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District Court 13 April 2023

R v FORD

[2023] NSWDC 86

Assault & violenceFirearms & weaponsPublic order & justice offences
SENTENCE SUSTAINED ATTACK WITH ZOMBIE KNIFE SERIOUS INJURIES PROVOCATION ASSAULT POLICE BY BITING

Citation: R v Ford [2023] NSWDC 86
Court: District Court of New South Wales
Date: 13 April 2023
Judge(s): Lerve DCJ

Background

The offender, a woman born in 1984, was a friend of the victim, a man born in 1962. She had asked him to help her move house in Wagga Wagga, and he attended her residence on the evening of 29 September 2021, abandoning a planned fishing trip to do so. Both parties consumed significant amounts of alcohol during the evening; the victim also smoked cannabis and the offender consumed cocaine.

In the early hours of 30 September 2021, while the two were packing belongings in the lounge room, the offender was handling a large green "zombie" knife with a 25 cm serrated blade. The offender maintained that the victim had touched her on the breasts, causing her distress. The victim denied this. Whatever the immediate trigger, the offender lunged at the victim with the knife, inflicting seven separate stab wounds and causing three bone fractures. The victim fled to a neighbour's home and was taken to hospital, where he required emergency surgery and multiple blood transfusions.

Later that day, police intercepted the offender in a taxi on the Sturt Highway. When officers attempted to arrest her, she refused to comply with directions, said "Shoot me, I don't care," and bit an officer on the forearm after OC spray was deployed. She was then conveyed to Wagga Wagga police station.

  • Whether the offender was entitled to the full 25% utilitarian discount for her early plea of guilty, notwithstanding a factual dispute about provocation
  • Whether provocation by the victim operated as a mitigating factor in sentencing
  • Whether the victim suffered ongoing sequelae from his injuries, and what weight that carried in sentencing
  • What sentence was appropriate for the principal offence of wounding with intent to cause grievous bodily harm (s 33(1)(a), Crimes Act 1900), given the standard non-parole period of seven years and a maximum of 25 years
  • What sentence was appropriate for the assault police offence (s 60(1), Crimes Act 1900) attaching to a s 166 certificate, and whether that sentence should be concurrent

Decision

Lerve DCJ confirmed that the factual dispute about provocation did not affect the offender's entitlement to the full 25% discount for the utilitarian value of her guilty plea. The Crown appropriately conceded this point. The court then resolved the disputed facts, including the question of whether the victim sexually touched the offender and whether he continues to suffer ongoing difficulties from his injuries.

The court accepted, to the relevant standard, that some form of provocation was present and treated it as a mitigating factor, though its precise weight was moderated by the sustained and serious nature of the attack. The seven stab wounds, three fractures, arterial bleeds requiring surgical ligation, and the potential for ongoing nerve damage all pointed to the gravity of the offending. The offender had washed the knife before police arrived, which the court treated as relevant to her conduct after the offence.

For the principal offence, the court set a starting point of six years imprisonment. After applying the 25% guilty plea discount, the total sentence became four years six months. The court found special circumstances justifying a departure from the standard ratio between non-parole period and balance of term, citing the offender's age, her first time in custody, the need for an extended period of supervised release, and the importance of rehabilitation including treatment for alcohol abuse and mental health issues. The non-parole period was set at approximately 55% of the total sentence, rather than the usual two-thirds.

For the assault police offence, the court found that the custody threshold was crossed but that a short sentence measured in months was appropriate given the circumstances of the arrest. That sentence was ordered to run wholly concurrently with the principal sentence.

Orders Made

  • Assault police (s 60(1)): Fixed term of three months imprisonment, commencing 30 September 2021, expired 29 December 2021, wholly concurrent with the principal sentence.
  • Wound with intent to cause grievous bodily harm (s 33(1)(a)): Non-parole period of 2 years 6 months, commencing 30 September 2021, expiring 29 March 2024; balance of term of 2 years commencing 30 March 2024 and expiring 29 March 2026.
  • The offender is eligible for release at the expiration of the non-parole period, with that release strongly recommended to be subject to supervision including compliance with directions as to ongoing treatment and counselling for alcohol abuse and mental health issues.
  • A copy of Dr Eagle's report (Exhibit 1, tab one) to be forwarded to the Department of Corrective Services with the relevant warrant.

Key Takeaways

  • A factual dispute about a mitigating factor (here, provocation) does not necessarily disentitle an offender from the full utilitarian discount for a guilty plea, where the Crown concedes the plea's utilitarian value is unaffected by the disputed facts.
  • Provocation can operate as a mitigating factor at sentencing even where it does not constitute a complete defence, though its weight is assessed against the overall character and severity of the attack.
  • Special circumstances justifying a reduction in the non-parole period relative to the total sentence were established here on the basis of first-time custody, the offender's age, rehabilitation needs, and the value of extended post-release supervision.
  • Where an assault police offence arises from conduct during arrest and attaches to a s 166 certificate, the jurisdictional limit of the Local Court (two years) applies, and a concurrent sentence may be appropriate where the assault is related to, but separate from, the principal offending.
  • The District Court applied the principle from Cahyadi v R [2007] NSWCCA 1 in ordering the minor concurrent sentence, reflecting the established approach to accumulation and concurrency where offences are connected in time and circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 60(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Bugmy v The Queen [2013] HCA 37
- Cahyadi v R [2007] NSWCCA 1
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- DS v R; DM v R [2022] NSWCCA 156
- Mayberry v R [2022] NSWCCA 233
- Nowak v R [2008] NSWCCA 89
- R v Tuala [2015] NSWCCA 8
- Attorney General's Application pursuant to s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 2 of 2002 (2002) 137 A Crim R 196
- Park v The Queen [2021] HCA 37
- Greaves v R [2020] NSWCCA 140