Citation: R v De Sousa and Lafferte [2023] NSWDC 613
Court: District Court of NSW
Date: 30 November 2023
Judge: Bourke SC DCJ
Background
Two offenders, a male and a female, appeared for sentencing in relation to an unprovoked street attack on a stranger that occurred on 30 December 2021 near a bus interchange in Bankstown. The offenders had met the victim that same day at a hotel, and the male offender had accompanied the victim on a failed drug purchase. When the drug dealer failed to return with the money paid, the male offender turned his anger on the victim.
The male offender punched the victim repeatedly, knocking him to the ground. The female offender then smashed a glass beer bottle she had been concealing under a cardigan, held the broken glass to the victim's temple, and caused a severe laceration to his left ear. Plastic surgeons were required to reattach much of the ear, though the victim ultimately made a full physical recovery apart from minor scarring.
The male offender faced two charges: affray and recklessly causing grievous bodily harm (GBH) in company. The female offender faced the GBH in company charge alone. Both pleaded guilty, though at different stages of proceedings.
Legal Issues
- What discount should apply for each offender's guilty plea, given they entered pleas at different stages?
- What was the objective seriousness of the offending for each offender?
- What subjective factors were relevant to each offender's sentence?
- Whether findings of special circumstances justified varying the standard ratio between non-parole period and head sentence.
- How totality principles applied to the male offender's two charges.
Decision
Guilty plea discounts. The female offender pleaded guilty at the first available opportunity and received a 25% discount on the utilitarian value of that plea. The male offender entered his plea at a later stage and received only a 5% discount. Both discounts were agreed between the parties.
Objective seriousness. The court assessed the GBH in company offence committed by the female offender as below the mid-range but above the low range of objective seriousness. Aggravating features included the use of a makeshift weapon, the premeditation involved in arming herself with the bottle before leaving the hotel, the victim's helpless position on the ground when the injury was inflicted, and the continuation of violence after the serious injury had already occurred. The male offender's role in the affray and the GBH offence was assessed as mid-range, reflecting his initiation of the attack and his continued punching and kicking even after the victim had sustained serious injury.
Subjective circumstances. Both offenders had relevant subjective matters considered in their favour, including their personal histories and psychological conditions. The female offender had been diagnosed with borderline personality disorder, and the male offender's psychological condition was also taken into account. Special circumstances were found to exist for both offenders, justifying a variation of the standard ratio between non-parole period and head sentence, primarily to ensure adequate supervision in the community following release.
Sentences. For the female offender, the court imposed a sentence of two years and three months, with a non-parole period of one year and three months, commencing 20 January 2022. For the male offender, applying totality principles to his two offences, the court imposed an aggregate head sentence of three years and two months, with a non-parole period of two years and two months, commencing 2 March 2022. The later commencement date for the male offender reflected that his earlier period in custody was partly attributable to a pre-existing sentence following revocation of an intensive corrections order.
Orders Made
Female offender (GBH in company):
- Sentenced to 2 years and 3 months imprisonment
- Non-parole period of 1 year and 3 months
- Sentence commencing 20 January 2022
Male offender (affray and GBH in company, aggregate sentence):
- Indicative sentence of 3 years imprisonment for the GBH offence
- Indicative sentence of 1 year and 10 months for the affray offence
- Aggregate head sentence of 3 years and 2 months imprisonment
- Non-parole period of 2 years and 2 months
- Sentence commencing 2 March 2022; head sentence expiring 1 May 2025; non-parole period expiring 1 May 2024
Key Takeaways
- The District Court treated the female offender's act of concealing a glass bottle before leaving the hotel as evidence of premeditation, which elevated the objective seriousness of her offending even though the GBH charge required only recklessness, not intent.
- A significant divergence in guilty plea discounts (25% versus 5%) arose from the timing of each offender's plea, reinforcing that the utilitarian value of a plea diminishes the later it is entered.
- Special circumstances were found for both offenders, grounded in their psychological conditions and the need for structured reintegration, allowing the non-parole period to fall below the statutory default proportion of the head sentence.
- Where two offences arise from a single incident involving the same victim, totality principles may limit the degree of accumulation, though some notional accumulation will still be required to reflect the fact that distinct offences were committed.
- Applying the standard non-parole period of five years as a guidepost, the court's assessment of the GBH offence as below mid-range for the female offender and the operation of subjective factors produced sentences well beneath that benchmark.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 93C(1) (affray, maximum 10 years) and s 35(1) (recklessly cause GBH in company, maximum 14 years, standard non-parole period 5 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- DS v R; DM v R [2022] NSWCCA