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District Court 19 June 2020

R v Lester

[2020] NSWDC 642

Assault & violence
CRIME SENTENCE RECKLESS WOUNDING UNPLANNED OFFENCE PERCEIVED THREAT SELF

Citation: R v Lester [2020] NSWDC 642
Court: District Court of New South Wales
Date: 19 June 2020
Judge: Norrish QC DCJ

Background

The offender, an Aboriginal man with no significant prior criminal history, appeared for sentencing on a single charge of reckless wounding under s 35(4) of the Crimes Act 1900, arising from an incident on 25 May 2019 near Nowra. He had pleaded guilty and was committed from the Local Court for sentence. He had been on bail throughout.

The offence arose from a neighbourhood dispute over a dog. The offender, believing the victim had threatened him during an earlier conversation, went to the victim's home to confront him. He carried a knife for what he described as self-protection. During the encounter, the victim struck the offender in the lower abdomen with a knife. As the offender moved backwards, away from the victim and toward the door, he stabbed the victim in the chest area. The agreed facts described this as an act of excessive self-defence. The victim was not charged with any offence.

The victim sustained serious chest injuries requiring immediate treatment, including a penetrating wound into the chest cavity. The offender was unaware the victim was also armed until the struggle occurred, and the victim's weapon was never recovered after household members were reportedly told to hide weapons.

  • Whether a full-time custodial sentence was required, or whether the sentence could be served by way of Intensive Correction Order (ICO)
  • Whether the s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 (requiring imprisonment to be a last resort) had been crossed
  • How the standard non-parole period of three years applied where no full-time custodial sentence was imposed
  • How to weigh the multiple mitigating factors, including the offender's Aboriginality, good character, unplanned offending, provocation, remorse, and prospects of rehabilitation

Decision

The District Court found the offending fell well below the middle range of objective seriousness for reckless wounding. The offence was unplanned, arose in the context of excessive self-defence, and involved provocation. The offender had no significant prior convictions, had demonstrated genuine remorse, and presented good prospects of rehabilitation.

His Honour accepted that the s 5 threshold had been crossed, meaning full-time custody could not be ruled out. However, applying the framework from Parente v R (2017) NSWCCA 284 and related authorities, the court worked through the required sequential analysis: first determining the appropriate sentence, and only then considering whether it should be served in custody or by ICO. Because the appropriate sentence did not exceed two years, an ICO was available.

The court addressed the relevance of the standard non-parole period, noting that under s 54C of the Crimes (Sentencing Procedure) Act 1999, a non-custodial or non-full-time custodial sentence remains open for offences carrying a standard non-parole period, provided the court records its reasons and identifies each mitigating factor relied upon. An ICO, by its nature, does not permit the fixing of a separate non-parole period.

The court also applied the principles from Bugmy v R [2013] HCA 37 regarding the relevance of the offender's Aboriginality and background to the sentencing exercise. Taken together, the many mitigating factors supported a sentence to be served by way of ICO rather than full-time custody. The court noted the sentence would convert to full-time custody if the offender failed to comply with ICO conditions.

Orders Made

• The offender is to attend the Court Registry at Nowra when leaving the dock to receive an explanation of the orders
• The sentence is not to be served by way of full time custody at this time
• The offender is subject to conditions imposed by the court to be complied with as directed by Community Corrections
• Failure to comply with the imposed conditions may result in return to custody

Key Takeaways

  • Under s 54C of the Crimes (Sentencing Procedure) Act 1999, a court may impose a non-custodial or non-full-time custodial sentence for an offence that carries a standard non-parole period, provided it records its reasons and identifies each mitigating factor.
  • Where a sentence is served by way of ICO, no non-parole period is fixed, because the structure of an ICO does not permit it.
  • The sequential sentencing framework confirmed in Parente v R requires a court to determine the appropriate length of sentence before turning to the question of whether full-time custody or an ICO is appropriate; the sentence cannot be fashioned to engineer an ICO outcome.
  • An offender's Aboriginality remains a relevant consideration in sentencing, consistent with the High Court's guidance in Bugmy v R and Munda v Western Australia.
  • Multiple mitigating factors, including an unplanned offence, provocation, excessive self-defence, no significant criminal history, genuine remorse, and strong rehabilitation prospects, can cumulatively support a departure from full-time custody even where the s 5 threshold has been crossed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(4) (reckless wounding)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(3), 54A, 54B, 54C

Cases
- Bugmy v R [2013] HCA 37
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Munda v Western Australia [2013] HCA 38
- Parente v R (2017) NSWCCA 284
- R v Engert (1995) 84 A Crim R 67
- R v Zamagias [2002] NSWCCA 17
- Way v R [2004] NSWCCA 131