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District Court 4 October 2019

R v Rush

[2019] NSWDC 883

Assault & violence
SENTENCING RELEVANT FACTORS ON SENTENCE GUILTY PLEA LIFE THREATENING WOUND UNPROVOKED STABBING NO RATIONALE FOR OFFENCE

Citation: R v Rush [2019] NSWDC 883
Court: District Court of New South Wales
Date: 4 October 2019
Judge: Haesler SC DCJ

Background

The offender and his victim had been close friends since childhood. In the early hours of 26 May 2018, during a night of heavy drinking in Wollongong, the offender produced a large hunting knife and plunged it into the victim's chest while the two were talking through the window of a car. The wound penetrated the victim's heart. Medical staff at Wollongong Hospital saved his life; the reported survival rate for injuries of that kind is between 9 and 12%.

The offender was arrested the same day and had remained in custody since. He offered to plead guilty to causing grievous bodily harm while reckless as to causing actual bodily harm, under s 35(2) of the Crimes Act 1900, but the prosecution initially pressed the more serious charge of wounding with intent to cause grievous bodily harm. The lesser plea was ultimately accepted in full satisfaction of the indictment at a special call-over in July 2018.

The matter came before the District Court for sentencing on the s 35(2) offence. The Crown submitted the offending was a particularly serious example of its type. The offender's counsel submitted that the victim's good recovery placed the matter toward the lower end of the spectrum.

  • What was the appropriate objective seriousness of the offending, having regard to the nature of the wound, the weapon used, and the absence of provocation?
  • What weight should be given to the offender's extreme intoxication at the time of the offence?
  • What discount applied for the early offer to plead guilty, and did special circumstances justify a departure from the standard non-parole period?
  • How should the sentencing purposes of punishment, deterrence, community protection, and rehabilitation be balanced in fixing the sentence?

Decision

Haesler SC DCJ assessed the offending as objectively serious. The stabbing was entirely unprovoked, the victim was a close friend, the weapon was a large hunting knife, and the wound was potentially fatal. The offender offered no rational explanation for the attack. The court accepted that the victim's survival and recovery were relevant to the overall picture, but concluded that only a significant custodial sentence could reflect the gravity of what occurred.

On intoxication, the court applied s 21A(5AA) of the Crimes (Sentencing Procedure) Act and s 428D of the Crimes Act 1900, which provide that self-induced intoxication does not mitigate offending of this kind. The court treated the extreme intoxication not as a mitigating factor but as a contextual explanation, noting it helped account for why the attack occurred and that the victim had not been deliberately targeted.

The offender had some prior criminal history, though nothing as serious as this offence. He gave evidence of remorse and had made an early offer to plead. The court found his guilty plea genuine and accepted that special circumstances existed, warranting a longer parole period than the standard. A full 25% discount was applied for the early offer to plead. The court also had regard to the need for rehabilitation, particularly addressing alcohol addiction, and recommended the offender access the custodial EQUIPS programme.

The court drew on Munda v Western Australia (2013) 249 CLR 600 for the proposition that courts must vindicate victims' dignity, express community disapproval of violent offending, and maintain community confidence that violent offences involving weapons will attract meaningful punishment.

Orders Made

  • Total sentence of 3 years and 4 months imprisonment.
  • Non-parole period of 2 years, commencing 26 May 2018, with eligibility for parole from 25 May 2020.
  • Parole period of 1 year and 4 months following the non-parole period.
  • Recommendation that the custodial EQUIPS programme be made available to the offender.
  • Recommendation that the offender seek access to drug and alcohol counselling.

Key Takeaways

  • Under s 21A(5AA) of the Crimes (Sentencing Procedure) Act and s 428D of the Crimes Act 1900, self-induced intoxication does not mitigate or excuse serious offences of violence, even where the intoxication was extreme and the offender lacked any rational motive for the attack.
  • An early offer to plead guilty to an alternative count, made before the prosecution accepted that plea, can still attract a meaningful discount where the court is satisfied the offer was genuine and timely.
  • Special circumstances justifying a longer parole period were established where the offender's rehabilitation needs, including alcohol dependency, and the circumstances of the plea warranted more time under supervision in the community.
  • The District Court confirmed that sentencing for violent offences involving weapons must give substantial weight to community denunciation, the vindication of victims' dignity, and general deterrence, consistent with the High Court's reasoning in Munda v Western Australia.
  • A victim's fortunate recovery does not reduce the objective seriousness of a near-fatal stabbing to the lower end of the range; the nature of the weapon, the absence of provocation, and the inherent danger of the wound remain significant factors in their own right.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2) (causing grievous bodily harm while reckless as to causing actual bodily harm); s 428D (intoxication)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA) (intoxication not a mitigating factor)

Cases:
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600