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District Court 17 April 2020

R v Kelso

[2020] NSWDC 157

Assault & violence
CRIME SENTENCE STANDARD NON PAROLE PERIOD EXTENUATING CIRCUMSTANCES UNPLANNED UNPREMEDITATED OFFENDING

Citation: R v Kelso [2020] NSWDC 157
Court: District Court of New South Wales
Date: 17 April 2020
Judge: Norrish QC DCJ

Background

The offender, a long-term resident of Scotland Island in Pittwater, pleaded guilty to causing grievous bodily harm with intent to cause grievous bodily harm against a fellow island resident. The offence was committed on 4 December 2017. The offender ran a water taxi business that served the island community and had lived there with his family since 2004.

The victim had been engaged in extensive and largely meritless civil litigation against the offender and others on the island since around 2012. That litigation caused the offender significant financial loss, anxiety, and increased alcohol consumption. The victim was subsequently declared a vexatious litigant by the Supreme Court of New South Wales in 2019, with Fagan J finding his conduct had been a serious burden on multiple defendants and the courts.

The plea of guilty was entered on 30 April 2019, the day after the trial was listed to commence. Sentencing was delayed by counsel's illness and the judge's hospitalisation, with the final sentence delivered on 17 April 2020, by which point court proceedings were being conducted remotely due to the COVID-19 pandemic.

  • What discount should apply for the utilitarian value of the guilty plea, given its timing?
  • Whether the circumstances of the offending (unplanned, unpremeditated) and the background context of prolonged vexatious litigation against the offender constituted extenuating circumstances relevant to the standard non-parole period of seven years.
  • Whether the conditions of custody during the COVID-19 pandemic were a relevant factor in sentencing.
  • Whether an Intensive Correction Order was appropriate rather than full-time imprisonment.

Decision

The court applied a 10% discount for the guilty plea, consistent with the guideline judgment in R v Thomson and Houlton [2000] NSWCCA 309, reflecting the late timing of the plea on the day after the trial was to commence.

In assessing the objective seriousness of the offence, the court treated the offending as unplanned and unpremeditated. The years of vexatious litigation conducted by the victim against the offender formed part of the background context. The court drew on Fagan J's findings in Palmer v Mohareb [2019] NSWSC 975, which described the victim's conduct as a "gross invasion of private life" causing serious harm to defendants in his local community. The court accepted that this prolonged campaign had materially increased the offender's anxiety and stress leading up to the offence.

The court also took into account the conditions of custody as affected by the COVID-19 pandemic. Supplementary submissions filed by the defence addressed the impact of the public health emergency on the circumstances of imprisonment, and the court accepted those submissions as relevant to the sentencing exercise.

Having regard to all these factors, including the offender's personal circumstances and the nature of the offending, the court determined that an Intensive Correction Order was the appropriate sentencing disposition rather than a term of full-time custody.

Orders Made

  • The offender was sentenced to a term of imprisonment to be served by way of an Intensive Correction Order, commencing 17 April 2020, with a non-parole period of one year and ten months (rounded up to reflect the guilty plea discount).
  • The offender was required to report to the Community Corrections office at St Leonards within seven days of the order.
  • Standard conditions applied, including no further offending and supervision by a Community Corrections officer.
  • An additional condition required the performance of 400 hours of community service work.

Key Takeaways

  • A guilty plea entered the day after a trial was listed to commence attracted only a 10% discount for utilitarian value, consistent with the Thomson and Houlton guideline.
  • Prolonged and meritless civil litigation conducted by a victim against an offender, as found by another court, can form part of the contextual background relevant to assessing the circumstances of an offence at sentencing.
  • The conditions of custody arising from the COVID-19 pandemic were treated as a relevant sentencing consideration, with the District Court accepting defence submissions on the topic.
  • Unplanned and unpremeditated offending was identified as a feature bearing on the assessment of objective seriousness relative to the standard non-parole period of seven years for this offence category.
  • An Intensive Correction Order remained available as a sentencing option even for a serious offence of this kind, where the totality of circumstances so warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Vexatious Proceedings Act 2008 (NSW)

Cases:
- R v Thomson and Houlton [2000] NSWCCA 309
- Muldrock v R [2011] HCA 39
- Palmer v Mohareb [2019] NSWSC 975
- DPP(Cth) v De La Rosa [2010] NSWCCA 194
- Parente v R [2017] NSWCCA 284
- R v Lulham (2016) 230 ACrimR 287
- R v Tuala [2015] NSWCCA 8
- R v Way [2004] NSWCCA 131