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District Court 30 August 2019

R v Hand

[2019] NSWDC 917

Assault & violenceDomestic & family violence
CRIME SENTENCE ASSAULT OCCASIONING ACTUAL BODILY HARM SERIOUSNESS OF OFFENCE SUBJECTIVE MATTERS

Citation: R v Hand [2019] NSWDC 917
Court: District Court of New South Wales
Date: 30 August 2019
Judge(s): King SC DCJ

Background

The offender, John Hand, appeared for sentence on charges arising from a sequence of violent and threatening conduct directed at his mother and her intimate partner over three days in early September 2018 in the Albury area. The offending took place against the backdrop of the offender's clear hostility toward his mother's partner.

On 1 September 2018, the offender confronted his mother's partner in a vehicle, crushing his hand and causing a fracture. Two days later, the offender forced his way through the locked front door of the partner's home, armed with a metal outdoor chair, and struck the partner in the knee and head, inflicting serious lacerations. The following morning, the offender sent threatening Facebook messages and made a phone call to his mother, demanding money and threatening to "run through" the house again with more people and "really hurt Graham this time."

The offender was ultimately arrested on 10 September 2018, after initially evading police, and had been in custody solely in relation to these offences from that date through to sentencing.

  • What sentence was appropriate for the principal offence of aggravated break and enter and commit a serious indictable offence, namely reckless wounding in circumstances of aggravation, contrary to s 112(2) of the Crimes Act 1900?
  • How should the additional offences (assault occasioning actual bodily harm under s 59(1), and demanding property with menaces under s 99(1)) be reflected in the overall sentencing exercise?
  • What discount was appropriate for the utilty of the guilty plea?
  • Whether an aggregate sentence was the appropriate sentencing mechanism, and whether special circumstances existed to vary the statutory ratio between the non-parole period and the balance of term.

Decision

King SC DCJ found the offending to be serious. The principal offence under s 112(2) carries a maximum penalty of 20 years' imprisonment and a standard non-parole period of five years. The Court used both markers as guideposts in assessing the indicative sentence for that offence.

The offender received a 25 percent discount on account of the utility of his early guilty plea. His subjective circumstances, including his drug use and issues with anger management, were taken into account, alongside the need for a meaningful period of supervision on parole to support any rehabilitation.

The Court imposed an aggregate sentence rather than individual consecutive sentences, noting that the offending occurred on different occasions and involved different conduct, warranting some accumulation. The indicative sentence for the s 112(2) offence, taking into account the assault occasioning actual bodily harm on the Form 1, was three and a half years with a non-parole period of two and a half years. The indicative sentence for the demand with menaces offence was one and a half years' imprisonment.

The Court found no special circumstances to justify departing from the standard statutory relationship between the non-parole period and the balance of term. The one-year parole period was considered sufficient to assist the offender should he genuinely seek to address drug use and anger management upon release.

Orders Made

  • The offender was convicted of the offence of aggravated break and enter and commit a serious indictable offence (reckless wounding in circumstances of aggravation) contrary to s 112(2) of the Crimes Act 1900.
  • The offender was convicted of the offence of demanding property with menaces contrary to s 99(1) of the Crimes Act 1900 (on the s 166 certificate).
  • An aggregate sentence of four years' imprisonment was imposed, with a non-parole period of three years commencing 10 September 2018.
  • First eligible for parole: 9 September 2021, with a balance of term of one year.

Key Takeaways

  • The District Court applied the standard non-parole period of five years under s 112(2) as a legislative guidepost, treating the maximum penalty as an indicator of the seriousness with which Parliament regards aggravated break and enter offences involving known occupants.
  • A 25 percent plea discount was applied on the basis of utility alone, consistent with the offender's early guilty plea following committal from the Local Court.
  • Where offending occurs on distinct occasions and involves different conduct, some accumulation in an aggregate sentence may be warranted, even where a single aggregate term is imposed.
  • No special circumstances were found to exist, and the Court declined to reduce the statutory ratio between the non-parole period and the balance of term.
  • The availability of a one-year parole period was treated as a meaningful, rather than nominal, opportunity for rehabilitation, particularly in relation to drug dependency and anger management.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm)
- Crimes Act 1900 (NSW), s 99(1) (demanding property with menaces with intent to steal)
- Crimes Act 1900 (NSW), s 112(2) (aggravated break and enter and commit serious indictable offence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 166 (certificate for additional offences)

Cases cited: None stated in the judgment.