Citation: R v Nasr [2023] NSWDC 435
Court: District Court of New South Wales
Date: 12 October 2023
Judge: Scotting DCJ
Background
The offender, a married concrete pump operator with four children, pleaded guilty in the Local Court to reckless wounding in a domestic violence context under s 35(4) of the Crimes Act 1900. The offence occurred on 1 March 2022 at the offender's Bankstown home and involved his brother-in-law, who had come to the house to assist the offender's wife with the children.
After both men consumed alcohol during the day, the situation escalated when the offender returned home and drove aggressively into the driveway while two of his children were still in his wife's car. The victim removed the offender from the driver's seat, a fight began, and the offender went inside, retrieved a large stainless steel knife approximately 30 centimetres in length, and chased the victim into the street. He slashed the victim's left elbow and stabbed him in the abdomen three times, causing a 3-10 centimetre wound to the victim's left flank. Paramedics and hospital security guards who happened to be nearby witnessed the attack. The victim was hospitalised for four days but made a full recovery.
The matter came before the District Court for sentencing after the plea was entered in the Local Court.
Legal Issues
- What was the appropriate sentence for the offence of reckless wounding (DV), having regard to the objective seriousness of the offending and the applicable aggravating and mitigating circumstances?
- Whether the sentence should be served by way of full-time custody or an Intensive Corrections Order (ICO), given the offender's prospects of rehabilitation and the interests of community safety.
- How to apply the 25% guilty plea discount and account for pre-sentence custody, including time spent in custody bail refused and time in residential drug rehabilitation.
Decision
Objective seriousness and aggravating factors: The court found the offence involved some limited planning, as the offender deliberately went inside his home to retrieve the knife before returning to continue the confrontation (at [52]). The use of a knife was treated as a significant aggravating feature: the Court of Criminal Appeal has frequently observed that knife use specially aggravates an offence and increases the danger and penalty attracted (at [60]). The offence was also committed in the presence of the offender's children, who were scared, screaming and crying at the time (at [61]). General deterrence was identified as an important sentencing consideration, particularly given the weapon used (at [58]).
Mitigating factors and moral culpability: The court accepted that the offender had a deprived upbringing involving exposure to domestic violence, family breakdown, sexual abuse and disrupted schooling, which reduced his moral culpability to some extent under the principles in Bugmy v R (at [56]). The victim had also provoked the offender to some degree, and there was some role played by the offender's significant alcohol problem (at [53]). While the court had reservations about accepting formal diagnoses of PTSD and Major Depressive Disorder, it accepted that the offender was under genuine financial and psychological pressure and had turned to alcohol to cope (at [47]).
Rehabilitation and prospects: The offender's completion of a six-month Residential Drug Rehabilitation Program while on remand was given considerable weight. His engagement in that program was described as excellent, he was appointed Senior Resident, and all random drug tests returned negative results (at [43]). He was assessed at medium-low risk of re-offending, had expressed genuine remorse, and had remained abstinent since the offending (at [29], [62], [63]).
Sentence: After applying the 25% discount for the guilty plea, the court arrived at a term of two years' imprisonment (at [68]). That term was further reduced by six months to account for 108 days spent in custody bail refused and time spent in residential rehabilitation, as an ICO cannot be backdated (at [71]-[72]). The court imposed a final sentence of one year and six months, to be served by way of an ICO rather than full-time custody. The court was satisfied that community safety would be best served by allowing the offender to continue his rehabilitation in the community (at [70]).
Orders Made
- The offender is convicted of reckless wounding (DV).
- A term of imprisonment of 1 year and 6 months is imposed, to be served by way of an Intensive Corrections Order commencing 12 October 2023 and expiring 11 April 2025.
- Standard ICO conditions apply: the offender must not commit any offence and must submit to supervision by a Community Corrections Officer.
- Additional conditions: the offender must abstain from all restricted or prohibited drugs (except those prescribed by a medical practitioner) and must participate in and receive mental health treatment as directed by Community Corrections.
- The offender must report to the Bankstown Community Corrections Office on or before 4pm on 19 October 2023.
Key Takeaways
- The District Court confirmed that any use of a knife in an assault is a substantial aggravating factor that calls for a significant sentence to reflect both general and specific deterrence, even where the offender has strong mitigating circumstances (at [58], [60]).
- A deprived background involving domestic violence exposure, family breakdown, and sexual abuse reduced the offender's moral culpability under the Bugmy principle, even though the court applied that principle cautiously alongside the seriousness of the conduct (at [56]).
- Successful completion of residential drug rehabilitation while on remand, combined with demonstrated abstinence and a low reassessed risk of re-offending, supported a finding of good rehabilitation prospects sufficient to justify an ICO over full-time custody (at [62], [70]).
- Where an ICO cannot be backdated, the sentencing court reduced the head term of imprisonment to give credit for both pre-sentence custody and time spent in residential rehabilitation as part of the bail conditions (at [71]-[72]).
- Under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999, a guilty plea entered in the Local Court attracted a 25% discount on the sentence imposed in the District Court (at [4]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
Cases
- Bugmy v R (2013) 249 CLR 571
- R v Dickinson [2004] NSWCCA 457
- R v Hampton [1999] NSWCCA 341
- R v Olbrich (1999) 199 CLR 270
- R v Watt (unreported 2 April 1997, NSWCCA)