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District Court 10 November 2021

R v Stubbings

[2021] NSWDC 715

Assault & violenceTraffic & driving

Citation: R v Stubbings [2021] NSWDC 715
Court: District Court of New South Wales
Date: 10 November 2021
Judge: Bennett SC DCJ

Background

The offender and the victim lived in the same street in Bidwill and had known each other for several years through mutual connections. A dispute arose over a vehicle the offender had stored on his property. When the victim attended the offender's home and caused damage to his car and house, the offender later responded by driving his vehicle at her as she walked along a footpath.

On 3 February 2019, the offender reversed out of his driveway at speed and drove erratically toward the victim, who was walking on the footpath on Luxford Road. The vehicle struck her, causing grievous bodily harm. The use of the car as a weapon formed the core of the most serious charge.

The offender pleaded guilty upon arraignment in the District Court to causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900. He also pleaded guilty to a related charge of driving in a manner dangerous to the public, contrary to s 117(2) of the Road Transport Act 2013.

  • What guilty plea discount applied given the offender had been found unfit for trial and was later found fit, and only then entered a guilty plea?
  • What was the appropriate head sentence and non-parole period for the principal offence of causing grievous bodily harm with intent, carrying a maximum of 25 years and a standard non-parole period of 7 years?
  • How should the offender's mental health history affect the weight given to general and specific deterrence in sentencing?
  • What penalty was appropriate for the related dangerous driving offence, and what disqualification period applied?

Decision

The District Court addressed the guilty plea discount under s 25D(5) of the Crimes (Sentencing Procedure) Act 1999, which specifically governs offenders found unfit for trial and later found fit. The Mental Health Review Tribunal found the offender fit to be tried on 8 April 2021, but he did not enter his guilty plea until 7 October 2021. The Court found this delay meant the maximum 25% discount was unavailable. Because the plea was entered at least 14 days before trial and the offender had indicated an intention to plead guilty before the fitness determination, a 10% discount applied.

On the principal offence, the Court characterised the conduct as egregious. The offender used a motor vehicle as a weapon against a pedestrian, causing significant harm, and the victim had been walking away from his property at the time of the attack. The Court weighed the offender's mental health history as a factor that could ameliorate, to some extent, the weight given to general and specific deterrence, consistent with the principles in Bugmy v The Queen. However, the Court emphasised the need for punishment, denunciation, community protection, and recognition of the harm caused to the victim.

For the dangerous driving charge, the Court initially considered imposing a conviction without further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999. It ultimately declined to do so, concluding that the use of the vehicle in the attack, combined with the offender's offending history, warranted a term of imprisonment. That term was set at six months, wholly absorbed within the sentence for the principal offence.

Orders Made

  • Principal offence (causing grievous bodily harm with intent): Non-parole period of 6 years, commencing 3 February 2019 and expiring 2 February 2025; parole period of 3 years thereafter, expiring 2 February 2028. Total sentence: 9 years (reflecting a 10% guilty plea discount).
  • Related offence (driving in a manner dangerous): 6 months imprisonment, also commencing 3 February 2019, fully subsumed within the principal sentence.
  • Licence disqualification: 3-year disqualification for the dangerous driving offence, commencing upon the offender's release into the community.
  • Pre-sentence custody backdated to 3 February 2019.

Key Takeaways

  • Under s 25D(5) of the Crimes (Sentencing Procedure) Act 1999, an offender found fit for trial after being found unfit may access a 25% guilty plea discount only if they plead guilty as soon as practicable after the fitness finding; delay in entering the plea reduces the available discount to 10%.
  • Mental health history, consistent with Bugmy v The Queen, may reduce the weight given to general and specific deterrence, but does not eliminate it, particularly where the conduct is characterised as deliberate and egregious.
  • The District Court declined to employ s 10A of the Crimes (Sentencing Procedure) Act 1999 for the dangerous driving charge, finding that the nature of the conduct and the offender's history warranted actual imprisonment, even where that term was entirely subsumed.
  • A statutory three-year licence disqualification for a first offence of dangerous driving under s 117(2) of the Road Transport Act 2013 commences upon release from custody, not from the date of sentencing.
  • Where a victim impact statement is before the court but not read aloud, the court may still take it into account as part of the sentencing exercise once a conviction is formally recorded.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 25D
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), s 117(2)
- Crimes Act 1914 (Cth)

Cases:
- Bugmy v The Queen [2013] HCA 37
- Muldrock v The Queen [2011] HCA 39
- Markarian v R [2005] HCA 25
- Munda v State of Western Australia [2013] HCA 38
- Pollock v The Queen [2010] HCA 35
- AM v R [2012] NSWCCA 203
- Aslan v The Queen [2014] NSWCCA 114
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Imbornone v R [2017] NSWCCA 144
- Marrow v R [2015] NSWCCA 282
- Tepania v R [2018] NSWCCA 247
- The Queen v Alkanaan [2017] NSWCCA
- R v Qutami [2001] NSWCCA 353
- Johnson v The Queen (1976) 136 CLR 619
- Masciantonio v The Queen (1995) 183 CLR 58
- Moffa v The Queen (1997) 138 CLR 601
- R v Caine (1990) 48 A Crim R 464
- R v Muy Ky Chhay (1994) 72 A Crim R 1
- R v Thornton (No 2) [1996] 1 WLR 1174
- Roche v The Queen (1998) WAR 278