Citation: R v Assi-Leplaw [2022] NSWDC 108
Court: District Court of New South Wales
Date: 11 April 2022
Judge: Abadee DCJ
Background
The offender pleaded guilty to recklessly wounding a victim in company on Christmas Day 2020 at an apartment complex in Kirrawee, contrary to s 35(3) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 10 years' imprisonment and a statutory non-parole period of four years. The offender also asked the court to take into account a possession of psilocybin (hallucinogenic mushrooms) offence on a Form 1, arising from a police search of his residence the following day.
The facts were agreed. In brief, the victim had the offender's friend pinned against the foyer window of the apartment complex when the offender approached the victim from behind and stabbed him once with a knife. The victim sustained a 2 cm chest wound and a small fracture of the ninth costal cartridge, requiring hospitalisation for two days. CCTV footage confirmed the offender's involvement was brief and isolated: there was no further physical contact after the single strike.
At the time of the offending, the offender had been using methamphetamine and Xanax for approximately six months and had diagnoses of depression, anxiety, and post-traumatic stress disorder (PTSD). He had been assaulted and stabbed himself just three months before this incident. He was also serving a sentence for an earlier, unrelated offence when these proceedings were finalised.
Legal Issues
- Whether the offender's mental health and substance use disorders reduced his moral culpability, engaging the principles in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1.
- Where the offending sat on the range of objective seriousness for reckless wounding in company.
- Whether a partial de facto claim of defence of another could moderate the assessment of culpability, even though it did not constitute a complete defence.
- What discount applied for the guilty plea, and how the sentence should run relative to the existing sentence for the earlier offence.
- Whether special circumstances existed justifying a longer than usual parole period.
Decision
Abadee DCJ accepted that the offending fell below the mid-range of objective seriousness for this type of offence. The single strike, the absence of any planning, the fact that the victim was at the time attacking the offender's friend, and the offender's limited overall involvement in the altercation all moderated the gravity of the conduct. The injury, while not insignificant, resulted in a two-day hospitalisation rather than life-threatening harm.
The court accepted that the offender's moral culpability was further reduced by his documented mental health conditions and longstanding substance use disorder. Drawing on De La Rosa, his Honour found a meaningful causal connection between the offender's PTSD (substantially rooted in pre-adolescent exposure to violence and the stabbing three months prior) and his impaired capacity to exercise rational judgment on the night. The Crown conceded this connection, and the court found it moderated the weight otherwise applicable to general and specific deterrence, and to retribution.
The court also accepted that part of the offender's motive was to defend his friend, even though that partial justification could not sustain a complete self-defence claim. That motive, combined with the mental health and substance use factors, collectively reduced his culpability. The 25% guilty plea discount was applied, and special circumstances were found to exist, justifying a non-parole period shorter than the standard ratio, to allow extended supervised rehabilitation in the community.
On the question of concurrency, the court declined to make the sentence wholly or substantially concurrent with the earlier sentence. The two offences occurred on different dates, involved different victims, and had very different elements and motives. A modest allowance for concurrency was made by backdating the sentence to 1 July 2021.
Orders Made
- The offender was convicted of recklessly wounding the victim in company and being reckless as to causing actual bodily harm.
- Sentenced to a term of imprisonment of 1 year, 10 months and 14 days, commencing 1 July 2021 and expiring 14 May 2023.
- Non-parole period of 1 year, 1 month and 15 days, expiring 15 August 2022.
- The Form 1 drug possession offence was taken into account on the principal offence.
Key Takeaways
- A connection between a diagnosed mental disorder (including PTSD arising from prior victimisation) and the commission of an offence can reduce moral culpability and moderate the weight given to deterrence and retribution, consistent with the principles in DPP (Cth) v De La Rosa.
- Where an offender acts partly to defend a third party but uses excessive and unreasonable force, that partial justification can still modulate a culpability assessment even where a complete defence is unavailable.
- The District Court confirmed that making a sentence wholly concurrent with an earlier sentence is inappropriate where the two offences involved different dates, different victims, and distinct motivations, because full concurrency would fail to reflect the total criminality.
- Special circumstances justifying an extended parole period can be established where the offender has co-occurring mental health and substance use disorders that require sustained post-release treatment and supervision.
- Objective seriousness for reckless wounding in company is assessed by reference to the nature and extent of the injury, the circumstances of the attack, and the degree of planning involved, drawing on McCullough v R.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) s 35(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 55
- Drug Misuse and Trafficking Act 1985 (NSW) s 10(1)
Cases:
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- McCullough v R (2009) 194 A Crim R 439
- R v Tran [2005] NSWCCA 35
- R v Watt (unrep, 2 April 1997, NSWCCA)