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District Court 16 February 2024

R v Bourchier (a pseudonym)

[2024] NSWDC 15

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME SENTENCE CONTRAVENE AVO YOUNG OFFENDER SERIOUS CHILDREN'S INDICTABLE OFFENCE

Citation: R v Bourchier (a pseudonym) [2024] NSWDC 15
Court: District Court of New South Wales
Date: 16 February 2024
Judge: Colefax SC DCJ

Background

The offender, referred to by the pseudonym John Bourchier, was 17 years and 8 months old when he committed the principal offence in January 2023. He attended premises at Constitution Hill, Sydney, in breach of an apprehended domestic violence order (ADVO) that his girlfriend had obtained against him. A confrontation involving the girlfriend's mother and her partner escalated after the partner arrived and grabbed the girlfriend by the hair.

The offender intervened, armed with a knife, and stabbed the victim multiple times to the arms, torso, and neck. The victim was hospitalised with serious injuries including a pneumothorax, a fractured scapula, and fractured ribs, before being discharged on 20 January 2023. No ongoing physical injuries or significant psychological harm beyond what might ordinarily be expected were evidenced, and no victim impact statement was provided.

The offender was charged with wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 25 years' imprisonment, and with contravening a prohibition in an ADVO. He pleaded guilty at the first available opportunity.

  • What was the objective seriousness of the wounding offence and the ADVO contravention?
  • To what extent did the offender's deprived background, youth, and psychological conditions reduce his moral culpability?
  • Were there special circumstances under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW) justifying the sentence being served entirely in a juvenile detention centre rather than an adult correctional centre?
  • Were there special circumstances justifying a reduction in the standard statutory ratio between the head sentence and the non-parole period?
  • How should the ADVO contravention offence be dealt with given the totality of the circumstances?

Decision

The court assessed the wounding offence as slightly below mid-range in objective seriousness, and the ADVO contravention as towards, but not at, the bottom of the range. Both offences were aggravated by the fact the offender was subject to a Children's Court good behaviour bond at the time of offending.

The court placed significant weight on the offender's profoundly disadvantaged background, including parental abandonment, exposure to domestic violence, sexual abuse at age 11, and early-onset drug use. Drawing on the principles in Bugmy v R and DPP (Cth) v De La Rosa, the court found that these circumstances, along with multiple diagnosed psychological conditions including major depressive disorder, generalised anxiety disorder, ADHD, and poor impulse control, meaningfully reduced his moral culpability. His young age reinforced this reduction.

Notwithstanding these mitigating factors, the court noted a remarkable turnaround since the offender's arrest and detention at Cobham Youth Justice Centre: he had completed Year 11, was progressing toward the HSC, had acquired vocational skills, was addressing his drug dependence, and had been described as a model detainee. Rehabilitation remained incomplete, however, and the court found this critical stage required continuation in a structured juvenile environment.

The court found special circumstances under s 19(3) of the Children (Criminal Proceedings) Act on two bases: the only suitable educational, vocational, and therapeutic programs were available in a juvenile detention centre, and transfer to an adult correctional centre would pose an unacceptable risk of psychological harm. The court also found separate special circumstances justifying a reduced non-parole period, citing the offender's first period in custody, his rehabilitation prospects, and his complex psychological profile.

Orders Made

  • Wounding with intent to cause grievous bodily harm (principal offence): head sentence of 3 years' imprisonment (after a 25% guilty plea discount from a notional 4-year term), commencing 17 January 2023 and expiring 16 January 2026.
  • Non-parole period of 1 year and 10 months, commencing 17 January 2023 and expiring 16 November 2024.
  • Balance of sentence of 1 year and 2 months, commencing 17 November 2024 and expiring 16 January 2026.
  • Special circumstances found under s 19(3) of the Children (Criminal Proceedings) Act 1987 (NSW): the entire sentence to be served in a juvenile detention centre.
  • ADVO contravention offence: proved but dismissed without penalty pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Key Takeaways

  • Under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW), special circumstances can justify an order that a sentence be served entirely in a juvenile detention centre, even where the offence is a serious children's indictable offence dealt with according to law in the District Court.
  • A deprived and traumatic childhood, consistent with the principles in Bugmy v R (2013) 249 CLR 571, and diagnosable psychological conditions that directly contributed to offending can together constitute a significant reduction in moral culpability.
  • The District Court confirmed that two distinct findings of "special circumstances" are available and were applicable here: one under s 19(3) of the Children (Criminal Proceedings) Act (governing place of detention) and a separate one under the Crimes (Sentencing Procedure) Act 1999 (NSW) (governing the non-parole period ratio).
  • Demonstrated rehabilitation during pre-sentence detention in a juvenile facility carries meaningful weight in sentencing, particularly where that progress is ongoing and supported by independent reports from custodial and educational staff.
  • Where a co-charged offence is of low objective seriousness and would ordinarily be dealt with in a lower court, a s 10 dismissal without penalty remains available even after the offender consents to the matter being dealt with alongside a more serious indictable offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 17, 19
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(a)

Cases:
- Bugmy v R (2013) 249 CLR 571
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- R v Henry (1999) 46 NSWLR 346
- TM v R [2023] NSWCCA 185