Citation: R v van Krevel [2024] NSWDC 146
Court: District Court of New South Wales
Date: 21 February 2024
Judge: Haesler SC DCJ
Background
The offender, a woman born in 1980, appeared for sentencing on a charge of wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW). The offence was committed on 6 March 2023 against a 56-year-old neighbour with whom she had recently formed a domestic relationship. The offending was a domestic violence offence.
The facts were agreed. During an argument driven by jealousy, the offender struck the victim with a bottle, and the following day struck him again with another bottle at a kebab shop. Back at his unit, she retrieved a knife from the kitchen and stabbed him in the left shoulder from behind. After he collapsed and was bleeding heavily, she refused to give him his phone, stood over him, and stabbed him a second time under his left arm near his back. When the victim managed to call triple-0, she terminated the call. The victim suffered a penetrating chest wound, a collapsed lung, a black eye, and a stab wound requiring sutures. He needed emergency surgery and a blood transfusion.
The offender had a significant prior history. In 2003 she was sentenced to six years' imprisonment for soliciting the murder of her father, and in 2013 she received a three-year sentence for stabbing a then-partner five times. Her parole had been revoked on multiple occasions across both prior sentences. At the time of the 2023 offending, she was on good behaviour bonds.
Legal Issues
- What was the objective seriousness of the offending, having regard to the circumstances of the two stabbings and the Form 1 matters?
- What discount applied for the guilty plea, and how should the Form 1 matters be taken into account without double-counting?
- How should the offender's prior criminal history, including a pattern of similar offending, be weighed in determining the appropriate sentence?
- What mitigating weight, if any, attached to the offender's deprived and abusive childhood and her diagnosed mental health conditions (Borderline Personality Disorder and PTSD), in light of Bugmy v The Queen?
- Were special circumstances established warranting a departure from the standard ratio between non-parole period and balance of term?
Decision
Haesler SC DCJ described the offending as a very serious example of its type, though not the most serious possible. The court identified several aggravating features: the first stabbing was premeditated and inflicted from behind; the second occurred while the victim was already weakened from blood loss; the two stabbings were separated in time; and the offender prevented the victim from seeking help and attempted to terminate the emergency call. The court declined to label individual features as constituting "gratuitous cruelty," preferring to let the facts speak for themselves and avoid double-counting under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) or across Form 1 matters.
The court applied a 25% utilitarian discount for the guilty plea, which had been entered in the Local Court, reflected an acceptance of responsibility, and had clear practical utility. The Form 1 matters (the bottle assaults) were taken into account with care, the court noting that they formed part of the same course of conduct and that double-counting that conduct had to be avoided.
On the criminal record, the court found it demonstrated not an uncharacteristic aberration but a continuing pattern of similar offending and disobedience toward the law. Applying Veen v The Queen (No 2), the court placed particular weight on retribution, deterrence, and community protection. The prior sentences had not been served in circumstances that reduced the relevance of this history: the offender had, in fact, been further traumatised during her first custodial term, a matter the court acknowledged as relevant context.
The offender's severely deprived and abusive childhood and her diagnosed mental health conditions (Borderline Personality Disorder and PTSD) were accepted as genuine mitigating factors. Applying Bugmy v The Queen, the court found that the effects of profound childhood deprivation do not diminish over time, and the offender could not be held to the same standard of culpability as someone without that background. However, those factors could not operate as a complete answer to her conduct; she retained responsibility for her actions. Special circumstances were found to exist, justifying a longer parole period than would otherwise apply, to allow for supervision, treatment, and supported reintegration into the community.
Orders Made
- Total sentence of 6 years' imprisonment for the offence under s 33(1)(a) of the Crimes Act 1900 (NSW)
- Non-parole period of 4 years, commencing 6 March 2023, with eligibility for parole from 5 March 2027
- Balance of term of 2 years, commencing 6 March 2027 and expiring 5 March 2029
- Finding of special circumstances
Key Takeaways
- The District Court confirmed that a prior history of similar offending is a relevant sentencing consideration that warrants a more severe penalty, but cannot produce a sentence disproportionate to the gravity of the index offence: Veen v The Queen (No 2).
- Under Bugmy v The Queen, the mitigating effect of a severely deprived and abusive childhood is not diminished by the passage of time or by the offender's age, though it operates alongside rather than displacing personal responsibility.
- A 25% utilitarian discount for a guilty plea entered in the Local Court was appropriate where the plea reflected genuine acceptance of responsibility and had practical utility for the criminal justice system.
- Where Form 1 matters and objective circumstances of the principal offence overlap as part of a continuous course of conduct, sentencing courts must take active steps to avoid double-counting.
- A finding of special circumstances, which extends the parole period beyond the standard proportion, can be warranted where the offender's mental health conditions and history of custodial trauma make structured supervision and access to treatment on release particularly important.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Engert v The Queen (1995) 84 A Crim R 67
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Dong v R [2021] NSWCCA 82
- Jinette v R [2012] NSWCCA 217
- Potts v R [2012] NSWCCA 229
- R v Millwood [2012] NSWSC 2
- R v van Krevel [2003] NSWSC 227