Citation: R v Martin [2021] NSWDC 358
Court: District Court of New South Wales
Date: 1 July 2021
Judge(s): Buscombe DCJ
Background
The offender pleaded guilty to wounding a stranger with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years. The victim was a 19-year-old who had finished work and was walking to Kings Cross railway station on the afternoon of 4 May 2020.
The offender followed the victim along Darlinghurst Road before running up behind him at the station entrance and slicing a sharp implement across the left side of his throat in a single motion. The attack was entirely unprovoked. The victim suffered a 10-centimetre laceration that cut through multiple layers of tissue and partially transected a neck muscle, requiring surgical repair under general anaesthetic, including ligation of a small arterial bleed. He spent two nights in hospital.
Shortly after the attack, police arrested the offender nearby. A silver implement approximately 15 centimetres long with a sharp triangular point was found in her bag and appeared to have blood on it. While in custody that evening, the offender displayed signs of acute mental disturbance, including paranoid ideation, and was conveyed to St Vincent's Hospital. An emergency department registrar noted a diagnosis of paranoid schizophrenia, though a full mental health assessment could not be completed at that time due to intoxication.
Legal Issues
- What sentence was appropriate for the offence of wounding with intent to cause grievous bodily harm, having regard to the objective seriousness of the conduct?
- How should the offender's mental illness, specifically paranoid schizophrenia, bear on the assessment of moral culpability and the weight given to general deterrence?
- How should intoxication at the time of the offending be treated in the sentencing calculus?
- Was departure from the standard non-parole period of seven years warranted, and if so, on what basis?
Decision
Buscombe DCJ found the offending to be objectively serious. The attack was random, unprovoked, delivered with a weapon to a highly vulnerable part of the body (the throat), and carried a real risk of death. The use of a weapon was an aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW). The victim suffered significant physical injury and, as his victim impact statement conveyed, lasting psychological harm.
On the question of mental illness, the court found that the offender had a lengthy documented history of paranoid schizophrenia and had been using illicit substances, including methamphetamine, in the period surrounding the offence. Her presentation earlier that morning, the nature of her behaviour before and after the stabbing, and her acute distress in custody were all consistent with a psychotic episode. Applying the principles in Bugmy v The Queen [2013] HCA 37, the court accepted that her mental illness reduced her moral culpability and diminished the weight that would otherwise attach to general deterrence.
Intoxication at the time of the offending did not, on its own, mitigate the sentence. However, the court treated the combination of serious mental illness, substance dependency, and the absence of any apparent rational motive as factors bearing on culpability. The court also took into account the offender's plea of guilty, her background, and the guidance provided by the Court of Criminal Appeal decisions in Elturk v The Queen [2014] NSWCCA 61 and The Queen v Stonestreet [2020] NSWCCA 212, while noting that two cases do not establish a fixed sentencing range.
The court departed from the standard non-parole period of seven years, treating that figure as a legislative guidepost rather than a mandatory starting point. The particular features of the offender's subjective case, centred on her mental health history and reduced moral culpability, justified imposing a materially lower sentence. The total term was set at five years and eight months, with a non-parole period of two years and ten months, structured to reflect both the gravity of the offence and the need for proportionality given the offender's circumstances.
Orders Made
- The offender was convicted of the offence to which she pleaded guilty.
- A sentence of 5 years and 8 months imprisonment was imposed, with a non-parole period of 2 years and 10 months.
- The sentence commenced on 4 May 2020, with the non-parole period expiring on 3 March 2023 and the total term expiring on 3 January 2026.
Key Takeaways
- Departure from the standard non-parole period under s 33(1)(a) of the Crimes Act 1900 was warranted where the offender's serious mental illness and associated reduction in moral culpability constituted compelling subjective considerations.
- A diagnosis of paranoid schizophrenia, supported by evidence of an acute psychotic episode at the time of the offence, reduced both the offender's moral culpability and the weight to be given to general deterrence, consistent with the High Court's approach in Bugmy v The Queen [2013] HCA 37.
- Intoxication at the time of a serious violent offence did not, of itself, operate as a mitigating factor, though it could be relevant when considered alongside an established mental illness.
- Sentencing remains an instinctive synthesis of multiple factors, and the District Court confirmed that two Court of Criminal Appeal decisions cited in submissions did not establish a fixed sentencing range for the offence.
- The objective gravity of a random, unprovoked attack on a stranger with a weapon, directed at a vulnerable area of the body, was treated as significant even where the offender's mental state reduced personal culpability.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
Cases
- Bugmy v The Queen [2013] HCA 37
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Elturk v The Queen [2014] NSWCCA 61
- Moiler v The Queen [2021] NSWCCA 73
- The Queen v Stonestreet [2020] NSWCCA 212