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District Court 6 April 2023

R v PELLEGRINO

[2023] NSWDC 85

Assault & violenceDrugsTheft & property
SENTENCING — PENALTIES — IMPRISONMENT POSSESS PROHIBITED DRUG.

Citation: R v Pellegrino [2023] NSWDC 85
Court: District Court of New South Wales
Date: 6 April 2023
Judge: Noman SC DCJ

Background

The offender, a 21-year-old man (aged 19 at the time of offending), was convicted by jury of wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW). He appeared for sentence in April 2023 following a verdict returned on 24 October 2022.

The offence arose from an incident in which the offender entered the victim's apartment, having previously visited the premises to purchase cannabis. The court found that the offender had taken house keys, made inquiries about the flatmates' work rosters, and planned to steal money or drugs from what he expected would be an empty apartment. He was armed with an extendable baton and a knife.

When the offender encountered the victim at home, he did not withdraw. A struggle ensued during which the offender used both weapons, stabbing the victim multiple times to the abdomen and arms. The wounds were life-threatening, required three surgeries, and resulted in a week's hospitalisation in the ICU, as well as ongoing psychological harm to the victim. A related charge of possessing 7.8 grams of ketamine was dealt with separately on a certificate.

  • What were the facts of the offence, given the trial had proceeded on the issue of identification and required the sentencing judge to make factual findings?
  • Where did the objective seriousness of the offending fall on the sentencing range?
  • What weight should be given to the offender's youth, mental health considerations, and personal circumstances in mitigation?
  • Whether special circumstances existed to justify a variation from the standard non-parole period ratio.
  • What sentence was appropriate for both the principal offence and the related drug possession charge?

Decision

The court found the offending fell modestly above the mid-range of objective seriousness. The planning involved (taking keys, inquiring about schedules, attending by rideshare while armed with two weapons) was treated as an aggravating feature. However, the court also found that while the offender had armed himself as a precaution, he had not planned to assault anyone, and that the violence was reactive rather than premeditated. The use of both weapons, the nature of those weapons, the multiple stab wounds, and the fact that the offence occurred in the victim's home were all taken into account as aggravating factors.

The court accepted that the offender's youth at the time of offending (19 years) was a significant mitigating factor. His developing brain, his prior good character, and the greater role of rehabilitation at his age all operated to reduce the sentence. The court also acknowledged possible mental health issues, though it could not determine that these had caused or contributed to the offending. The utilitarian value of the concessions made during trial, which limited witness inconvenience, was also taken into account in mitigation.

Special circumstances were found, justified by the conditions of bail (including home detention), the onerous impact of custody, the fact that this was the offender's first custodial sentence, his youth, uncertainty about offence motivators, and the need for an extended period of post-release supervision to support reintegration. The restrictive custodial conditions arising from COVID, including limited access to programs and visits, were also noted. The statutory non-parole period ratio was varied to 50 per cent accordingly.

For the drug possession offence, the court imposed a non-conviction order under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). For the principal offence, full-time imprisonment was the only appropriate penalty, a position conceded on behalf of the offender.

Orders Made

  • Offence of possess prohibited drug (ketamine): order under s 10A (no conviction recorded).
  • Offence of wound with intent to cause grievous bodily harm: imprisonment for a term of 6 years, with a non-parole period of 3 years, commencing 1 July 2022.
  • Eligibility for release to parole: 30 June 2025.
  • Sentence backdated to reflect period on remand (1 March 2021 to 23 June 2021) and custody after verdict (from 24 October 2022), with the sentence commencing 1 July 2022.

Key Takeaways

  • The District Court confirmed that even where violence is reactive rather than premeditated, arming oneself with multiple weapons before entering a premises remains a significant aggravating factor in sentencing for wounding with intent.
  • A finding of special circumstances can be grounded in a combination of factors, including onerous bail conditions, first-time custody, youth, and the need for extended post-release supervision, without treating bail conditions as quasi-custody to directly reduce the head sentence.
  • Where a trial proceeds on a limited issue (here, identification), the sentencing judge must still determine the facts of the offence and remains bound by the different onus applicable to aggravating and mitigating circumstances.
  • Youth at the time of offending carries meaningful weight in sentencing, particularly in giving rehabilitation a more prominent role, even where the offending itself does not reflect immaturity in the conventional sense.
  • Concessions made at trial that limit witness inconvenience and save court time may provide utilitarian benefit capable of ameliorating an otherwise appropriate sentence, even where the principal issue proceeds to verdict.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(a) (wound with intent to cause grievous bodily harm; maximum 25 years; standard non-parole period 7 years)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1) (possess prohibited drug; maximum 2 years)
- Evidence Act 1995 (NSW), s 128 (certificate protecting witnesses from self-incrimination)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A (non-conviction order); s 5 (threshold for imprisonment)

Cases cited: No specific cases were identified in the provided text, although the judgment notes that four comparable sentencing authorities were tendered by defence counsel.