Citation: R v Geebung [2020] NSWDC 546
Court: District Court of New South Wales
Date: 19 June 2020
Judge(s): Bourke SC DCJ
Background
On Christmas night 2017, a gathering at a home in Whalan turned violent in the early hours of the morning. The offender, a distant relative of several attendees, had consumed a significant amount of alcohol. When members of the Nicholls family were leaving the party, a confrontation broke out on the street between the offender and Elizabeth Nicholls.
According to evidence accepted by the sentencing judge, the offender obtained a broken glass bottle and chased Elizabeth Nicholls around a car. Helen Nicholls, Elizabeth's mother, stepped in to intervene. The offender then struck Helen with the bottle, causing four separate lacerations to her face and neck, including an 8 to 10 centimetre wound to the neck that penetrated 1.5 centimetres and required surgical repair.
At trial, the jury acquitted the offender of wounding with intent to cause grievous bodily harm and of assaulting Elizabeth Nicholls occasioning actual bodily harm. However, the jury returned a guilty verdict on the statutory alternative to the first count: reckless wounding. That offence carries a maximum penalty of seven years' imprisonment, with a standard non-parole period of three years.
Legal Issues
- Whether the sentencing judge could find, beyond reasonable doubt, that the offender struck the victim with the broken bottle, given the jury's acquittal on the intentional wounding count.
- Whether the nature and extent of Helen's injuries could be treated as an aggravating feature without effectively sentencing the offender for the more serious (uncharged or acquitted) offence of recklessly causing grievous bodily harm.
- What weight should be given to the offender's personal circumstances, including her Indigenous background, youth, mental health, and lack of prior custodial experience.
- Whether an Intensive Correction Order was an appropriate penalty, or whether full-time imprisonment was required.
Decision
Factual findings at sentence. The offender argued that the jury's acquittal on intentional wounding made it logically untenable to find she had deliberately struck Helen with the bottle. Bourke SC DCJ rejected that argument. The medical evidence of four separate lacerations to Helen's face and neck made it highly improbable that the injuries were caused by falling onto broken glass. The jury's verdict was entirely consistent with its having distinguished between intentional and reckless conduct, not with a finding that the offender did not use the bottle at all.
Restraint in characterising the injuries. Following the principle in R v De Simoni and McCullough v The Queen, the judge was careful not to sentence the offender on the basis that Helen's injuries amounted to grievous bodily harm, which would have been to punish her for an offence more serious than that for which she was convicted. The focus remained on the wounding itself, assessed as objectively very serious given the nature of the weapon, the number of wounds, and the proximity of the neck laceration to the carotid artery.
Personal circumstances. The judge accepted, applying the principles from Bugmy v The Queen, that the offender's background of deprivation and disadvantage was relevant to moral culpability. Her youth (she was 21 at the time of the offence), absence of prior custodial experience, and an adjustment disorder diagnosed by a psychologist were also considered. Although the mental health condition did not contribute to the offence, it was accepted that it would make any custodial term more onerous. The judge also noted that imprisonment during the COVID-19 pandemic involved additional hardship due to restrictions on family visits.
Penalty. The judge concluded that an Intensive Correction Order would not adequately reflect the seriousness of the offending or the purposes of sentencing, particularly general and specific deterrence given the ready availability of glass bottles as weapons. Full-time imprisonment was imposed. Special circumstances were found to justify a variation from the standard ratio between head sentence and non-parole period, based on the offender's youth, lack of prior custodial experience, and the need for extended community supervision on release.
Orders Made
- Head sentence of two years and three months' imprisonment, commencing 19 June 2020 and expiring 18 September 2022.
- Non-parole period of 14 months, expiring 18 August 2021.
Key Takeaways
- A jury's acquittal on a more serious intent-based charge does not preclude a sentencing court from finding, beyond reasonable doubt, the underlying physical acts that constitute the lesser offence on which the offender was convicted.
- Under R v De Simoni, a sentencing court must not take into account, as an aggravating factor, circumstances that would constitute a more serious offence than the one for which the offender stands to be sentenced. Here, the severity of the victim's injuries was acknowledged only in the context of the wounding, not as evidence of grievous bodily harm.
- The principles confirmed in Bugmy v The Queen regarding the relevance of an offender's background of deprivation and disadvantage to moral culpability were applied in this sentencing exercise.
- Deterrence carries particular weight in offences involving the use of improvised weapons such as broken glass bottles, given their ready availability: Tweeddale v The Queen.
- Special circumstances justifying a departure from the standard head sentence to non-parole period ratio may be established by a combination of youth, absence of prior custodial experience, and the need for supervision upon release.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases
- Bugmy v The Queen [2013] 249 CLR 571
- DPP v De La Rosa [2010] NSWCCA 194
- McCullough v The Queen [2009] NSWCCA 94
- R v De Simoni (1981) 147 CLR 383
- Tweeddale v The Queen [2012] NSWCCA 99