Citation: R v El Farra [2020] NSWDC 895
Court: District Court of New South Wales
Date: 14 December 2020
Judge(s): M L Williams SC DCJ
Background
The offender, a 43-year-old man, appeared for sentencing after pleading guilty to one count of reckless wounding under s 35(4) of the Crimes Act 1900. The offence occurred on 19 July 2019 at Villawood, where the offender produced a large knife during a verbal altercation and stabbed the victim in the neck. The victim and offender had known each other for approximately six months prior to the incident.
The wound measured 8 x 2 centimetres with a deep tract injury to the back of the neck. The victim was hospitalised at Liverpool Hospital for three days, though no lasting damage was recorded. The offender fled the scene before being arrested on 26 July 2019, and had remained in custody since that date.
The sentencing proceeding also addressed breaches of two Community Corrections Orders that had been imposed by Local Courts before the offending occurred.
Legal Issues
- What was the appropriate head sentence and non-parole period for reckless wounding, having regard to objective seriousness, aggravating factors, and mitigating factors?
- What discount applied to reflect the utilitarian value of the guilty plea?
- Whether special circumstances existed justifying a departure from the standard ratio of non-parole period to head sentence.
- How the breached Community Corrections Orders should be dealt with on call-up.
- What weight to assign to unsworn expressions of remorse and rehabilitation not tested in cross-examination.
Decision
His Honour found the offending to fall within the mid-range of objective seriousness. Although a single stab wound was inflicted, the use of a large knife directed at the neck created a high foreseeable risk of wounding, with potentially life-threatening consequences. There was no evidence of physical provocation by the victim.
Two significant aggravating factors applied. First, the offender was on conditional liberty at the time, having been subject to Community Corrections Orders. Second, a weapon was used. The offender's lengthy criminal history, which included convictions for armed robbery, assault occasioning actual bodily harm, and drug supply, and which involved more than ten years of adult custodial time, was also a serious aggravating factor.
On the subjective case, his Honour approached the offender's unsworn letter and psychological report with appropriate caution, consistent with the principles in Imbornone v R and R v Qutami, given neither was tested in cross-examination. Some weight was nonetheless given to expressed remorse, engagement in the EQUIPS Addiction and Aggression Programs in custody, and the psychologist's assessment of reasonable rehabilitation prospects if treatment continued. Drug use was not directly linked to the commission of the offence, though the offender's record was described as consistent with someone in the grip of long-term addiction.
Special circumstances were established, based on the need for an extended period of supervised release to address continuing substance abuse and addiction issues, and the risk of institutionalisation arising from the lengthy cumulative time the offender had spent in custody.
Orders Made
Bond Call-Up Orders:
- Community Corrections Order (2018/377919): revoked; offender convicted, no further penalty imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999
- Community Corrections Order (2018/258170): revoked; offender convicted, no further penalty imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999
Sentence:
- Count 1 (Reckless wounding): convicted; sentenced to 3 years and 2 months imprisonment, commencing 26 July 2019
- Non-parole period of 2 years and 1 month, expiring 25 August 2021
- 10% discount applied for the utilitarian value of the guilty plea
- Special circumstances found
Key Takeaways
- The District Court assessed a single-wound knife attack to the neck, with a three-day hospitalisation but no lasting injury, as falling within the mid-range of objective seriousness for reckless wounding under s 35(4) of the Crimes Act 1900.
- Offending while on conditional liberty and the use of a weapon each operated as statutory aggravating factors, adding weight to the sentence.
- Unsworn expressions of remorse and rehabilitation, whether in a letter or reported to a psychologist, carry reduced weight where the offender does not give sworn evidence subject to cross-examination, following Imbornone v R and Pfitzner v R.
- Special circumstances can be established where an offender faces a high risk of institutionalisation from extended cumulative custodial time, combined with a need for ongoing supervised engagement with rehabilitation programs.
- Where an offender on a Community Corrections Order has already served a significant remand period, revocation with no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 may be an appropriate disposition on call-up.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 35(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A
Cases:
- Imbornone v R [2017] NSWCCA 144
- Melbom v R [2013] NSWCCA 210
- Oh Hyunwook v R [2010] NSWCCA 148
- Pfitzner v R [2010] NSWCCA 314
- R v Cage [2006] NSWCCA 304
- R v Gordon (1994) 71 A Crim R 459
- R v Qutami (2001) 127 A Crim R 369