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District Court 16 October 2020

R v Traslavina

[2020] NSWDC 621

Assault & violence
SENTENCE RECKLESS WOUNDING WITH A KNIFE DISPUTED FACTS HEARING CALLED THE AMBULANCE AND THEN ABSCONDED TURNED HIMSELF IN THE NEXT DAY LACK OF INSIGHT

Citation: R v Traslavina [2020] NSWDC 621
Court: District Court of New South Wales
Date: 16 October 2020
Judge: Judge Weinstein SC

Background

The offender, a roof tiler born in Chile in 1978, was sentenced following his plea of guilty to one count of reckless wounding under s 35(4) of the Crimes Act 1900. The offence arose from a dispute over lost wages with a man who had employed him casually as a roof tiler.

After a heated series of phone calls and text messages, the two men arranged to meet at a local shopping strip in Warwick Farm to resolve the disagreement and exchange outstanding wages. When they encountered each other that evening, the offender initiated a physical confrontation and stabbed the victim twice with a knife, once in the upper left arm and once beneath the left armpit, causing potentially life-threatening injuries including a punctured lung that required surgery.

Following the stabbing, the offender called emergency services but then absconded, telling the injured victim he should have "stabbed you harder to finish you off." He presented himself to police the following day. The victim suffered lasting physical and psychological harm, including post-traumatic stress disorder symptoms, ongoing mobility difficulties, and financial hardship.

  • What were the appropriate facts upon which to sentence the offender, having regard to disputed matters?
  • What sentence was warranted for reckless wounding, taking into account the offender's plea, criminal history, personal circumstances, and the seriousness of the offence?
  • Whether the sentence should be served in the community by way of an Intensive Corrections Order (ICO), rather than as full-time imprisonment, given that the sentence fell within the threshold for ICO eligibility.

Decision

Judge Weinstein conducted a disputed facts hearing and settled the factual basis for sentencing. The agreed facts established a premeditated confrontation in which the offender brought a knife to the meeting and used it on a victim who had come alone and unarmed.

On the question of sentence, His Honour took into account the offender's plea of guilty (attracting a 10% discount), his period of offence-free behaviour between 2013 and the incident, his limited criminal history, his personal background including childhood migration and family difficulties, and his history of alcohol abuse. Against these factors, the court weighed the seriousness of the offending, the victim's significant ongoing physical and psychological injuries, and the offender's marked lack of insight into his conduct. The offender maintained he had acted in self-defence and expressed little remorse.

On the question of an ICO, the court noted that such an order was prima facie available given the sentence was two years or less for a single offence. However, His Honour declined to impose one. Applying the principle from R v Fangaloka [2019] NSWCCA 173, the court found that an ICO would be an unacceptable form of imprisonment in these circumstances. The primary basis for that conclusion was the offender's lack of insight into the harm caused by his offending, which raised concerns about community safety, the paramount consideration under s 66(1) of the Crimes (Sentencing Procedure) Act 1999.

The court imposed a sentence of imprisonment of 21 months and fifteen days, arrived at by applying a 10% guilty plea discount to a head sentence of approximately 24 months, with a non-parole period of 11 months.

Orders Made

  • The offender was convicted of one count of reckless wounding contrary to s 35(4) of the Crimes Act 1900.
  • Sentenced to imprisonment for 21 months and fifteen days.
  • Non-parole period of 11 months imposed.
  • Sentence commenced 16 October 2020, expiring 30 July 2022.
  • Eligible for release on parole on 15 September 2021.

Key Takeaways

  • An ICO, though prima facie available where a sentence does not exceed two years for a single offence, may nonetheless be refused where an offender's lack of insight into their offending raises sufficient concern for community safety under s 66(1) of the Crimes (Sentencing Procedure) Act 1999.
  • Under R v Fangaloka [2019] NSWCCA 173, there remain cases where the leniency inherent in an ICO is inconsistent with an adequate penalty, and full-time custody is the appropriate sentencing outcome.
  • The District Court treated the offender's minimal remorse and persistent self-justification as significant factors weighing against a non-custodial form of imprisonment, even where other mitigating factors were present.
  • A guilty plea discount of 10% was applied, reflecting the stage at which the plea was entered and resulting in a reduction from approximately 24 months to 21 months and fifteen days.
  • Victim impact evidence describing lasting physical injury (punctured lung, impaired mobility) and psychological harm (PTSD symptoms, social withdrawal) formed part of the sentencing material, consistent with the court's obligation to consider the full impact of the offence on the victim.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(4) (reckless wounding)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing), s 66(1) (community safety and ICOs)

Cases
- R v Fangaloka [2019] NSWCCA 173
- R v Pullen [2018] NSWCCA 264
- Casella v R [2019] NSWCCA 201
- Karout v R [2019] NSWCCA 253
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120
- Stevens v R [2017] NSWCCA 216