Citation: R v Merza [2020] NSWDC 189
Court: District Court of New South Wales
Date: 15 May 2020
Judge: Colefax SC DCJ
Background
The offender was tried by jury on three counts arising from two separate incidents in 2016. The first two counts (the second being an alternative to the first) concerned a serious stabbing that occurred on 7 August 2016 at Fairfield. The third count concerned conduct while on remand, namely orchestrating an approach to the victim to persuade him to withdraw his complaint in exchange for $20,000.
The victim was a 14-year-old boy who had been involved in a street fight two days earlier in which the offender's close friend had received a black eye. On the night of the stabbing, the offender and two companions pursued the victim across the Fairfield area, ultimately cornering him in a stairwell of a unit complex where the victim was seeking refuge. The victim was stabbed nine times and required urgent medical intervention; without it, the court found, he would in all probability have died.
The jury acquitted the offender of wounding with intent to murder but convicted him of wounding with intent to cause grievous bodily harm and of acting with intent to cause a prospective witness to give false evidence. Verdicts were returned on 17 October 2019, and the sentence hearing was ultimately conducted on 3 April 2020.
Legal Issues
- What findings of fact, consistent with the jury's verdicts and proven beyond reasonable doubt, could the court make for sentencing purposes?
- How should the two offences be assessed for objective seriousness?
- What weight should be given to the offender's subjective circumstances, including age, background, substance abuse history, and rehabilitation prospects?
- What sentence was appropriate having regard to parity with the co-offender (Mr Hana, sentenced separately in 2018) and the principle of totality?
Decision
Colefax SC DCJ made factual findings consistent with the jury's verdicts. The court found that the offender participated in a joint criminal enterprise with at least two others to wound the victim with intent to cause grievous bodily harm. Although the evidence did not establish that the offender personally wielded a knife, his presence and participation in the enterprise was sufficient. The court was not satisfied beyond reasonable doubt that the offender knew the victim was approximately 14 years old, though it found the offender would have recognised the victim was not a mature adult.
On objective seriousness, the wounding offence was assessed as above the middle of the range for offences of its kind, aggravated by two factors: the offender acted in company, and the offence carried a grave risk of death. The witness-interference offence was assessed as mid-range. The court noted the offender had directed associates to approach the victim while in custody on remand, including a direct offer of $20,000 to drop the charge.
On subjective circumstances, the court found the offender's prospects of rehabilitation to be poor. Three psychological reports were before the court, all prepared for earlier proceedings, and each raised difficulties for the offender. The court accepted the Crown's submissions on those difficulties in full, incorporating them by reference. Factors including a lengthy criminal history, significant substance abuse commencing at age 15, and a failure to seek effective treatment all weighed against the offender. The court noted that specific and general deterrence, and community protection, were all engaged.
On parity, the court compared the sentence with that imposed on the co-offender Mr Hana by Judge Pickering SC in October 2018, estimating Hana's effective pre-discount sentence at approximately 8 years and 4 months. The court accepted that parity remained a relevant consideration but found it was of reduced significance given identified differences in the offenders' circumstances. An aggregate sentence was imposed, backdated to 26 September 2019 to account for time served in custody on unrelated matters.
Orders Made
- Aggregate sentence of 12 years imprisonment, commencing 26 September 2019
- Non-parole period of 9 years, expiring 25 September 2028
- Balance of term of 3 years, expiring 25 September 2031
- Indicative sentence for wounding with intent to cause grievous bodily harm: 10 years, with an indicative non-parole period of 7 years 6 months
- Indicative sentence for acting with intent to influence a witness: 3 years 6 months
Key Takeaways
- A conviction for wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW) does not require proof that the offender personally inflicted the wounds; participation in a joint criminal enterprise with that shared intent is sufficient.
- Aggravating factors, particularly acting in company and creating a grave risk of death, can elevate an already serious wounding offence above the mid-range even where the maximum penalty is 25 years and a 7-year standard non-parole period applies.
- The District Court treated the witness-interference offence under s 323(a), which carries no standard non-parole period, as a mid-range offence where the offender directed approaches to the victim from remand custody, including a cash inducement.
- Parity with a co-offender's sentence remains a relevant sentencing consideration, but its weight can be reduced where the co-offender's circumstances differ materially from those of the offender being sentenced.
- Poor rehabilitation prospects, a significant criminal history, and long-term untreated substance abuse collectively reduced the mitigating weight available to an offender and heightened the court's emphasis on deterrence and community protection.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 33(1)(a) (wounding with intent to cause grievous bodily harm; maximum 25 years, standard non-parole period 7 years)
- Crimes Act 1900 (NSW), s 323(a) (doing an act intending to cause a witness in judicial proceedings to give false evidence; maximum 7 years)
Cases: No cases were cited in the judgment text.