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District Court 2 December 2021

R v Anderson

[2021] NSWDC 844

Assault & violence
CRIMINAL SENTENCE AFTER TRIAL RECKLESSLY WOUND CONVICTED OF ALTERNATIVE COUNT BY JURY SERIOUSNESS OF OFFENCE SUBJECTIVE MATTERS

Citation: R v Anderson [2021] NSWDC 844
Court: District Court of New South Wales
Date: 2 December 2021
Judge: King SC DCJ

Background

The offender was convicted by jury of recklessly wounding the complainant, contrary to s 35(4) of the Crimes Act 1900, following an altercation in Port Macquarie in the early hours of 14 March 2020. The jury found him not guilty of the primary count of wounding with intent to cause grievous bodily harm under s 33(1)(a). He appeared before the District Court for sentence on the alternative count.

The incident involved two groups of people, both affected by alcohol, who encountered each other on a main street late at night. An exchange arose around Indigenous identity and group origins, during which the complainant became verbally and physically provocative. The offender's pregnant partner stepped between the two men and was accidentally struck by a blow the complainant had aimed at the offender.

Following that blow, the offender picked up part of a broken glass bottle and, while the complainant was on the ground having fallen over, rushed at him and inflicted two lacerations to his head and face. The complainant was unarmed and on the ground at the time of the attack.

  • Whether the offender was acting in self-defence or defence of another at the time of the wounding, or whether the conduct was motivated by revenge
  • What weight to give the standard non-parole period, given the offender had pleaded not guilty to the alternative count at trial despite offering to plead guilty to it pre-committal
  • What discount, if any, applied for the utility of the pre-committal offer to plead guilty
  • How to apply the principles from R v Fernando and Bugmy v The Queen concerning the offender's Aboriginal background and its relevance to moral culpability and sentencing
  • What sentence was appropriate in all the circumstances, including the offender's subjective features

Decision

The court rejected the self-defence claim, finding beyond reasonable doubt that the offender was acting out of revenge for the blow struck to his partner, rather than in genuine defence of himself or another. The court found the complainant had been backing away and had fallen to the ground before the offender rushed at him with the broken bottle. That sequence was inconsistent with a defensive response and consistent with a retaliatory one.

On the question of the guideline, the court held that the standard non-parole period of three years remained relevant, notwithstanding the pre-committal guilty plea offer. Because the offender had pleaded not guilty to the alternative count at trial, the standard non-parole period retained its role as a sentencing guidepost. The offender was, however, entitled to a 25 per cent discount for the utility of his pre-committal offer to plead guilty to the alternative count, which the prosecution had declined.

The court considered the offender's Aboriginal background and difficult upbringing, including exposure to violence and alcohol in childhood and a history of personal deprivation, applying the principles in Fernando and Bugmy. These factors were treated as bearing on moral culpability and as informing appropriate rehabilitation-focused conditions, but they did not displace the objective seriousness of the offending.

The court identified significant objective seriousness: the weapon was improvised but capable of causing serious injury, the complainant was on the ground and unarmed, and at least two blows were struck. Prospects of rehabilitation were assessed as reasonable, and the court structured the sentence to reflect both punishment and the offender's capacity to address underlying issues around alcohol use and anger.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period expiring 28 February 2023 and a total sentence expiring 29 May 2024
  • The offender was directed to surrender to Casino Police Station by 10am the following morning

Key Takeaways

  • The District Court found that an offender acting in revenge for a blow struck to a companion is not acting in self-defence, even where self-defence was raised at trial, provided the court is satisfied beyond reasonable doubt that the response was retaliatory rather than defensive.
  • A pre-committal offer to plead guilty to an alternative count entitles the offender to a 25 per cent utilitarian discount, even where the prosecution declined that offer and the offender subsequently pleaded not guilty to the alternative count at trial.
  • Where a guilty plea offer is declined and the offender contests the charge at trial, the standard non-parole period remains a relevant sentencing guideline, regardless of the earlier offer.
  • Under the principles in R v Fernando and Bugmy v The Queen, an offender's Aboriginal background and childhood exposure to deprivation, violence, and alcohol are mitigating factors that bear on moral culpability, though they do not automatically reduce a sentence where the objective gravity of the offence is significant.
  • Objective seriousness is assessed to be elevated where an improvised weapon is used against a victim who is unarmed and on the ground, and where at least two deliberate blows are struck.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(a), 35(4)

Cases
- Bugmy v The Queen [2013] HCA 37
- R v Fernando (1992) 76 A Crim R 58
- R v Lester [2020] NSWDC 642