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District Court 6 September 2019

R v Sinnett

[2019] NSWDC 936

Assault & violenceDomestic & family violence
CRIME SENTENCE RECKLESS WOUNDING ASSAULT OCCASIONING ACTUAL BODILY HARM DOMESTIC VIOLENCE VICTIM BLAMING

Citation: R v Sinnett [2019] NSWDC 936
Court: District Court of New South Wales
Date: 6 September 2019
Judge(s): Norrish QC DCJ

Background

The offender, a man in his thirties, appeared for sentence on four charges dealt with on indictment: one count of reckless wounding under s 35(4) of the Crimes Act 1900, three counts of assault occasioning actual bodily harm under s 59, and one related driving whilst disqualified matter dealt with by way of a s 166 certificate.

All offences occurred on 22 November 2017. The victim was the offender's wife of approximately ten years. The couple were travelling by car from Wagga Wagga back to their home in Junee, with their young son in the back seat. During an argument, the offender produced a knife and stabbed the victim in the back while she was driving. When they arrived home and she began packing to leave, the offender struck her over the head with a glass ashtray and hit her twice with a hammer. The offender then drove the vehicle back toward Junee, despite being disqualified from holding a licence.

The victim sustained a deep laceration to her left chest wall, bruising and swelling to her left thigh, and swelling to the back of her head. The offender was arrested on 6 December 2017 and had remained in custody from that date. Notably, at the time he committed these offences, he already had other charges pending in the Local Court relating to possessing a prohibited weapon and dealing with proceeds of crime.

  • What discount, if any, should be applied for the guilty pleas, given the timing and circumstances in which they were entered?
  • How should the sentences for the multiple offences be structured, particularly given the principle of totality and the need to avoid crushing the offender?
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act to justify departing from the standard ratio between non-parole period and total sentence?
  • How to treat, for sentencing purposes, the fact that other charges were pending when the offences were committed?
  • What weight to give to the offender's subjective circumstances, including his dysfunctional upbringing, drug use, vision impairment, and domestic violence history?

Decision

Guilty plea discount: The offender's counsel sought a 25% discount for the guilty pleas. His Honour declined, finding a discount of 15% was appropriate across the relevant counts. The principal count of reckless wounding had originally been framed as wounding with intent to cause grievous bodily harm. The offender had the opportunity at earlier stages to offer a plea to the lesser charge, and the litigation history did not justify the higher discount claimed.

Pending charges: The court took into account that the offender already faced charges in the Local Court when he committed the November 2017 offences. This was treated as an aggravating factor, consistent with established sentencing principle, reflecting the offender's willingness to commit further offences while on notice of pending proceedings.

Subjective case and victim-blaming: The court acknowledged the offender's troubled background, including a dysfunctional upbringing and significant drug use. However, the catchwords reference victim-blaming as a feature of the matter, and the court's remarks reflect that any attempt to attribute responsibility to the victim was firmly rejected. The offending occurred in the presence of the couple's young autistic son, and the pattern of domestic violence was treated as a serious aggravating consideration.

Special circumstances: His Honour found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act. The accumulation of sentences itself gave rise to special circumstances, and the court accepted the offender would need an extended period of supervision on release to assist with reintegration, address his attitude to violence, and manage his drug use.

Orders Made

  • Count 2 (assault occasioning actual bodily harm): 20 months imprisonment, commencing 6 December 2017, expiring 5 August 2019. No non-parole period fixed.
  • Count 3 (assault occasioning actual bodily harm): 20 months imprisonment, commencing 6 June 2018, expiring 5 February 2020. No non-parole period fixed.
  • Count 5 (assault occasioning actual bodily harm): 17 months imprisonment, commencing 6 June 2018, expiring 5 November 2019. No non-parole period fixed.
  • Reckless wounding: Non-parole period of 2 years 3 months commencing 6 December 2018, expiring 5 March 2021; balance of sentence of 2 years, expiring 5 March 2023.
  • Driving whilst disqualified: 6 months imprisonment commencing 6 September 2019, expiring 5 March 2020; disqualified from holding a driver's licence for 2 years cumulative on any existing disqualification.
  • Total sentence: 5 years 3 months imprisonment with a non-parole period of 3 years 3 months, dating from 6 December 2017.
  • Special circumstances finding made under s 44 of the Crimes (Sentencing Procedure) Act.

Key Takeaways

  • The District Court applied a 15% guilty plea discount rather than the 25% sought by the defence, holding that the litigation history and the offender's earlier opportunities to enter pleas did not support the higher reduction.
  • Pending charges at the time an offence is committed remain an aggravating factor at sentence; the existence of Local Court charges did not mitigate the offending but instead reflected adversely on the offender's character.
  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act can be justified by the accumulation of sentences alone, without requiring an additional independent basis, where an extended supervisory period is needed to address specific rehabilitation concerns.
  • Domestic violence offending committed in the presence of a vulnerable child, as part of a pattern of violence toward an intimate partner, will attract significant weight as an aggravating feature in sentencing.
  • Where an offender is tried on a more serious charge and convicted on a lesser included offence following a contested hearing, the maximum penalty applicable to the lesser offence governs the sentencing exercise in this Court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(4), 59
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 166

Cases:
- Kentwell [2015] NSWCCA 96
- Lewis [2014] NSWSC 1127
- Mill v R (1988) 166 CLR 59
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Pearce v R (1998) 194 CLR 610
- R v Bugmy [2013] NSWSC 1885
- R v Holder (1983) 3 NSWLR 245
- R v Johnson [2004] HCA 15; 78 ALJR 616
- R v XX (2009) 195 A Crim R 38