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District Court 25 June 2020

R v Craft

[2020] NSWDC 534

Assault & violence
CRIME VIOLENT OFFENCES ASSAULT OCCASIONING ACTUAL BODILY HARM RECKLESS WOUNDING BREACH OF CCO SUBJECTIVE MATTERS

Citation: R v Craft [2020] NSWDC 534
Court: District Court of New South Wales
Date: 25 June 2020
Judge: King SC DCJ

Background

The offender appeared for sentencing on two counts of assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900 and one count of reckless wounding under s 35(4) of the same Act. All relevant offences occurred on 6 September 2019 in the Newtown area of Sydney. The offender had been in custody since his arrest on 1 October 2019.

The agreed facts described a prolonged, alcohol-fuelled confrontation between the offender and a female victim near the Hub community space on Enmore Road. During the encounter, the offender head-butted and punched the victim, causing a graze to her forehead. After a brief lull, he then stabbed her in the left armpit with a ten-centimetre kitchen knife. The knife remained lodged in the victim until she reached the nearby police station. The wound, which penetrated two to four centimetres and required sutures, did not cause pleural (lung lining) injury.

The offender also faced action for breaching an eighteen-month Community Correction Order (CCO) imposed in January 2019 for an earlier assault occasioning actual bodily harm. He had completed 200 hours of community service under that order before reoffending.

  • How to assess the objective seriousness of each offence, including the assault occasioning actual bodily harm and the reckless wounding
  • What weight to give the offender's significant background of disadvantage, cognitive impairment from a diagnosed brain trauma, and other subjective factors
  • How to apply the 25% discount for an early guilty plea
  • Whether special circumstances existed to justify departing from the statutory ratio between the non-parole period and the balance of term
  • How to structure an aggregate sentence covering multiple offences, including the breach of the CCO

Decision

His Honour assessed the reckless wounding as the most serious matter. The stabbing occurred after prolonged aggression, involved a concealed weapon, and was accompanied by explicit threats including statements that the offender would "shank" and kill the victim. The wound, while serious, did not penetrate the pleural cavity, and the court treated this as a relevant moderating factor on objective seriousness.

For the assault occasioning actual bodily harm committed on the same day, the court noted the head-butt and punch caused relatively minor physical injury. The earlier CCO breach was treated more leniently given the offender had completed all 200 hours of community service under that order before the fresh offending.

In assessing subjective matters, the court applied the principles from Bugmy v The Queen [2013] HCA 37, treating the offender's background of profound social disadvantage as a mitigating consideration of ongoing relevance. The recently diagnosed brain trauma, which affected his cognitive functioning and led police to treat him as a vulnerable person, also featured in the court's assessment. The offender received a 25% discount for the utilty of his early guilty plea.

The court found special circumstances under the Crimes (Sentencing Procedure) Act 1999, concluding that the offender required a longer period on parole to address his difficulties and transition to a non-offending lifestyle. The court noted the likelihood that the offender would be deported upon completing the non-parole period but stated it was required to disregard that consideration when structuring the sentence.

Orders Made

  • Indicative sentence for the CCO breach (earlier assault occasioning ABH): fixed term of 9 months
  • Indicative sentence for the assault occasioning ABH on 6 September 2019: 9 months
  • Indicative sentence for reckless wounding: 3 years, with an indicative non-parole period of 1 year and 9 months
  • Aggregate sentence: total term of 3 years and 3 months, commencing 1 October 2019, expiring 31 December 2022
  • Non-parole period: 2 years, expiring 7 October 2021
  • Balance of term: 1 year and 3 months
  • Special circumstances found, varying the statutory non-parole period to balance of term ratio

Key Takeaways

  • The District Court applied Bugmy v The Queen to confirm that an offender's background of profound disadvantage remains a mitigating factor at sentencing, even where the offending is serious and the offender has prior convictions.
  • An aggregate sentence under the Crimes (Sentencing Procedure) Act 1999 requires the court to state an indicative sentence for each individual offence before arriving at the combined term.
  • Special circumstances can justify a longer balance of term where an offender needs extended supervision and support on parole to address underlying cognitive, social, or rehabilitation needs.
  • Where a CCO has been partially performed, the extent of compliance is a relevant consideration when the court revisits that matter following a breach and fresh offending.
  • The court noted that likely deportation at the end of the non-parole period was a factor it was required to set aside when determining the structure of the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(4), 59(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Bugmy v The Queen [2013] HCA 37
- DPP v Delarosa (2010) 79 NSWLR 1
- Veen v The Queen (No. 2) [1988] HCA 14