R v Shafaq [2022] NSWDC 639

Citation: R v Shafaq [2022] NSWDC 639
Court: District Court of NSW
Date: 3 March 2022
Judge: Tupman DCJ

Background

The offender pleaded guilty in the Local Court to one charge of wounding the victim with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). The offence was committed on 27 February 2021 in Sydney and carries a maximum penalty of 25 years imprisonment, with a standard non-parole period of 7 years.

The offender had been in an on-and-off relationship with a woman (referred to as Ms Song) for approximately two years before breaking up in September 2020. The pair remained in contact. On the night in question, the offender encountered Ms Song with the victim, her new partner, at a hotel. Consumed by jealousy, the offender attempted to buy a knife at a nearby tobacco shop, could not afford one, and armed himself with a broken bottle instead.

The offender waited for approximately five hours in an alcove near the entrance to Ms Song's hotel room before forcing entry in the early hours of the morning. He confronted the couple and struck the victim twice with the broken bottle, causing lacerations to the head, neck, and ribs. The offender was arrested later that day and had remained in custody since.

Legal Issues

What was the appropriate sentence for the offence of wounding with intent to cause grievous bodily harm under s 33(1)(a)?
How should the objective seriousness of the offending be assessed, including the relevance of planning, the nature of the weapon, and the motive of sexual jealousy?
What weight should be given to the offender's subjective circumstances, including his background, drug use at the time of the offence, remorse, and rehabilitation prospects?
Whether special circumstances existed to justify departing from the standard ratio between the non-parole period and the head sentence?

Decision

Objective Seriousness

The court assessed the offence as falling around the middle of the range, or perhaps slightly below, in terms of objective seriousness (at [21]). Although the weapon was a broken bottle rather than a knife, the court held it was of equal danger and that its makeshift nature did not reduce the objective gravity of the offending (at [17]). The court also declined to treat this as a conventional "glassing" incident, distinguishing it from spontaneous attacks in licensed premises by noting that the offender had planned the assault from approximately 12.15am and waited nearly five hours before forcing entry (at [18]).

The motive of sexual jealousy elevated the objective seriousness and increased the weight to be given to general deterrence (at [20]). The victim's physical injuries, while serious, appeared likely to heal without ongoing physical consequences, though any psychological impact on the victim was unknown (at [15]).

Guilty Plea Discount

The early plea of guilty, entered in the Local Court, entitled the offender to a 25% discount on sentence under the early appropriate guilty plea scheme (at [3]). The court set a starting point of 6 years and reduced that by 18 months to arrive at a head sentence of 4 years and 6 months (at [34]).

Subjective Circumstances

The offender's prior record consisted largely of serious driving offences and a single affray from 2010, and the court found it did not amount to an aggravating factor, but also did not attract the leniency reserved for first offenders (at [29]-[30]). The offender was under the influence of cocaine at the time and demonstrated some insight by acknowledging a connection between his drug use and the ferocity of his attack, though this did not excuse his conduct (at [27]-[28]). Evidence of remorse was present but not strong (at [31]-[32]). The court found rehabilitation prospects were relatively good, supported by family ties, some vocational skills, and apparent cessation of drug use in custody (at [31]).

Special Circumstances

The court found special circumstances existed, principally the offender's limited access to family visits due to COVID-19 restrictions and associated lockdowns in custody (at [36]). This justified a non-parole period of 2 years and 9 months, which is shorter than the proportion that would otherwise apply to the head sentence (at [37]).

Orders Made

The offender is convicted.
Sentenced to a total term of imprisonment of 4 years and 6 months, commencing 27 February 2021 and expiring 26 August 2025.
Non-parole period of 2 years and 9 months, commencing 27 February 2021 and expiring 26 November 2023.
Parole period of 21 months, commencing 27 November 2023 and expiring 26 August 2025.

Key Takeaways

A broken bottle used deliberately as a substitute for a knife is treated as equivalent in danger to a knife; its improvised nature does not diminish the objective seriousness of the offending (at [17]).
The District Court drew a clear distinction between "glassing" in the conventional sense (a spontaneous, reckless attack near licensed premises) and a premeditated assault with a broken bottle involving specific intent to cause grievous bodily harm, declining to use glassing authorities as sentencing benchmarks (at [18]).
Sexual jealousy as a motive for violence is a factor that elevates objective seriousness and reinforces the need for general deterrence, particularly where the offending resembles domestic-type violence (at [20]).
Drug intoxication at the time of an offence does not reduce moral culpability or operate as a mitigating factor, but may provide context for otherwise out-of-character conduct and, where an offender demonstrates genuine insight into the connection between drug use and the offending, that insight can be relevant to assessing rehabilitation prospects (at [27]-[28]).
Hardship experienced in custody during the COVID-19 pandemic, including restricted family visits and lockdowns, was accepted as a special circumstance capable of justifying a reduced ratio between the non-parole period and the overall term of imprisonment (at [36]-[37]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) : s 33(1)(a).

Cases
- Not stated