate the head sentence, as doing so risks impermissible double counting: R v Callahan [2006] NSWCCA 58.

  • A victim's minor provocation, such as throwing two punches, can be acknowledged as a mitigating factor but will carry little weight where the offender's response was grossly disproportionate.

  • Participation by the victim in a drug transaction connected to the offence neither mitigates nor aggravates the offender's criminal conduct.

  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act can be established where a structured rehabilitation plan requires a longer post-release supervision period, particularly for a younger offender with identified treatment needs.

  • Parity between co-offenders is not strictly engaged where the charges, criminal antecedents, and factual circumstances of each offender differ materially: R v JW (2010) 77 NSWLR 7.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(3) (reckless wounding in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (standard non-parole periods)

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- R v Callahan [2006] NSWCCA 58
- R v Jinette [2012] NSWCCA 217
- R v JW (2010) 77 NSWLR 7