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District Court 9 June 2022

R v Walsh; R v Dryer

[2022] NSWDC 363

Assault & violenceTheft & property
CRIME SENTENCE ASSAULT OFFENCES PROPERTY OFFENCES OFFENDERS ASSAULTED THE VICTIM

Citation: R v Walsh; R v Dryer [2022] NSWDC 363
Court: District Court of New South Wales
Date: 9 June 2022
Judge: Neilson DCJ

Background

The two offenders, a woman and her partner, drove from the Hunter Valley to the Illawarra coast late at night in March 2021 and attended the caravan park where the woman's former partner resided. The visit was entirely unannounced. The woman believed her former partner had been remotely accessing her Spotify account and changing her music, and she confronted him about this.

A physical altercation broke out. The male offender wrestled with the victim, and the fight moved outside the caravan. The male offender struck the victim on the head with a piece of wood; the female offender struck the victim on the head two or three times with a chilli sauce bottle and also inflicted a chest wound. The victim sustained three scalp lacerations and required hospital treatment, though the court noted he appeared fully coherent during a police interview conducted in the emergency department and there was no evidence of lasting injury.

After the main altercation, the female offender followed the victim toward a neighbouring caravan while carrying a knife, before being disarmed. She then drove her vehicle back through the caravan park's boom gate, damaging it. Both offenders were arrested at the scene.

  • What sentences were appropriate for two co-offenders who pleaded guilty to recklessly wounding a person in company, contrary to s 35(1)(b) of the Crimes Act 1900 (NSW), an offence carrying a maximum of ten years imprisonment and a standard non-parole period of four years?
  • Whether an Intensive Correction Order (ICO), served in the community rather than in full-time custody, was an appropriate sentencing outcome for each offender.
  • What sentence was appropriate for the female offender's additional charge of reckless damage to property (the boom gate), contrary to s 195(1)(a) of the Crimes Act 1900 (NSW)?
  • Whether a compensation order for the property damage was warranted.

Decision

The court accepted that the offence, while serious, was at the lower end of objective seriousness for reckless wounding in company. The victim's injuries, though requiring hospital treatment, did not result in brain damage or apparent lasting harm. His Honour noted that the standard non-parole period of four years would apply to a mid-range offence decided at trial, providing a benchmark against which the actual sentences were calibrated downward in light of the pleas and other relevant factors.

For the female offender, the court took into account her prior history as a victim of domestic violence in the relationship with the victim (while expressly noting this provided no justification for the assault), her lack of relevant criminal history, her stable employment, and her guilty plea. Her additional charge of property damage to the boom gate was addressed as part of an aggregate sentence. A compensation order of $1,537.52 was also made in favour of the caravan park operator.

For the male offender, the court acknowledged his youth, his employment in a mining traineeship, and his supportive family circumstances. A prior community corrections order was treated as an aggravating factor, but no further action was directed in relation to that breach, given it had been taken into account in the sentence.

Both offenders were sentenced to terms of imprisonment to be served by way of Intensive Correction Order (ICO) in the community. An ICO is a form of imprisonment served outside a correctional facility, subject to strict supervision conditions. The court was satisfied that neither offender posed an unacceptable risk to community safety and that an ICO would better serve both their rehabilitation and the broader interests of the state than full-time custody.

Orders Made

Tabitha Walsh (First Offender):
- Convicted on both charges (reckless wounding in company; reckless damage to property)
- Sentenced to an aggregate term of imprisonment of 1 year and 11 months, to be served by way of Intensive Correction Order
- Conditions: no further offending; supervision by a community corrections officer; 350 hours of community service work; participation in rehabilitation or treatment programs as directed; report to Muswellbrook Community Corrections within 7 days
- Compensation order of $1,537.52 payable to the registrar within 28 days, to be forwarded to the manager of Surfrider Caravan Park

Alex Peter Dryer (Second Offender):
- Convicted of reckless wounding in company
- Sentenced to imprisonment of 1 year and 10 months, to be served by way of Intensive Correction Order
- Conditions: no further offending; supervision by a community corrections officer; 350 hours of community service work; participation in rehabilitation or treatment programs as directed; report to Muswellbrook Community Corrections within 7 days
- Prior community corrections order breach taken into account as an aggravating factor; no further action directed in respect of that breach

Key Takeaways

  • The District Court confirmed that the standard non-parole period of four years for reckless wounding in company operates as a statutory benchmark, not a mandatory minimum, and sentences below that range are available where the offence falls below the mid-range of objective seriousness.
  • An Intensive Correction Order remains available for serious assault offences where the court is satisfied community safety is not jeopardised and the offender's rehabilitation prospects support a community-based sentence.
  • A prior domestic violence dynamic between an offender and a victim may be acknowledged as context for the offending, but the court was explicit that it affords no mitigation for, or justification of, the assault itself.
  • Where a reckless damage to property charge arises from the same criminal episode, it can be dealt with by way of aggregate sentence alongside a principal offence, with a compensation order made in favour of the property owner.
  • The District Court treated a breach of an existing community corrections order as an aggravating factor in sentencing, while exercising its discretion to take no further action on that breach once it had been reflected in the sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(1)(b) (reckless wounding in company) and s 195(1)(a) (reckless damage to property)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (standard non-parole period provisions)

Cases cited: None cited in the judgment.