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District Court 14 December 2020

R v Ford

[2020] NSWDC 917

Assault & violenceDrugsFirearms & weaponsPublic order & justice offences
CRIME AFFRAY RECKLESS WOUNDING BREACH OF BOND SENTENCING RELEVANT FACTORS ON SENTENCE EARLY PLEA

Citation: R v Ford [2020] NSWDC 917
Court: District Court of New South Wales
Date: 14 December 2020
Judge: Haesler SC DCJ

Background

On Australia Day 2020, what began as a friendly exchange between two groups celebrating in Wollongong descended into a violent street confrontation. The offender, who had been drinking and using drugs, armed himself with a knife taken from nearby premises and was also found to be carrying knuckledusters. When the two groups clashed in a public street, he kicked a young woman, wielded the knife, and after being disarmed, smashed a glass beer bottle and used it to wound a young man in the abdomen. The victim was hospitalised overnight and required suturing.

The offender pleaded guilty to three charges: affray under the Crimes Act 1900, reckless wounding under the same Act, and possession of a prohibited weapon (knuckledusters) under the Weapons Prohibition Act 1998. Two additional matters, resisting arrest and possession of MDMA, were placed on a Form 1 to be taken into account on the weapons charge.

The sentencing proceeded against a background of prior convictions including offences of violence and possession of knives, a prior parole breach, and a community corrections order that was in force at the time of the offending.

  • What was the appropriate aggregate sentence across three charges of varying objective seriousness, particularly where reckless wounding was identified as the most serious despite carrying the lowest maximum penalty?
  • How should the Form 1 matters (resisting arrest and MDMA possession) affect the sentence, given that neither would likely have crossed the imprisonment threshold on its own?
  • What weight should be given to a background of disadvantage and reduced moral culpability, following the principles in Bugmy v The Queen?
  • What independent punishment, if any, was warranted for the breach of a community corrections order (bond), separate from its role as an aggravating factor on the primary offences?
  • Did special circumstances exist justifying a departure from the standard ratio between non-parole period and head sentence?

Decision

Haesler SC DCJ identified reckless wounding as the most serious of the three charges, notwithstanding its lower maximum penalty of seven years. The court's reasoning emphasised that the victim was struck with a smashed bottle while running away from the offender, who faced no imminent threat. The escalation from knife to improvised bottle weapon, in a busy public location, demonstrated a reckless disregard for public safety.

On the Form 1 matters, the court applied the Court of Criminal Appeal's guideline in Attorney General's Application No. 1, which requires guideline judgments to be given effect. Although neither the MDMA possession nor the resisting arrest would independently have warranted imprisonment, both were taken into account in calibrating the overall sentence.

The court accepted that the offender's background of disadvantage, including a difficult family environment, a stepfather with whom he had a troubled relationship, a mother with significant personal problems, ADHD diagnosed from a young age, and a consequent drift into drug dependency, reduced his moral culpability. Applying Bugmy v The Queen, the court held that his culpability should not be treated as equivalent to that of an offender whose early life had not been similarly affected. His early guilty plea attracted a 25 percent reduction across all indicated sentences.

On the breach of the community corrections order, the court imposed a modest but independent one-month sentence. Haesler SC DCJ reasoned that carrying knuckledusters while knowingly going out to drink constituted a calculated breach of a promise made to the court, warranting separate punishment. The court was careful to avoid double-counting this as both an aggravating factor and a standalone punishment. Special circumstances were found, resulting in a non-parole period shorter than the statutory default ratio, to allow a longer period of supervised release and rehabilitation.

Orders Made

  • Breach of community corrections order proved; one month imprisonment imposed for each breach matter, dated from 26 January 2020 and expiring 25 February 2020.
  • Affray: 1 year 6 months imprisonment (after 25% discount).
  • Possess or use a prohibited weapon without permit (including Form 1 matters): 1 year 1 month imprisonment, non-parole period of 8 months (after 25% discount).
  • Reckless wounding: 3 years imprisonment, non-parole period of 2 years (after 25% discount).
  • Total aggregate sentence: 3 years 9 months.
  • Aggregate non-parole period (reflecting special circumstances): 2 years 3 months, commencing 26 February 2020 and expiring 25 May 2022.
  • Balance of sentence: 1 year 6 months, commencing 26 May 2022 and expiring 25 November 2023.
  • Eligibility for parole consideration from 25 May 2022, subject to the State Parole Authority.
  • Backup offences (sequences 7, 8, and 9) withdrawn and dismissed.
  • Sequences 3 and 4 noted as taken into account on the Form 1.

Key Takeaways

  • A background of disadvantage, including childhood family dysfunction, ADHD, and drug dependency, can reduce an offender's moral culpability and mitigate sentence, following the High Court's direction in Bugmy v The Queen, even where the offender has a prior criminal history.
  • Where Form 1 matters would not independently have crossed the imprisonment threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999, the court is still required to take them into account in accordance with the CCA's guideline in Attorney General's Application No. 1.
  • Objective seriousness is not determined solely by maximum penalty: the District Court held that reckless wounding was the gravest charge before it, despite carrying a lower maximum than the prohibited weapon offence, because of the nature of the weapon used and the circumstances of the infliction.
  • An offender's breach of a community corrections order can attract independent punishment separate from its role as a sentencing aggravator, provided the sentencing court takes care to avoid double-counting.
  • The absence of a Victim Impact Statement does not operate to mitigate sentence; courts may take into account the likelihood of both physical and psychological harm to victims of violent offences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(4), 93(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 30E(5)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Attorney General's Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37