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District Court 1 June 2020

R v Allen

[2020] NSWDC 494

Assault & violence

Citation: R v Allen [2020] NSWDC 494
Court: District Court of New South Wales
Date: 1 June 2020
Judge: ML Williams SC DCJ

Background

The offender, a man aged 31 at the time of sentencing, pleaded guilty to one count of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900. The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years.

The offence occurred near a Woolworths store in Balmain on 12 July 2018, at around 6:30pm. The offender approached a 16-year-old victim who was walking with his 14-year-old brother and a friend. Without any prior contact or relationship between the parties, the offender put one arm around the victim and drove an extended folding knife into him in an underarm motion. The blade passed through the victim's hand and punctured his abdomen, severing nerves, fracturing a finger joint, cutting an artery, and lacerating his liver. The victim required multiple surgeries and was left with permanent injuries including ongoing nerve damage, restricted movement, and scarring.

The offender had been in custody since his arrest on 15 July 2018. His criminal history included earlier offences of assault and unlawful detention, for which he had received prior custodial sentences. The Crown conceded a full-time custodial sentence was appropriate, and the court proceeded on that basis.

  • What weight should be given to the offender's claimed provocation as a mitigating factor on sentence?
  • How should the offender's mental health history, including a diagnosis of borderline personality disorder, affect the sentence?
  • Was a 10% discount for the guilty plea's utilitarian value appropriate, and could remorse operate as a separate, additional mitigating factor?
  • Did special circumstances exist warranting a departure from the standard non-parole period ratio?
  • What was the appropriate sentence, having regard to objective seriousness, aggravating factors, and subjective considerations?

Decision

Objective seriousness and aggravating factors. The court found the offence to be objectively serious. The attack was unprovoked, committed with a weapon, and carried out against a teenage victim in the presence of two younger companions. The stabbing caused grave physical harm, including severed nerves, arterial damage, and a liver laceration requiring emergency surgery. The victim's father read a victim impact statement describing permanent physical and emotional consequences, which the court took into account.

Provocation and mental health. The offender claimed he was provoked, asserting that his partner had contacted him in fear, prompting him to arm himself and race to her aid. The court was not satisfied this version established provocation of sufficient weight to operate meaningfully as a mitigating factor. The court did accept evidence of the offender's borderline personality disorder and significant mental health history, but noted these factors, while relevant to moral culpability, did not substantially reduce it in the circumstances. The strong need for general deterrence and denunciation remained important.

Guilty plea and remorse. The court applied a 10% discount for the utilitarian value of the guilty plea, as required by the legislative framework. The offender had initially lied to police and then departed from that account in evidence. Despite this, the court accepted that genuine remorse had been expressed and took it into account in fixing the final sentence, noting the question of whether remorse can operate as a separate allowance beyond the statutory discount (as suggested in R v Borkowski) remains an open one under the current legislative regime.

Special circumstances. The court found special circumstances existed, warranting a modest extension of the non-parole period ratio. The offender's relative youth and demonstrated need for extended supervision upon release justified a small reduction below the standard ratio.

Orders Made

  • The offender was convicted of causing grievous bodily harm with intent.
  • A sentence of imprisonment of 7 years and 3 months was imposed, commencing 15 July 2018.
  • A non-parole period of 4 years and 3 months was set, expiring 14 October 2022.
  • Special circumstances were found.
  • The back-up offence of recklessly cause grievous bodily harm (sequence 4) was withdrawn.
  • Any illicit drugs and prohibited weapons seized during the search of the offender's residence were ordered to be destroyed.

Key Takeaways

  • A conviction under s 33(1)(b) of the Crimes Act 1900 carries a maximum penalty of 25 years and a standard non-parole period of seven years, both of which the sentencing court used as yardsticks when calibrating the appropriate sentence.
  • Where provocation is raised as a mitigating factor on sentence, the court will scrutinise the evidentiary basis carefully, particularly where the offender's account shifted between the police interview and oral evidence at the sentencing hearing.
  • Mental health diagnoses, including borderline personality disorder, can affect assessments of moral culpability in sentencing, but they do not automatically reduce the weight given to deterrence and denunciation where the offending is serious.
  • Under the current legislative framework, the utilitarian value of a guilty plea is capped at 10%; whether remorse can still operate as a separate unquantified allowance beyond that statutory discount (as the Court of Criminal Appeal discussed in R v Borkowski) was left as an open question by this decision.
  • Special circumstances may be found to justify a modified non-parole period ratio where a relatively young offender with significant mental health needs will require extended supervision upon release, even where the Crown contends the standard ratio provides sufficient supervisory time.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D
- Mental Health Act 2007 (NSW)

Cases
- Aslan v R [2014] NSWCCA 114
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Khanwaiz v R [2012] NSWCCA 168
- R v Borkowski [2009] NSWCCA 102
- R v Thomas [2007] NSWCCA 269
- Tuncbilek v R [2020] NSWCCA 30