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District Court 2 November 2020

R v Histon

[2020] NSWDC 700

Assault & violence

Citation: R v Histon [2020] NSWDC 700
Court: District Court of New South Wales
Date: 2 November 2020
Judge(s): Bennett SC DCJ

Background

The offender pleaded guilty to recklessly wounding another person, contrary to s 35(4) of the Crimes Act 1900, following an incident in Surry Hills in the early hours of 27 October 2018. The offender, a resident of a lodging house on Bourke Street, approached a former resident who was seated on the building's verandah and struck her left hand with a piece of broken glass without any provocation. The victim suffered lacerations requiring hospital treatment at St Vincent's Hospital.

The offender had a documented history of brain injury sustained in a motor vehicle collision, which affected his mental state and functioning. There were initial questions about his fitness to plead, which required investigation before the matter could progress. He ultimately entered a guilty plea to the reckless wounding charge, which the Crown accepted in satisfaction of an indictment that had included a more serious offence charged in the alternative.

The offender had been held in custody continuously since the date of the offence. By the time of sentencing, he had spent approximately two years and seven days in pre-sentence custody.

  • What was the appropriate objective seriousness of the offence, assessed against the standard non-parole period of three years?
  • What discount applied for the early guilty plea, and how should questions about fitness to plead affect that assessment?
  • How should the offender's brain injury and associated mental condition be weighed in determining moral culpability and the sentence?
  • Whether special circumstances existed justifying a non-parole period shorter than the statutory ratio, to allow a longer period of supervised parole.

Decision

The District Court assessed the objective gravity of the offence as falling below the mid-range of objective seriousness. The Crown itself conceded the absence of any statutory aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999. The Court noted the attack was a single, impulsive blow of short duration, though it acknowledged the blow was delivered with significant force as captured on closed-circuit television footage.

The Court applied a 25% discount for the guilty plea under s 25D(5)(a) of the Crimes (Sentencing Procedure) Act 1999, treating the plea as entered at the earliest opportunity. The delay caused by the fitness-to-plead process did not disqualify the offender from receiving the full discount, given the circumstances surrounding those inquiries.

The offender's brain injury was a central subjective consideration. Drawing on principles from Tepania v The Queen and Veen v R (No. 2), the Court recognised that mental disorder causally connected to an offence can reduce moral culpability, even where community protection remains a relevant sentencing objective. The Court accepted that the offender's impairment contributed to his conduct, reduced his blameworthiness, and meant the custodial term would weigh more heavily on him, including in the context of the COVID-19 pandemic.

The Court found special circumstances existed, warranting a longer parole period relative to the non-parole period. The offender required extended supervision in the community to access treatment programs assembled for his care. As he had nearly served the custodial component of the sentence by the time of the hearing, the sentencing structure was shaped accordingly.

Orders Made

  • Convicted of the offence of reckless wounding.
  • Non-parole period of 2 years and 1 month, commencing 27 October 2018 and expiring 26 November 2020.
  • Further period of imprisonment during which the offender is eligible for parole of 1 year and 1 month, expiring 26 December 2021.
  • Exhibits to remain on file and accompany the offender so as to be available to parole authorities.

Key Takeaways

  • The District Court confirmed that a brain injury causally connected to the commission of an offence is a relevant subjective factor capable of reducing moral culpability, even where specific and general deterrence, and community protection, remain live sentencing considerations.
  • Under the framework established in Muldrock v The Queen, the standard non-parole period operates as a benchmark to be weighed against all objective and subjective factors; it does not operate as a starting point or minimum.
  • A guilty plea entered following a fitness-to-plead inquiry does not automatically forfeit the maximum discount available under s 25D(5)(a) of the Crimes (Sentencing Procedure) Act 1999, where the circumstances of the delay are explained by the inquiry process itself.
  • Special circumstances justifying a shorter non-parole period (and correspondingly longer parole period) were established where the offender's impairment meant he required extended community supervision to access treatment, consistent with principles discussed in DPP (C'th) v De La Rosa.
  • Sentencing courts must record reasons for departing from the standard non-parole period, identifying each relevant factor as required by s 54D(3) of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25D(5)(a), 54A(2), 54B(2), 54D(3), Part 4 Div 1A

Cases
- DPP (C'th) v De La Rosa [2010] NSWCCA 194
- Muldrock v The Queen [2011] HCA 39
- R v Presser [1959] VR 45
- Tepania v The Queen [2018] NSWCCA 247
- Veen v R (No. 2) [1988] HCA 14