AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 9 September 2021

R v NGOMA

[2021] NSWDC 462

Assault & violenceDrugsDomestic & family violence
CRIMES COMMON ASSAULT DRUG USE COVID 19 EFFECT ON CUSTODY ACCUMULATION OF SENTENCES

Citation: R v NGOMA [2021] NSWDC 462
Court: District Court of New South Wales
Date: 9 September 2021
Judge: Lerve DCJ

Background

The offender pleaded guilty to three substantive offences arising from a series of violent incidents in Wagga Wagga in April 2020. The offending occurred in and around a residential unit block where he lived, and involved an intermittent domestic partner and several other women present in a neighbouring unit. Three further charges were dealt with on a Form 1 document (meaning they were taken into account in sentencing without separate convictions being recorded).

On 22 April 2020, the offender struck his domestic partner from behind as she attempted to leave his unit, constituting the common assault charged as count 1. The following morning, he forced entry into a neighbouring unit by breaking through the front door, intimidated the occupants with threatening language, and assaulted several women inside. A male neighbour who came to assist was lifted from behind and slammed onto concrete, suffering a traumatic extradural haematoma, a skull fracture, and other serious head injuries. He was airlifted to hospital and made a good recovery.

The offender had been diagnosed with schizophrenia in his early twenties. Expert evidence from a forensic psychologist was tendered, and Justice Health records were before the court. A key sentencing question was the extent to which the offender's mental illness, combined with drug use, causally contributed to the offending.

  • The appropriate discount for the utilitarian value of guilty pleas entered through the Early Appropriate Guilty Plea (EAGP) scheme
  • Whether, and to what extent, the offender's schizophrenia and drug use causally contributed to the offending, and how that causal connection should affect the assessment of moral culpability
  • How the Form 1 charges should be reflected in the sentence for count 2 (the break, enter and intimidation)
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio
  • How the sentences on the three counts should be accumulated or concurrently served, given the involvement of different victims and different offending

Decision

Lerve DCJ accepted a 10% discount for the utilitarian value of the guilty pleas, consistent with the joint position of the parties and the applicable legislation. The court then turned to the significance of the offender's mental illness. The forensic psychologist's report acknowledged that the offender experienced hallucinations and delusions when unmedicated, and that he had been unmedicated at the time of the offending. However, the court also noted a significant complication: the offender had been using cannabis and other substances, and drug use was itself capable of triggering or exacerbating psychotic symptoms. The court found that there was some causal connection between the mental illness and the offending, but that drug use remained an independent aggravating feature.

The court applied the standard sentencing principles for offenders with mental illness, drawing on the line of authority including cases such as Muldrock v The Queen and related Court of Criminal Appeal decisions. A reduced level of moral culpability was attributed to the offender by reason of his mental illness, but the gravity of the offending, particularly the sustained violence in the neighbour's unit and the serious injury caused to Mr Glover, remained significant factors in the objective assessment.

Special circumstances were found to exist. The primary reason was the need for an extended supervision period on parole to ensure the offender received treatment for both his schizophrenia and substance abuse, and specifically to address compliance with his anti-psychotic medication. The partial accumulation of sentences also contributed to the lower-than-standard ratio between the non-parole period and the total sentence. The court directed that the forensic psychologist's report and the summary of Justice Health records accompany the warrant to Corrective Services.

The Form 1 charges were required to have some meaningful impact on the sentence for count 2. The court was careful to note that the three assaults on the Form 1 document were not taken into account in assessing the objective seriousness of that count, consistent with established principle. The sentences were partially accumulated to reflect the fact that different victims were involved and that the offending was distinct, while avoiding a crushing outcome disproportionate to the overall criminality.

Orders Made

  • The offender was convicted of all three offences to which he pleaded guilty.
  • An aggregate sentence of 4 years and 3 months was imposed, with a non-parole period of 2 years and 6 months.
  • The non-parole period commences 25 December 2020 and expires 24 June 2023.
  • The balance of term commences 25 June 2023 and expires 24 March 2025.
  • The court recommended the offender's release to parole at the expiration of the non-parole period.
  • Special circumstances were found, based on the need for intensive supervision addressing mental health treatment, medication compliance, and substance abuse.
  • Copies of the forensic psychologist's report and the Justice Health records summary were directed to accompany the warrant to Corrective Services.
  • The total effective sentence across all matters runs from 26 March 2020 to 24 March 2025.

Key Takeaways

  • Where a diagnosed mental illness is accompanied by voluntary drug use that independently triggers or worsens psychotic symptoms, the causal connection between illness and offending remains relevant but the drug use does not disappear as a sentencing consideration.
  • A finding of special circumstances can be grounded in the need for extended post-release supervision to ensure compliance with anti-psychotic medication and ongoing mental health treatment, particularly where non-compliance is linked to the offending itself.
  • Partial accumulation of sentences is appropriate where offending involves distinct acts against different victims, even where the events occurred in close temporal proximity.
  • The District Court confirmed that Form 1 offences must have a meaningful impact on the sentence imposed for the related principal offence, but must not be used to inflate the objective seriousness of that count.
  • Directing that psychological and medical reports accompany the warrant to Corrective Services is a practical mechanism available to sentencing courts to support continuity of treatment in custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(2), 61, 112(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Muldrock v The Queen [2011] HCA 39
- The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act No. 1 of 2002 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1 matters)
- DPP (Cth) v De La Rosa (2010) NSWLR 1
- Hunter v R [2011] NSWCCA 141
- Mbele v R [2021] NSWCCA 182
- McCullough [2009] NSWCCA 94
- Tepania v R [2018] NSWCCA 247
- Valentine v R [2020] NSWCCA 116