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District Court 8 October 2020

R v Lonesborough

[2020] NSWDC 825

Assault & violenceDomestic & family violence
CRIME RELEVANT FACTORS ON SENTENCE EARLY GUILTY PLEA MENTALLY ILL OFFENDER BACKGROUND OF DISADVANTAGE TREATMENT PLAN AVAILABLE

Citation: R v Lonesborough [2020] NSWDC 825
Court: District Court of New South Wales
Date: 8 October 2020
Judge: Haesler SC DCJ

Background

The offender pleaded guilty in the Local Court to one charge of detaining a person with intent to obtain an advantage, aggravated by causing actual bodily harm, contrary to s 86(2)(b) of the Crimes Act 1900. The maximum penalty for that offence is 20 years' imprisonment. The offending occurred on 12 October 2019.

The offender and his male victim had formed a friendship through a mobile phone app, and their relationship had a domestic violence element. On the night in question, the offender drove the victim from Nowra toward home. During the journey, the offender, who was both drug-affected and acutely psychotic, made a series of threats, pulled off the highway to conduct erratic "interrogations," slapped and punched the victim, and bit both of his hands as the victim attempted to escape.

The victim eventually managed to flee from the car near Yallah, landing on the road and sustaining bites, lacerations, and abrasions. He was treated at Wollongong Hospital. The offender was arrested at a nearby service station shortly afterwards, appearing dishevelled, frothing at the mouth, and convinced he was the victim.

  • What was the appropriate sentence, accounting for the objective seriousness of the offence?
  • What weight should be given to the offender's mental illness (bipolar affective disorder with borderline personality traits) at the time of, and since, the offending?
  • What discount applied for the early guilty plea?
  • Whether special circumstances warranted a departure from the standard non-parole period ratio, to facilitate an extended supervised release period.

Decision

Haesler SC DCJ accepted that the offence was objectively serious. The victim endured a prolonged and terrifying ordeal, unable to comprehend what was happening or predict his fate. The absence of a Victim Impact Statement did not reduce the objective gravity of the offending. His Honour found the "advantage" the offender sought was psychological in nature, given his severely disturbed mental state at the time.

The court gave significant weight to the psychiatric evidence from Dr Richard Furst, a consultant forensic psychiatrist, who diagnosed the offender with bipolar affective disorder complicated by borderline personality traits and long-term substance abuse. Dr Furst concluded the offender had been acutely psychotic and paranoid at the time of the offence but was now stable and engaged with Corrective Services programs. His Honour applied the principles from R v Verdins [2007] VSCA 102, which recognise that mental illness may reduce moral culpability and the weight given to general deterrence on sentencing.

His Honour also noted the offender's background of disadvantage, which informed both his substance abuse history and his mental health deterioration. While that history did not excuse the offending, it was relevant context. The court acknowledged a history of failed interventions for drug and mental health issues, describing the offender's prior failure to engage with treatment as an aggravating feature, though one tempered by the circumstances of that disadvantage.

An early guilty plea was recognised and a discount applied. The notional pre-discount sentence was assessed at four years and six months' imprisonment. Special circumstances were found to exist to allow a longer parole period, giving the offender the opportunity to engage with a rehabilitation plan devised with the assistance of his sister and supported by Dr Furst's report, which was to accompany the warrant.

Orders Made

  • The offender was convicted and sentenced to imprisonment for 3 years and 4 months.
  • Non-parole period: 1 year and 8 months, commencing 12 October 2019 and expiring 11 June 2021.
  • Eligible for consideration for release to parole from 12 June 2021.

Key Takeaways

  • The District Court applied R v Verdins principles to find that acute psychosis at the time of offending reduced the offender's moral culpability and diminished the weight attributable to general deterrence, without displacing the need for a custodial sentence given the objective seriousness of the offence.
  • A background of disadvantage, including intergenerational trauma and long-term mental health decline, was treated as relevant context in mitigation, even where the offender had previously failed to engage with available treatment.
  • Special circumstances were found where a structured post-release plan, involving potential residential rehabilitation and a Mental Health Community Treatment Order, supported a reduction in the non-parole period to maximise supervised reintegration.
  • Under s 86(2)(b) of the Crimes Act 1900, the court assessed a notional starting point of four years and six months before applying the discount for an early guilty plea, yielding a total sentence of three years and four months.
  • The absence of a Victim Impact Statement does not mitigate the seriousness of an offence; the District Court confirmed that objective gravity is assessed independently of whether such a statement is provided.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(2)(b)

Cases
- R v Verdins [2007] VSCA 102; 16 VR 269 (mental illness and sentencing)
- Courtney v R [2007] NSWCCA 195
- DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1