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District Court 9 March 2021

R v Rozs

[2021] NSWDC 350

Assault & violenceTheft & property

Citation: R v Rozs [2021] NSWDC 350
Court: District Court of New South Wales
Date: 9 March 2021
Judge: M L Williams SC DCJ

Background

The offender, a 23-year-old man, pleaded guilty to one count of aggravated break, enter and commit a serious indictable offence, namely reckless wounding, under s 112(2) of the Crimes Act 1900. The offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of five years.

In the early hours of 10 March 2020, the offender entered a victim's home in Mittagong and attacked him with a metal implement, described as an envelope opener or nail file. The offender inflicted six stab wounds, penetrating skin and muscle but causing no damage to organs or bones. The victim was airlifted to Liverpool Hospital. The offender was on parole at the time, having been released only six weeks earlier.

The offender had a lengthy criminal history and had spent most of his life from age 15 in custody. Psychological evidence before the court painted a picture of profound childhood disadvantage, including removal from his mother's care at age 12, exposure to domestic violence, neglect, parental drug abuse and a father with schizophrenia. The offender was himself diagnosed with schizophrenia, depression and ADHD, and had a long-standing daily methylamphetamine dependency.

  • What sentence was appropriate for a mid-range offence of aggravated break, enter and reckless wounding, having regard to the offender's objective criminality and subjective circumstances?
  • What weight should be given to the offender's profound childhood disadvantage and its effect on moral culpability, applying the principles in Bugmy v The Queen (2013) 249 CLR 571?
  • Whether special circumstances existed to justify a non-parole period that departed from the statutory norm, in light of the offender's need for structured supervision and drug treatment.
  • Whether the offender should be referred to the Compulsory Drug Treatment Program under the Drug Court Act 1998.

Decision

The District Court assessed the offending as sitting towards the mid-range of objective seriousness for this type of offence. Aggravating features included the absence of warning or provocation, multiple blows and stab wounds delivered with a weapon, the fact the victim was in his own home, the presence of others including a child, and the offender's status on parole at the time.

His Honour applied the Bugmy principles, accepting that the offender's deeply disadvantaged upbringing, which included neglect, family violence, drug exposure, removal from parental care and early institutionalisation, significantly reduced his moral culpability. The offender's criminal history did not attract leniency, but the court acknowledged the acknowledged risk of institutionalisation as a relevant sentencing consideration. Expressions of remorse and recognition of a need for change were also weighed in the balance.

A 25% discount was applied to reflect the utilitarian value of the early guilty plea. Special circumstances were found to exist, justifying a reduction in the non-parole period below the standard ratio, on the basis that a longer period of post-release supervision would allow for a structured release plan through the Compulsory Drug Treatment Program to address the offender's entrenched substance addiction and mental health needs.

The court also referred the offender to the Drug Court to assess his suitability for a Compulsory Drug Treatment Order under s 18B of the Drug Court Act 1998, noting that intensive treatment and community supervision offered the best prospect for managing the offender's risk upon release.

Orders Made

  • The offender was convicted of aggravated break, enter and commit a serious indictable offence (reckless wounding).
  • A sentence of imprisonment of three years and three months was imposed, commencing 9 March 2021, incorporating a 25% discount for the early guilty plea.
  • A non-parole period of 19 months was set, expiring 8 October 2022.
  • Special circumstances were found.
  • The offender was referred to the Drug Court under s 18B of the Drug Court Act 1998 for assessment of suitability for a Compulsory Drug Treatment Order.

Key Takeaways

  • The District Court confirmed that profound childhood disadvantage, including removal from parental care, exposure to family violence and neglect, can significantly reduce an offender's moral culpability at sentence, consistent with the High Court's approach in Bugmy v The Queen (2013) 249 CLR 571.
  • A lengthy criminal record does not entitle an offender to leniency, but the risk of institutionalisation arising from that history remains a relevant factor the sentencing court must take into account.
  • Special circumstances justifying a reduced non-parole period can be established where the offender's need for a structured, supervised reintegration plan is directly tied to entrenched drug addiction and mental illness, even where the offender was on parole at the time of the offence.
  • Under s 18B of the Drug Court Act 1998, a court sentencing to imprisonment may refer an offender to the Drug Court for assessment of suitability for a Compulsory Drug Treatment Order, which the District Court used here as a mechanism to address the offender's chronic methylamphetamine dependency.
  • Objective seriousness was assessed at the mid-range despite multiple stab wounds, because the individual wounds did not penetrate organs or bones; the full sentencing picture required weighing that assessment against both significant aggravating circumstances and substantial mitigating subjective factors.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Drug Court Act 1998 (NSW), s 18B

Cases
- Bugmy v The Queen (2013) 249 CLR 571