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District Court 21 February 2022

R v Tsingolas

[2022] NSWDC 34

Assault & violence
CRIME RECKLESS WOUNDING SENTENCING R EDUCTION IN MORAL CULPABILITY THE BUGMY BAR BOOK.

Citation: R v Tsingolas [2022] NSWDC 34
Court: District Court of New South Wales
Date: 21 February 2022
Judge: Yehia SC DCJ

Background

The offender was convicted of reckless wounding contrary to s 35(4) of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of seven years' imprisonment and a standard non-parole period of three years. A related offence of failing to disclose the identity of a driver or passenger was also before the Court for sentencing.

The offence arose from a confrontation connected to an earlier dispute between the families of the offender and the victim. The victim, who believed the offender was in his street to intimidate him, followed the offender's car over several blocks. A physical altercation followed in which the offender wounded the victim. The offender's case was that he believed force was necessary for self-defence, but that his response was excessive. The Crown accepted that basis of plea.

The offender had originally faced trial in November 2020. That trial proceeded to the close of evidence and the Crown's closing address before the jury was discharged. A retrial was listed, but the offender pleaded guilty on a fresh indictment in June 2021, shortly before jury trials were again suspended during the COVID-19 pandemic.

  • What discount for the utilitarian value of the guilty plea was appropriate under Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW), given that an earlier trial had proceeded substantially before the jury was discharged?
  • Whether the offender's history of childhood deprivation and disadvantage, including childhood sexual abuse, reduced his moral culpability and, if so, to what extent.
  • Whether an Intensive Correction Order (ICO) was an available and appropriate sentence for an offence of reckless wounding in these circumstances.

Decision

Guilty plea discount. The Court determined that a 5% discount applied. The first trial had not been vacated but had proceeded almost to completion before the jury was discharged. Accordingly, s 25D(2)(b) of the Crimes (Sentencing Procedure) Act did not apply. The prosecution had prepared for trial, called witnesses, and delivered its closing address. The Court also noted, as a separate matter to the quantified discount, the offender's willingness to facilitate the administration of justice during the pandemic, and the fact that the plea spared witnesses from giving evidence a second time.

Moral culpability and childhood disadvantage. The Court gave weight to evidence of the offender's significant childhood deprivation and disadvantage, including childhood sexual abuse. Drawing on the Bugmy Bar Book and the principles in Bugmy v The Queen (2013) 249 CLR 571, the Court found that these circumstances reduced the offender's moral culpability. The Court treated the research materials referenced in the Bugmy Bar Book as providing context for understanding the long-term effects of childhood trauma, including findings from the Royal Commission into Institutional Responses to Child Sexual Abuse.

Availability and appropriateness of an ICO. The Court found that an ICO was available for the offence and was appropriate in the particular circumstances of this case. The Court reasoned that a sentence turning an offender toward further offending impairs community safety, whereas a sentence promoting rehabilitation enhances it, citing R v Blackman & Walters [2001] NSWCCA 121 and R v Pullen [2018] NSWCCA 264. Taking into account the reduced moral culpability, the circumstances of the offending (including the excessive self-defence basis), the offender's genuine remorse, and the purposes of sentencing, the Court determined that an ICO was a proportionate response despite the serious nature of the wounding.

The Court assessed the appropriate term of imprisonment at two years. After crediting four months and three days of pre-sentence custody, the term to be served by way of ICO was one year, seven months and 27 days.

Orders Made

  • Imprisonment of 1 year, 7 months and 27 days, to be served by way of an Intensive Correction Order, commencing on the date of sentence.
  • Standard ICO conditions: no further offences; appear before the court when called upon; obey all reasonable directions of Community Corrections.
  • Additional ICO conditions:
  • 150 hours of community service work
  • Psychological counselling and treatment with the nominated psychologist (or delegate) for as long as deemed necessary
  • Anger management counselling and treatment as directed by Community Corrections
  • For the offence of failing to disclose the identity of a driver or passenger: convicted and fined $500.

Key Takeaways

  • Where a jury trial proceeds substantially to completion before the jury is discharged, and the offender later pleads guilty at a relisted trial, the Court held that only a 5% utilitarian discount applies under s 25D(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The trial was not "vacated" within the meaning of the statutory definition of "first day of trial."

  • Under the principles established in Bugmy v The Queen, evidence of childhood deprivation, disadvantage, and abuse can reduce an offender's moral culpability at sentencing regardless of the time elapsed since those experiences. The District Court's reasoning demonstrates how the Bugmy Bar Book may be used to place peer-reviewed research and Royal Commission findings before the sentencing court.

  • An ICO remains available for offences of reckless wounding in appropriate circumstances. The Court confirmed that the purposes of community protection and rehabilitation are interconnected, and a sentence that supports rehabilitation can serve community safety more effectively than a full-time custodial term.

  • Genuine remorse, demonstrated through sworn evidence and accepted by the court, remained a relevant mitigating factor in the overall sentencing exercise.

  • Pre-sentence custody must be credited against the term imposed by way of ICO, in accordance with s 71 of the Crimes (Sentencing Procedure) Act 1999 (NSW), since an ICO commences on the day it is made.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25A(2), 25C(2), 25D(2), 66, 71

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- R v Blackman & Walters [2001] NSWCCA 121
- R v Pullen [2018] NSWCCA 264
- Fangaloka [2019] NSWCCA 173
- Kentwell v R (No 2) [2015] NSWCCA
- Mandranis v R [2021] NSWCCA 97
- Mourtada v R [2021] NSWCCA 211
- Perkins v R [2018] NSWCCA 62
- R v Gray [2018] NSWCCA 241
- R v Zamagias [2002] NSWCCA 17
- The Queen v Osenkowski (1982) 30 SASR 212

Other Materials
- Public Defenders, The Bugmy Bar Book Project (November 2019), "Childhood Sexual Abuse" chapter
- Judy Cashmore and Rita Shackel, 'The Long-Term Effects of Child Sexual Abuse' (CFCA Paper No. 11, Australian Institute of Family Studies, January 2013)
- Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (December 2017), vol 3