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District Court 1 April 2021

R v AM

[2021] NSWDC 433

Assault & violence
CRIME SENTENCE JUVENILE RECKLESSLY CAUSE GRIEVOUS BODILY HARM

Citation: R v AM [2021] NSWDC 433
Court: District Court of New South Wales
Date: 1 April 2021
Judge: Bourke SC DCJ

Background

The offender, AM, was a juvenile at the time of the offence. On 21 December 2019, he was involved in an altercation outside the Meriton Suites in Parramatta involving several young people. The incident was captured on CCTV and occurred in a public place during the early evening with members of the public present.

During the altercation, AM drew a 30-centimetre kitchen knife from beneath his shirt and stabbed the victim, AA (who was 17 years and 11 months old), once in the upper back. He then stabbed the victim a second time in the left forearm while the victim was on the ground. AM acted together with two co-offenders, HT and MT, who kicked and stomped on the victim during the same incident.

The victim sustained catastrophic injuries, including a life-threatening chest wound, a grade 4 liver laceration, bilateral pneumothoraces, and severe forearm damage involving transection of an ulnar nerve and artery. Paramedics had to decompress his chest en route to hospital. He was hospitalised for approximately 19 days. AM pleaded guilty at an early stage and also assisted police by disclosing where he had disposed of the knife.

  • What sentence was appropriate for a juvenile offender convicted of recklessly causing grievous bodily harm in company, given the objective seriousness of the offence?
  • Whether the standard non-parole period applied (it did not, given the offender's age at the time of the offence).
  • What discount was warranted for the early guilty plea?
  • Whether a further discount applied for assistance rendered to police.
  • Whether special circumstances existed to vary the ordinary ratio between the head sentence and the non-parole period.
  • What weight should be given to parity considerations having regard to the sentences imposed on co-offenders?
  • Whether the sentence should be served as a juvenile offender pursuant to the Children's (Criminal Proceedings) Act 1987.

Decision

The District Court found that the offence was objectively serious. AM had produced a concealed knife in a public place and stabbed the victim twice, causing near-fatal injuries. The court observed that the incident occurred in daylight in a busy area and involved coordinated conduct with co-offenders.

AM was entitled to a 25 per cent discount on his sentence for the utilitarian value of his early guilty plea. A further 3 per cent discount applied under s 23 of the Crimes (Sentencing Procedure) Act 1999 for immediately assisting police by revealing where the knife had been discarded.

On parity, the court had regard to the sentences imposed on co-offenders HT and ET. HT had received an aggregate term of two years and ten months by Intensive Correction Order, and ET had received good behaviour bonds in the Children's Court. The court treated those sentences as of limited guidance only, given the differences in offences, criminal histories, and the jurisdiction in which ET was dealt with.

The court found that no penalty other than full-time imprisonment was appropriate, crossing the threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999. Special circumstances were found to exist, warranting a departure from the ordinary ratio between head sentence and non-parole period, based on AM's youth and the fact that this was his first period in custody. The sentence was ordered to be served as a juvenile offender pursuant to s 19 of the Children's (Criminal Proceedings) Act 1987.

Orders Made

  • Head sentence of three years and six months imprisonment, commencing 21 December 2019 and expiring 20 June 2023.
  • Non-parole period of two years, expiring 20 December 2021.
  • Sentence to be served as a juvenile offender pursuant to s 19 of the Children's (Criminal Proceedings) Act 1987.
  • Finding of special circumstances made, varying the ordinary ratio between head sentence and non-parole period.

Key Takeaways

  • The standard non-parole period for recklessly causing grievous bodily harm in company does not apply where the offender was under 18 at the time of the offence, though the maximum penalty of 14 years imprisonment remains a relevant sentencing guidepost.
  • An early guilty plea attracted a 25 per cent discount for its utilitarian value, and a separate 3 per cent discount applied under s 23 of the Crimes (Sentencing Procedure) Act 1999 for immediately assisting police to locate a discarded weapon.
  • Special circumstances arose from the offender's youth and the fact that this was his first period in custody, justifying a variation to the ordinary head sentence to non-parole ratio.
  • Parity considerations carried limited weight where co-offenders faced different charges, had different criminal histories, or were sentenced in a different jurisdiction (the Children's Court).
  • Under s 19 of the Children's (Criminal Proceedings) Act 1987, the District Court ordered that the term of imprisonment be served as a juvenile offender, reflecting the significance of the offender's age in the sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Children's (Criminal Proceedings) Act 1987 (NSW), ss 19, 23
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 23

Cases:
- BP v R [2010] NSWCCA 159