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District Court 19 May 2023

R v Laidlaw

[2023] NSWDC 163

Assault & violencePublic order & justice offences
CRIMINAL LAW SENTENCING WHETHER BUGMY PRINCIPLES ENGAGED OFFENDER SENTENCED IN CHILDREN’S COURT

Citation: R v Laidlaw [2023] NSWDC 163
Court: District Court of New South Wales
Date: 19 May 2023
Judge: Abadee DCJ

Background

The offender pleaded guilty in Gosford Local Court to one count of reckless wounding and one count of affray, and asked the court to take into account a related common assault on a Form 1. The offences arose from a single episode on 18 March 2022 at The Entrance, when the offender and a juvenile co-offender (BS) followed a group of five people who were walking to a nearby apartment after a night at a local hotel.

The confrontation escalated rapidly. The offender produced a kitchen knife of approximately 25 centimetres, and his co-offender produced a baton. When one victim fell to the ground, the offender slashed his forearm, causing a laceration requiring stitches, a soft tissue injury to his hand, and a period of inability to work.

The co-offender BS was dealt with separately in the Children's Court. The offender, who was an adult at the time of sentencing, had a diagnosed psychiatric condition (schizophrenia) and a background of childhood sexual abuse. Both matters were central to submissions on his moral culpability and the appropriate sentence.

  • How should the offender's schizophrenia and history of childhood sexual abuse bear on the assessment of his moral culpability, including whether the principles in Bugmy v R (2013) 249 CLR 571 were engaged?
  • Whether the offender's mental state was relevant to the objective seriousness of the offending or, instead, properly addressed as part of his subjective case.
  • How much weight to give prior offences for which the offender had been sentenced in the Children's Court.
  • Whether the parity principle applied, or had any material relevance, where the co-offender was sentenced in a different jurisdiction (the Children's Court).
  • Whether an aggregate sentence exceeding three years was warranted, and whether that precluded an Intensive Correction Order (ICO).
  • Whether special circumstances existed, justifying a reduction in the non-parole period below the statutory default.

Decision

Objective seriousness. Abadee DCJ treated reckless wounding under s 35(4) of the Crimes Act 1900 as a result-based offence, meaning the gravity of the conduct must be assessed by reference to the harm actually caused rather than the worst conceivable harm. The judge placed the reckless wounding in the low-to-mid range of objective seriousness. The affray was assessed as being in the lower range, though not at the lowest end, given the offender's use of a knife in a public place.

Mental impairment and moral culpability. The court declined to treat the offender's schizophrenia as a factor reducing the objective seriousness of the offending. Drawing on DS v R; DM v R (2022) 109 NSWLR 82 and Camilleri v R [2023] NSWCCA 106, Abadee DCJ held that mental state is properly assessed as part of the offender's subjective case and its bearing on moral culpability, rather than as a factor modifying objective seriousness. The Bugmy principles were found to be engaged, recognising the lasting relevance of profound disadvantage, including childhood sexual abuse, to an offender's moral culpability even after the passage of time.

Prior offences and parity. The court accepted that prior offences dealt with in the Children's Court carried limited weight in the sentencing exercise. On parity, Abadee DCJ noted that the parity principle was of questionable application where the co-offender was sentenced in an entirely different jurisdiction with its own distinct sentencing regime. The court found that even if parity were fully engaged, the sentence imposed would not generate a justifiable sense of grievance in the co-offender.

Totality and ICO. Although both offences formed part of a single episode, the court found they were sufficiently distinct in nature to warrant a degree of accumulation. The aggregate sentence was set above three years, which took the matter outside the statutory limit for an ICO under s 68(1) of the Crimes (Sentencing Procedure) Act 1999. Special circumstances were found, having regard to the offender's age, his first time in adult custody, and the challenges of effective rehabilitation in custody identified in the psychiatric evidence.

Orders Made

  • Aggregate term of imprisonment of 3 years and 2 months, commencing 18 May 2023 and expiring 17 July 2026.
  • Non-parole period of 1 year and 10 months, expiring 17 March 2025, after which the offender is eligible for release on parole.
  • Sentence backdated by one day to account for time spent in custody.
  • The psychiatric report of Dr Chew directed to be provided to those responsible for the offender's supervision.
  • Indicative sentences: sequence 2 (reckless wounding): 2 years and 6 months; sequence 7 (affray, including Form 1 common assault): 1 year and 9 months.

Key Takeaways

  • Under the approach confirmed in DS v R; DM v R and Camilleri, an offender's mental impairment goes to moral culpability within the subjective case rather than to the objective seriousness of the offending, even where there is no entirely rigid boundary between the two inquiries.
  • The Bugmy principles regarding the enduring relevance of profound disadvantage and childhood trauma to moral culpability were applied, with schizophrenia and a history of childhood sexual abuse treated as mitigating the offender's culpability rather than excusing the conduct.
  • The District Court confirmed that the parity principle has limited, if any, application where the co-offender was sentenced in the Children's Court under a distinct statutory regime with different objectives and constraints.
  • Prior offences for which an offender was sentenced in the Children's Court carry diminished weight in a subsequent adult sentencing exercise.
  • Where an offender is released on bail after a single day in custody and the aggregate sentence exceeds three years, the court cannot impose an ICO by adjusting the term to account for pre-sentence custody; the Mandranis adjustment mechanism was not available on these facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 33B, 35, 93C
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 68(1)
- Children (Criminal Proceedings) Act 1987 (NSW) s 33

Cases
- Bugmy v R (2013) 249 CLR 571
- DS v R; DM v R (2022) 109 NSWLR 82
- Camilleri v R [2023] NSWCCA 106
- Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97
- McCullough v R [2009] NSWCCA 94
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 463
- Apulu v The Queen [2022] NSWCCA 244
- Dungay v R [2020] NSWCCA 209
- Bridge v R [2020] NSWCCA 233
- Nasrallah v R [2021] NSWCCA 207
- Perkins v R [2018] NSWCCA 62
- Elturk v R (2014) 239 A Crim R 584; [2014] NSWCCA 61
- Belvie v R [2017] NSWCCA 36
- R v Engert (1996) 84 A Crim R 67
- R v Aala (unrep, 30/5/96, NSWCCA)
- R v Boney [2001] N