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District Court 7 December 2022

R v Selman

[2022] NSWDC 758

Assault & violenceFirearms & weapons

Citation: R v Selman [2022] NSWDC 758
Court: District Court of New South Wales
Date: 7 December 2022
Judge(s): Bennett SC DCJ

Background

A 20-year-old offender was sentenced following his guilty plea to reckless wounding, arising from a series of three altercations outside and inside a shopping centre at Bass Hill on 18 July 2021. The sequence began when the offender crossed a pedestrian crossing in front of a vehicle driven by a 36-year-old man he did not know, swore at him, and then struck him when the victim alighted and asked what the problem was.

After that first physical altercation was broken up, closed-circuit television footage captured the offender inside a nearby pizza shop producing a flick-knife from his pocket and extending and retracting the blade. When the victim later re-entered the shopping centre, the offender pursued him and, in a third confrontation, used the knife to wound him.

A separate Form 1 offence was also before the court: two days after the wounding, the offender was a passenger in a vehicle and refused to disclose identifying information about the driver or other passengers when required to do so by police, contrary to the Law Enforcement (Powers and Responsibilities) Act 2002.

  • What sentence was appropriate for the offence of reckless wounding under s 35(4) of the Crimes Act 1900, which carries a maximum of seven years imprisonment and a standard non-parole period of three years?
  • Whether a finding of special circumstances justified a non-parole period shorter than the statutory benchmark.
  • Whether an Intensive Correction Order (ICO), which allows a sentence to be served in the community, was a sentencing option appropriate to the offender's circumstances.
  • What weight should be given to the early guilty plea, pre-sentence custody, bail conditions, and the Form 1 offence in fixing the final sentence.

Decision

Bennett SC DCJ convicted the offender of reckless wounding and determined that full-time custody was required. The court found the conduct too serious to permit an ICO, a form of community-based imprisonment. Even accounting for the early guilty plea, the offender's youth, personal circumstances, and other mitigating factors, the judge could not conclude that any sentence below two years was appropriate.

A discount of 25 per cent was applied to reflect the utilitarian value of the early guilty plea entered in the Local Court, consistent with s 25D of the Crimes (Sentencing Procedure) Act 1999. The plea was also treated as evidence of contrition and remorse. The court credited the offender with four days of pre-sentence custody and gave some weight to the modest constraints imposed by bail conditions, including reporting requirements and an overnight curfew that applied for part of the period on bail.

The court found special circumstances, justifying a non-parole period that was proportionally shorter than the usual statutory ratio. The Form 1 offence was taken into account and produced a modest upward adjustment to reflect personal deterrence, denunciation, and the totality of the offender's misconduct, though its impact was limited given it arose from the same general episode and would ordinarily be dealt with summarily.

Orders Made

  • The offender was convicted of reckless wounding contrary to s 35(4) of the Crimes Act 1900.
  • Non-parole period of 1 year and 3 months, commencing 4 December 2022 and expiring 3 March 2024 (date of eligibility for parole).
  • Further period of imprisonment of 1 year and 4 months, commencing at the expiration of the non-parole period and expiring 3 July 2025.
  • Aggregate sentence: 2 years and 7 months imprisonment.
  • Form 1 offence (failure to disclose identity to police under LEPRA) certified as taken into account.

Key Takeaways

  • Reckless wounding under s 35(4) of the Crimes Act 1900 requires an intentional act of wounding coupled with recklessness as to causing actual bodily harm, meaning the offender must have adverted to the risk of that outcome before proceeding.
  • An Intensive Correction Order was unavailable on these facts; the District Court held that the seriousness of a premeditated knife attack in a public place placed the offending beyond the range where a community-based sentence could adequately address the sentencing objectives of denunciation, deterrence, and retribution.
  • A finding of special circumstances can reduce the ratio of the non-parole period to the total sentence below the standard proportion, producing a longer parole period to support rehabilitation.
  • Form 1 offences, though they increase the sentence for the principal offence, are calibrated against the maximum penalty of the Form 1 offence itself; where that offence would ordinarily be dealt with summarily, the resulting uplift is modest.
  • Bail conditions imposing reporting requirements and overnight curfews represent a constraint on liberty that a sentencing court may take into account, even where that constraint is described as modest.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(4) (reckless wounding)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, Part 4 Division 1A
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 16(2)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 (guideline judgment on Form 1 offences)
- Bugmy v The Queen (2013) 249 CLR
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Imbornone v R [2017] NSWCCA 144
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120
- Munda v State of Western Australia [2013] HCA 38
- R v Harrison [2001] NSWCCA 79
- R v Osenkowski [1982] A Crim R 394
- R v Pullen [2018] NSWCCA 264
- Tepania v R [2018] NSWCCA 247