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District Court 1 July 2020

R v Attard

[2020] NSWDC 443

Assault & violenceTheft & propertyTraffic & driving
CRIME (4) DRIVING WHILST UNLICENSED (5) DRIVING RECKLESSLY. A CALL A “BUGMY” SUBMISSION ACCEPTED

Citation: R v Attard [2020] NSWDC 443
Court: District Court of New South Wales
Date: 1 July 2020
Judge: Neilson DCJ

Background

The offender, a 25-year-old man with a lengthy criminal history and a serious drug addiction, was found by police in Kogarah on 9 July 2019 in a state of acute drug intoxication. He was transported by ambulance to St George Hospital, where tests confirmed the presence of amphetamines, opiates, cannabinoids and benzodiazepines in his system. He had been recently released on parole.

Shortly before discharge that evening, the offender damaged a glass door in the hospital's resuscitation area and then escaped from the custody of a security guard while wearing only a hospital gown. He ran through neighbouring streets until he encountered the victim, who had just parked her car outside her unit complex.

The offender forced his way into the victim's vehicle and demanded she drive him to Maroubra. During the journey, he punched her three times to the left side of her face and later inflicted five wounds to her face and neck using a small multi-tool he found in the centre console. The victim managed to escape from the stationary car and called for help. The offender then drove the vehicle erratically before colliding with other cars and crashing into a brick wall.

  • What sentence was appropriate for the aggravated form of taking a motor vehicle with an occupant inside, contrary to section 154C(2) of the Crimes Act 1900, where actual bodily harm was inflicted?
  • What sentence was appropriate for reckless wounding, contrary to section 35(4) of the Crimes Act 1900?
  • What weight should be given to the offender's background of disadvantage and social deprivation under the principles in Bugmy v The Queen?
  • What were the appropriate disposals for three additional offences (property damage, unlicensed driving and reckless driving) and for breach of existing Community Corrections Orders?
  • Whether the offender should be referred to the Drug Court for assessment as a potential subject of a compulsory drug treatment order.

Decision

The court accepted that the offender's drug addiction was central to the events of 9 July 2019. The offender's background of disadvantage and social deprivation was significant: a "Bugmy submission" was accepted, reflecting the principle from Bugmy v The Queen that a deprived background may moderate the weight given to general deterrence in sentencing, without eliminating it. The court found his prospects for rehabilitation were guarded, being dependent on either compulsory drug treatment in custody or a residential rehabilitation program as a condition of parole.

For the two substantive offences, the court imposed an aggregate sentence of six years' imprisonment, comprising a non-parole period of four years commencing 15 August 2019 and a further term of two years. The seriousness of the offending, particularly the sustained violence against a stranger who had been coerced into driving the offender, was reflected in the length of the head sentence and non-parole period.

For the three offences dealt with on a section 166 certificate (property damage at the hospital, driving whilst unlicensed, and reckless driving), the court imposed conviction under section 10A of the Crimes (Sentencing Procedure) Act 1999 without any additional penalty, together with a one-year disqualification from driving. For the breach of Community Corrections Orders arising from resisting police, the court imposed one month's imprisonment to be served before the commencement of the aggregate sentence.

The court also referred the offender to the Drug Court under section 18B of the Drug Court Act 1998, finding that grounds existed for the Drug Court to consider him an eligible convicted offender for the purposes of a compulsory drug treatment order.

Orders Made

  • Conviction recorded for the aggravated taking of a motor vehicle contrary to section 154C(2) of the Crimes Act 1900.
  • Conviction recorded for reckless wounding contrary to section 35(4) of the Crimes Act 1900.
  • Aggregate sentence imposed: non-parole period of four years commencing 15 August 2019 and expiring 14 August 2023, plus a further term of two years expiring 14 August 2025.
  • Convictions recorded under section 10A of the Crimes (Sentencing Procedure) Act 1999 for property damage, unlicensed driving and reckless driving, with no additional penalty.
  • One-year disqualification from driving.
  • One month's imprisonment for breach of Community Corrections Orders, to be served before commencement of the aggregate sentence.
  • Referral to the Drug Court under section 18B of the Drug Court Act 1998 to assess eligibility for a compulsory drug treatment order.

Key Takeaways

  • The District Court accepted a "Bugmy submission," applying the principle from Bugmy v The Queen (2013) 249 CLR 571 that an offender's background of profound disadvantage and deprivation is a relevant mitigating factor capable of moderating the weight given to general deterrence, even for serious offences of violence.
  • A "Bugmy submission" does not operate as a complete answer to criminality; the court balanced that submission against the serious, sustained and terrifying nature of the offending against a vulnerable stranger.
  • Under section 18B of the Drug Court Act 1998, a sentencing court may refer an offender to the Drug Court to assess eligibility for a compulsory drug treatment order, even where the head sentence is substantial, provided relevant grounds exist.
  • Offences placed on a section 166 certificate and dealt with at the same time as the principal charges may attract a conviction under section 10A without further penalty, where the overall sentencing outcome is proportionate.
  • Rehabilitation prospects assessed as "guarded" do not preclude a referral to the Drug Court; the court treated compulsory drug treatment or a structured residential rehabilitation program as the mechanism most likely to address the underlying cause of the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), sections 35(4), 154C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 10A, 166
- Drug Court Act 1998 (NSW), sections 5A, 18B

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- R v Barker; R v Gibson [2006] NSWCCA 20
- R v Wood [2015] NSWCCA 231
- Spark v R [2012] NSWCCA 140