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District Court 22 July 2020

R v Waters (a psuedonym); R v Mook

[2020] NSWDC 636

Assault & violence
CRIME GRIEVOUS BODILY HARM WITH INTENT RELEVANT FACTORS PLEA OF GUILTY JOINT CRIMINAL ENTERPRISE USE OF MACHETE TO MAIM

Citation: R v Waters (a pseudonym); R v Mook [2020] NSWDC 636
Court: District Court of New South Wales
Date: 22 July 2020
Judge: Haesler SC DCJ

Background

In the early hours of 12 March 2019, the victim was lured back to a Warrawong unit block by a phone call promising drugs. He had earlier left after an argument about not sharing methamphetamine ("ice"). Two offenders were waiting for him outside: Waters (a pseudonym, who was a child at the time of the offence) and Mook (an adult).

Waters swung a machete at the victim, nearly severing his left arm above the wrist and inflicting a deep wound to his left leg. While the victim lay on the ground, Mook held a lit blowtorch close to him and burned him behind the ear and neck. The victim suffered permanent and severe disability: his left hand now has almost no function, his fingers are fused shut, and he has significant scarring.

Both offenders pleaded guilty. Waters was charged with causing grievous bodily harm with intent (s 33(1)(b) Crimes Act 1900) and assault occasioning actual bodily harm in company (s 59(2) Crimes Act 1900). Mook faced the same charges, with the assault charge reflecting his use of the blowtorch.

  • How should the objective seriousness of the offences be assessed for each co-offender, given their different roles and weapons?
  • How should the parity principle apply where one offender was a child and the other an adult, but the child was the more culpable of the two?
  • What weight should be given to the offenders' backgrounds of disadvantage, mental health issues, drug abuse, and youth?
  • Was remorse established, and how did its presence or absence affect sentence?
  • Whether special circumstances existed for either offender to justify a longer than usual balance of term (the portion of a sentence served in the community on parole).

Decision

Objective seriousness. Haesler SC DCJ found both offences were serious. The use of a machete to nearly sever a limb, combined with planning (using a phone call to lure the victim into an ambush), placed the principal offence at the higher end. The motive was assessed as trivial or unfathomable: the attack appears to have been provoked by nothing more than the non-sharing of a small quantity of drugs. The blowtorch assault, while causing a smaller physical injury, was treated as particularly vicious given it was inflicted while the victim was already suffering acutely on the ground.

Parity and relative culpability. The court acknowledged the unusual parity problem: Waters was a child at the time of the offence and therefore attracted the protections of the Children (Criminal Proceedings) Act 1987, but he was also the more culpable offender. He made the call to lure the victim, carried and wielded the machete, and was the primary aggressor. Mook, as the adult, received a lesser sentence reflecting his secondary role, despite the general principle that adult offenders ordinarily receive heavier sentences than children.

Subjective factors. The court considered both offenders' backgrounds of significant disadvantage, histories of drug abuse, and mental health issues. Waters, as a young person, attracted additional sentencing considerations: courts treat youth as a mitigating factor and give greater weight to rehabilitation. The court quoted research from the Victorian Sentencing Advisory Council emphasising the capacity of young adults to change and the importance of supportive interventions. Mook was found not to have demonstrated genuine remorse, which weighed against him. Waters's position on remorse was also considered in light of the subjective material before the court.

Special circumstances. The court found special circumstances in Mook's case, which allowed it to extend the proportion of the sentence to be served on parole beyond the statutory ratio. No special circumstances were found in Waters's case.

Orders Made

Mook:
- Convicted on both charges.
- Grievous bodily harm with intent: 6 years 9 months imprisonment, with a non-parole period of 4 years commencing 28 April 2019 (expiring 27 April 2023); balance of term 2 years 9 months, expiring 27 January 2026.
- Assault occasioning actual bodily harm in company: fixed term of 11 months commencing 28 April 2019, expiring 27 March 2020.

Waters:
- Convicted on both charges.
- Grievous bodily harm with intent: 8 years 3 months imprisonment, with a non-parole period of 5 years 9 months commencing 13 March 2020; eligible for parole consideration from 12 December 2025; total sentence expiring 12 June 2028.
- Assault occasioning actual bodily harm in company: fixed term of 5 months commencing 13 March 2020, expiring 12 August 2020.

Key Takeaways

  • The parity principle does not automatically produce a lighter sentence for a younger offender where that offender is the more culpable participant in a joint criminal enterprise. The District Court imposed a longer sentence on Waters than on Mook precisely because Waters bore greater criminal responsibility, notwithstanding Waters's status as a child.

  • Where an offender is a child or young person, courts must give greater weight to rehabilitation and apply the principles in the Children (Criminal Proceedings) Act 1987, even when sentencing for very serious offences.

  • A trivial or unfathomable motive does not mitigate an offence; on the findings here, the near-absence of any rational motive underscored the arbitrary and dangerous nature of the violence rather than reducing its objective seriousness.

  • Drug intoxication did not operate as mitigation. The court found that illicit drug use appeared to have contributed to the disinhibited violence and could not reduce the offenders' culpability.

  • Special circumstances (justifying a departure from the standard non-parole ratio to allow more time on supervised parole) were assessed individually for each offender rather than as a consequence of joint proceedings: the court found them established for Mook but not for Waters.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(b), 59(2)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Administration of Sentencing) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Bugmy v The Queen (1990) 169 CLR 525; (2013) 249 CLR 571
- Markarian v The Queen (2005) 228 CLR 357
- Hili v The Queen (2010) 242 CLR 520
- Barbaro v The Queen (2014) 253 CLR 58
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Al v R; R v SB; R v Al [2011] NSWCCA 95
- KT v R [2008] NSWCCA 51
- JM v R [2012] NSWCCA 83
- Howard v R [2019] NSWCCA 109
- Kannis v R [2020] NSWCCA 79
- Engert (1995) 84 A Crim R 67
- Anderson v R (1981) VR 155