Citation: R v Partington [2020] NSWDC 175
Court: District Court of New South Wales
Date: 6 February 2020
Judge: Bennett SC DCJ
Background
The offender pleaded guilty in the Local Court to assault occasioning actual bodily harm, for which Acting Magistrate Milanovich imposed a two-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 in September 2017. While subject to that bond, the offender committed a further offence: reckless wounding, contrary to s 35(4)(b) of the Crimes Act 1900. That offence involved the offender taking a knife to a victim's apartment and immediately attacking the victim.
The matter came before the District Court at Parramatta for sentencing on the reckless wounding charge. The offender also consented to the District Court dealing with the breach of the existing bond, which had by operation of amending legislation been converted into a community correction order.
The offender did not give evidence at the sentencing proceedings. The court had before it agreed facts, a sentence assessment report, psychiatric evidence, and written and oral submissions from the parties.
Legal Issues
- What aggregate sentence was appropriate for the reckless wounding offence and, upon revocation of the community correction order, the assault occasioning actual bodily harm offence?
- How should the standard non-parole period of three years for reckless wounding be applied following Muldrock v R [2011] HCA 39?
- What discount applied for the guilty plea, and what subjective factors (including intoxication, criminal history, remorse, and rehabilitation) were relevant to sentence?
- How did the legislative amendments converting s 9 good behaviour bonds into community correction orders affect the procedure for dealing with the breach?
- Whether special circumstances existed justifying a variation to the standard parole ratio.
Decision
Bennett SC DCJ revoked the community correction order arising from the assault occasioning actual bodily harm conviction, as the offender had committed the reckless wounding while subject to that order. Her Honour then proceeded to sentence the offender on both matters by way of an aggregate sentence.
On the reckless wounding, the court assessed the objective seriousness of the offending as significant. The offender had deliberately taken a knife to the victim's apartment and immediately launched an attack. The court declined to accept, in the absence of supporting evidence, the offender's claims that he feared his neighbours and was acting out of some form of self-protective concern. Even accepting any residual doubt in the offender's favour on that point, the court found that resort to such conduct could not be countenanced.
A 25% discount was applied to the sentence for the reckless wounding in recognition of the early guilty plea. The court accepted that the offender had expressed remorse and a genuine desire to rehabilitate, and took into account the psychiatric evidence and his personal history. The standard non-parole period of three years was treated as the benchmark for an offence of mid-range objective seriousness, in accordance with the Muldrock approach.
For the assault occasioning actual bodily harm, the court set a term of nine months imprisonment upon revocation of the community correction order. The aggregate sentence combined both matters, with the non-parole period commencing from the date the offender was taken into custody.
Orders Made
- The community correction order arising from the assault occasioning actual bodily harm conviction was revoked.
- The offender was convicted of reckless wounding.
- An aggregate sentence was imposed consisting of a non-parole period of 2 years and 6 months, commencing 28 May 2019, with a head sentence of 3 years and 9 months.
- The offender became eligible for parole on 27 November 2021.
Key Takeaways
- Following Muldrock v R [2011] HCA 39, the standard non-parole period operates as a legislative guidepost representing the non-parole period for mid-range objective seriousness, assessed by reference to objective factors only. The sentencing court must record reasons where it departs from that benchmark.
- Legislative amendments under the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 converted existing s 9 good behaviour bonds into community correction orders. Breach proceedings for such converted orders are governed by ss 107C and 107D of the Crimes (Administration of Sentences) Act 1999, and a superior court may deal with a breach with the offender's consent.
- Upon revocation of a community correction order under s 107D, the court may re-sentence the offender for the original offence, and that sentence may be incorporated into an aggregate term covering multiple matters.
- A 25% discount for an early guilty plea was applied to the reckless wounding charge, consistent with the sentencing discount regime under the Crimes (Sentencing Procedure) Act 1999.
- Unsubstantiated claims of self-protective motivation, unsupported by evidence beyond what the offender told a psychiatrist, carried limited weight, particularly where the offender had armed himself before attending the scene and immediately commenced the attack.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 35(4)(b), 59
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 8, 9, 12, 21A, 98; Part 4, Div 1A; Schedule 2, cl 74
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 107C, 107D
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
Cases
- Muldrock v R [2011] HCA 39
- Tepania v R [2018] NSWCCA 247
- Bugmy v R [2013] HCA 37
- Munda v The State of Western Australia [2013] HCA 38
- Markarian v R [2005] HCA 25
- Veen v R (No 2) [1988] HCA 14
- R v De Simoni (1981) 147 CLR 383
- R v McNaughton [2006] NSWCCA 242
- Callaghan v R [2006] NSWCCA 58
- Qutami [2001] NSWCCA 35
- State of New South Wales v Partington (Preliminary) [2019] NSWSC 732
- R v Partington [2006] NSWSC 442