Citation: R v Jones [2019] NSWDC 914
Court: District Court of New South Wales
Date: 9 August 2019
Judge(s): Norrish QC DCJ
Background
The offender, a 45-year-old woman, appeared for sentence on a charge of aggravated breaking and entering and committing a serious indictable offence in company, contrary to s 112(2) of the Crimes Act 1900. The underlying serious indictable offence was intimidation, which carries a maximum of five years' imprisonment. The principal offence carries a maximum of 20 years' imprisonment with a standard non-parole period of five years.
The offending occurred on 8 April 2018, when the offender attended the home of a victim in Glenfield Park accompanied by a co-offender. The confrontation was motivated by a belief that the victim had been responsible for setting off fireworks near the offender's grandchildren. The offender punched the victim once in the face, though the blow was described as not hard. The co-offender, Macmillan, then sat on the victim and punched her in the face four times, before the offender intervened and told her to stop.
The offender had suffered a serious motor vehicle accident in 2017, which resulted in a subdural haemorrhage (bleeding on the brain) and left her with significant ongoing cognitive and psychiatric difficulties. These circumstances featured prominently in the sentencing exercise.
Legal Issues
- Where the offending fell within the range of objective seriousness for an offence under s 112(2) of the Crimes Act 1900, having regard to both the offender's conduct and the character of the underlying serious indictable offence
- Whether the offender's cognitive disability, caused by her traumatic brain injury, reduced her moral culpability and was relevant to sentencing
- The appropriate weight to give to a guilty plea entered on the day the trial was to commence
- Whether the s 5 threshold for imprisonment was crossed, and if so, whether the sentence should be served by way of Intensive Correction Order (ICO) rather than full-time custody
Decision
His Honour placed the offending at the lower end of the range for s 112(2) offences. The serious indictable offence was intimidation, which sits near the minimum of the offences that can underpin the section. The offending was unplanned and had an element of vigilantism, motivated by concern for the offender's grandchildren. Importantly, the offender's own conduct was less serious than that of her co-offender, and she actively intervened to stop the more serious assault.
The court accepted expert evidence from both a psychiatrist and a psychologist that the offender suffered from chronic adjustment disorder with depressed mood, and a neurocognitive disorder, both caused by the 2017 subdural haemorrhage. These conditions were present at the time of the offending and reduced her capacity for impulse control, consequential thinking, and decision-making. His Honour accepted that this reduced her moral culpability compared to the co-offender.
The plea of guilty was entered on the day the trial was to begin. His Honour allowed a 10% discount on the otherwise appropriate sentence for the utilitarian benefit of that plea, consistent with the principle that a late plea still attracts some, though reduced, discount.
His Honour concluded that the s 5 threshold was crossed, meaning imprisonment was the only appropriate penalty. However, the sentence was set at 12 months, to be served by way of an Intensive Correction Order, reflecting the offender's lower moral culpability, her cognitive difficulties, and her prospects of rehabilitation if she took personal responsibility for her conduct.
Orders Made
- The offender was convicted of the offence under s 112(2) of the Crimes Act 1900
- Sentenced to 12 months' imprisonment, to be served by way of Intensive Correction Order pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, commencing 9 August 2019
- Standard conditions applied: no offending while subject to the order, and submission to supervision by a Community Corrections officer
- Additional condition: 50 hours of community service
- Required to report to the Community Corrections office at Tumut on 14 August 2019 at 10am
- Directed to attend the Court Registry at Wagga Wagga to receive a copy of the order
Key Takeaways
- A cognitive disability arising from traumatic brain injury, supported by expert psychiatric and psychological evidence, can reduce an offender's moral culpability for a criminal offence and influence the sentencing outcome.
- Where an offender actively intervenes to stop a co-offender from continuing a more serious assault, that intervention is a relevant mitigating circumstance that may place the offender at a lower level of culpability than the co-offender.
- Under s 112(2) of the Crimes Act 1900, the court must have regard not only to the offender's own conduct but also to the character of the underlying serious indictable offence when assessing where the matter sits in the range of objective seriousness; intimidation sits near the lower end of that range.
- A guilty plea entered on the day trial was to commence attracts only a modest discount, assessed here at 10%, for the utilitarian benefit it provides to the criminal justice system.
- The District Court confirmed that even where the s 5 imprisonment threshold is crossed, a 12-month sentence can be served by way of an Intensive Correction Order where the offender's personal circumstances, including cognitive vulnerability and rehabilitation prospects, warrant that disposition over full-time custody.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 7(1), 8
Cases
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- R v Harris [2005] NSWCCA 204
- R v Huynh [2005] NSWCCA 220
- Tepania v R [2018] NSWCCA 247; (2018) 275 A Crim R 233