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District Court 5 February 2021

R v Daetz

[2021] NSWDC 365

Assault & violence
CRIME VIOLENT OFFENCES

Citation: R v Daetz [2021] NSWDC 365
Court: District Court of New South Wales
Date: 5 February 2021
Judge(s): Bennett SC DCJ

Background

The offender, a man in his late thirties, pleaded guilty to reckless wounding contrary to s 35(4) of the Crimes Act 1900. A related common assault charge was taken into account on a Form 1 (a procedure by which related offences are acknowledged and factored into the sentence without a separate conviction being recorded).

The offending arose from a prolonged and escalating conflict with the victim. On 28 April 2019 the offender pushed the victim at a railway station. On the night of 9 to 10 May 2019, after repeatedly attending the victim's apartment uninvited and being told to leave, the offender became involved in a physical struggle on the common stairwell of the building. During that struggle he stabbed the victim in the chest with a knife bearing a 10-centimetre blade.

The victim's injuries were life-threatening. He suffered a penetrating chest wound, a heart laceration causing blood to collect around the heart, a collapsed lung, and cardiac arrest requiring CPR during surgery. The offender was located by police shortly after the incident and was himself found to have bruising and abrasions.

Legal Issues

  • What discount applied to the guilty plea, given it was not entered at the first opportunity and pre-trial notice requirements were not met?
  • How should the standard non-parole period of three years inform the sentence, and where does this offending fall on the range of objective seriousness?
  • What weight should be given to the offender's psychiatric history, acquired brain injury, and substance use disorders as mitigating factors?
  • Whether the offender's expressions of remorse satisfied the statutory requirement under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999.
  • Whether special circumstances existed justifying a longer than usual ratio of parole to non-parole period.
  • What commencement date was appropriate for the sentence, having regard to the principle of totality?

Decision

Guilty plea discount

The offender pleaded guilty five days before trial and had not complied with the requirement to give pre-trial notice of the plea by 23 September 2020. Applying s 25D(3)(c) of the Crimes (Sentencing Procedure) Act 1999, the court limited the discount for the guilty plea to 5% (at [6]-[8]).

Objective seriousness and standard non-parole period

The court found the offence fell below the mid-range of objective seriousness, though not by much (at [17]). The standard non-parole period of three years remained a relevant legislative guidepost, but the court emphasised, following Markarian v The Queen (2005) 228 CLR 357, that the ultimate sentence is determined by a synthesis of objective and subjective considerations rather than any strict arithmetical application of that benchmark (at [17]). The severity of the victim's injuries, which clearly amounted to grievous bodily harm, was a central objective factor. The court noted the offending fell just short of conduct that would ordinarily attract a charge in the Supreme Court (at [33]).

Mental health, acquired brain injury, and mitigating factors

The court accepted Dr Richard Furst's diagnosis of anxiety disorder, substance use disorder, and acquired brain injury resulting in persistent neuro-cognitive disorder (at [60]-[62]). This acceptance engaged the principles from Tepania v The Queen [2018] NSWCCA 247 and R v De La Rosa [2010] NSWCCA 194 regarding the relevance of mental health to moral culpability. The court found these conditions modestly reduced moral culpability, but balanced that finding against the offender's extensive criminal history, the need for community protection, and the recognition that ongoing illicit drug use materially exacerbated his risk (at [62]-[63]).

Remorse, special circumstances, and rehabilitation

The court found the offender's expressions of remorse, conveyed through his adoptive mother rather than on oath, did not meet the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (at [65]). Nevertheless, the court identified special circumstances warranting an extended parole period, citing the offender's positive work history, ongoing family relationships, and the need for prolonged community supervision to support rehabilitation (at [71]-[72]). The sentence was backdated to commence on 5 January 2020 to reflect the principle of totality, giving partial concurrence with the pre-existing custodial period arising from the revocation of Intensive Corrections Orders (at [12]-[14]).

Orders Made

  • Term of imprisonment of 3 years and 9 months.
  • Non-parole period of 2 years commencing 5 January 2020, expiring 4 January 2022.
  • Further period of 1 year and 9 months, during which the offender is eligible for parole.
  • Court recommended release to parole at expiration of the non-parole period.
  • Community Corrections Order (H70660868) revoked; no further penalty imposed for that breach.
  • Form 1 offence (common assault, count 1) taken into account and certificate issued.

Key Takeaways

  • A guilty plea entered five days before trial, without compliance with pre-trial notice requirements under the Early Appropriate Guilty Plea (EAGP) scheme, attracts only a 5% discount under s 25D(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (at [6]-[8]).

  • The District Court confirmed that the standard non-parole period functions as a legislative guidepost rather than an arithmetical starting point; a finding that an offence falls below mid-range does not automatically produce a proportionate reduction in the non-parole period, consistent with Markarian v The Queen (at [17]).

  • Accepted psychiatric evidence of acquired brain injury and associated neuro-cognitive disorder can reduce an offender's moral culpability in sentencing, but that mitigating effect may be counterbalanced by the need for community protection where the offender has a serious and lengthy criminal history (at [62]).

  • Expressions of remorse conveyed through a third party and not given on oath or tested by cross-examination may not satisfy s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, which requires genuine evidence of contrition (at [65]).

  • Special circumstances justifying an extended parole period were established where the offender, given his history of institutionalisation, mental health conditions, and substance use, required an extended period of supervised reintegration into the community (at [71]-[72]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Attorney General’s Application Under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 [2002] NSWCCA 518
- Callaghan v R [2006] NSWCCA 58
- Imbornone v The Queen [2017] NSWCCA 144
- Markarian v The Queen. (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39
- Qutami v R [2001] NSWCCA 353
- R v De La Rosa [2010] NSWCCA 194
- Tepania v The Queen [2018] NSWCCA 247