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District Court 28 July 2021

R v Thompson, Jordon

[2021] NSWDC 590

Assault & violence
SENTENCE ATTEMPT TO GET AWAY FROM VICTIM VICTIM FELL FROM THE CAR AT SPEED A SSESSMENT OF REMORSE

Citation: R v Thompson, Jordon [2021] NSWDC 590
Court: District Court of NSW
Date: 28 July 2021
Judge: P Taylor SC DCJ

Background

The offender pleaded guilty to recklessly causing grievous bodily harm, contrary to section 35 of the Crimes Act 1900, which carries a maximum penalty of ten years' imprisonment. The charge arose from an incident in the early hours of 3 December 2019 outside a tavern in Rydalmere, NSW.

The offender had driven with a friend to a location where they met a woman who had agreed to supply prohibited drugs. As the woman leaned through the passenger window to hand over the drugs, the offender released the handbrake and accelerated away with her body still partly inside the vehicle. She clung to the moving car, screaming for it to stop, before losing her grip and falling to the road approximately 50 metres from the starting point. The offender did not stop to render assistance and instead drove home.

The victim sustained catastrophic injuries, including traumatic brain injury, skull and spinal fractures, a dissected artery in her left arm, subdural haematoma, and damage to her eye, ear and facial nerves. She remained unconscious for over three weeks and was hospitalised for more than seven weeks. Two additional offences were taken into account on a Form 1: failing to stop and assist after the impact causing grievous bodily harm, and failing to provide driver details. The first of those carries a maximum of seven years' imprisonment.

  • What was the appropriate head sentence and non-parole period for reckless grievous bodily harm, having regard to the standard non-parole period of four years under the Crimes (Sentencing Procedure) Act 1999?
  • What discount should apply for the early guilty plea?
  • What weight should be given to the offender's mental health issues in assessing subjective circumstances?
  • How should the court assess the offender's remorse, given that he had initially denied involvement and disputed key facts at the sentencing hearing?
  • Whether special circumstances existed to justify a non-parole period that departs from the statutory ratio.
  • Whether the sentence could be served by way of Intensive Correction Order (ICO).

Decision

The court accepted that the offence was serious. The victim's injuries were grave and permanent, the offender fled the scene without rendering any assistance, and he subsequently sent messages indicating concern for covering his tracks rather than for the victim's welfare. The court treated the standard non-parole period of four years as a guidepost, as required by Muldrock v R (2011) 244 CLR 120, and assessed the objective seriousness of the offending accordingly.

On the question of remorse, the court found the assessment complicated by the offender's initial denials to police and his continued disputation of certain facts at the sentencing hearing. The text messages sent in the hours after the incident, including one stating he was "sorting out the Calais" to ensure the matter did not "come back on us", weighed against a finding of genuine early remorse. The court nonetheless gave the offender credit for his guilty plea and his mental health history.

The offender's mental health issues and the fact that this was his first offence of violence were treated as mitigating factors warranting favourable consideration. Because of those psychiatric matters, the court found special circumstances justifying a longer-than-usual ratio between the non-parole period and the head sentence. A head sentence of two years or less was not appropriate on the facts, which meant an ICO was unavailable as a sentencing option.

A 25% discount was applied to the sentence to reflect the utilitarian value of the early guilty plea, consistent with R v Robert Borkowski [2009] NSWCCA 102.

Orders Made

  • The offender was convicted of recklessly causing grievous bodily harm.
  • The Form 1 offences (failure to stop and assist after vehicle impact causing grievous bodily harm; failure to provide driver details) were taken into account.
  • A 25% discount was applied for the guilty plea.
  • The offender was sentenced to 3 years and 3 months' imprisonment, commencing 28 July 2021 and concluding 27 October 2024.
  • A non-parole period of 16 months was set, commencing 28 July 2021 and concluding 27 November 2022.

Key Takeaways

  • The District Court confirmed that the four-year standard non-parole period for reckless GBH under the Crimes (Sentencing Procedure) Act 1999 operates as a guidepost rather than a fixed benchmark, consistent with Muldrock v R, and must be weighed alongside all objective and subjective factors.

  • Where an offender makes early denials to police, sends messages focused on avoiding detection, and continues to dispute material facts at sentence, the court may treat the assessment of genuine remorse as significantly qualified, even where a guilty plea has been entered.

  • A head sentence exceeding two years forecloses the option of an Intensive Correction Order, and the court here found the objective seriousness of the offending plainly warranted imprisonment.

  • Special circumstances may be found where an offender has significant psychiatric history and this is the first time they are serving a custodial sentence, permitting a non-parole period proportionally shorter than the standard ratio.

  • Form 1 offences, including failure to stop and assist after causing GBH (a serious offence carrying up to seven years), were taken into account as part of the overall sentencing exercise and contributed to the court's assessment of the offender's total criminality.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35 (recklessly causing grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 54A

Cases
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- R v Robert Borkowski [2009] NSWCCA 102
- The Queen v Olbrich (1999) 199 CLR 270
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- R v Altaf Thawer [2009] NSWCCA 158
- Gillon v Regina [2009] NSWCCA 277
- Campbell-Stephen v Regina [2010] NSWCCA 204
- Weir v Regina [2011] NSWCCA 123
- O'Connor v Regina [2011] NSWCCA 161
- Ross v R [2012] NSWCCA 161
- Brown v R [2014] NSWCCA 215
- Daniels v R [2016] NSWCCA 35