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District Court 19 April 2024

R v Colvin

[2024] NSWDC 281

Assault & violenceFirearms & weaponsPublic order & justice offences

Citation: R v Colvin [2024] NSWDC 281
Court: District Court of New South Wales
Date: 19 April 2024
Judge: Haesler SC DCJ

Background

The offender had previously been sentenced by the same judge in 2021 for offences committed against his sister. At that earlier sentencing, his history of childhood trauma, sexual abuse, mental illness, and long-term substance abuse were all taken into account. He was released to parole on 5 February 2023, approximately six weeks before the present offences occurred.

Within a month of his release, the offender's parole conditions had broken down. He stopped taking his medication, resumed using illicit drugs, cut off his electronic monitoring anklet, and became increasingly paranoid. A breach of parole warrant was issued. When police attended to execute the warrant on 6 March 2023, he confronted them in a yard holding a T-handled car puncture repair tool, waved it at them, and challenged them to act. Officers deployed a taser to subdue him and he continued to resist during arrest.

Later that same day, while being held in the waiting area of the Long Bay Correctional Centre clinic, the offender produced a ballpoint pen and struck another detainee approximately 16 times in around 25 seconds, causing multiple facial fractures and lacerations to the victim's head and face.

  • What aggregate sentence was appropriate for three offences (using an offensive weapon to prevent lawful detention, hindering police, and using an offensive weapon with intent to commit an indictable offence), with a further offence of assault occasioning actual bodily harm taken into account on a Form 1?
  • What weight should be given to the offender's significant background of childhood trauma, mental illness, and substance abuse in sentencing, particularly in light of the High Court's guidance in Bugmy v The Queen?
  • How should the court balance aggravating factors, including the breach of parole, against mitigating factors such as the offender's guilty pleas and mental health?
  • Whether special circumstances existed to justify adjusting the ratio between the non-parole period and the head sentence.

Decision

Haesler SC DCJ accepted that the offender's mental health conditions, including schizophrenia and a substance abuse disorder, were active at the time of the offences. Psychiatric evidence from Dr Richard Furst confirmed the offender was experiencing psychotic symptoms when he committed the offences. Consistent with the High Court's holding in Bugmy, the sentencing judge gave full weight to the cumulative effect of childhood trauma, noting its impact does not diminish over time and must be considered at every sentencing occasion.

On objective seriousness, the judge characterised both episodes as serious. The confrontation with police created a real dilemma for the officers, who were in a confined space with a man holding a sharp implement and inviting them to act. The gaol assault involved a degree of premeditation, a makeshift weapon, and persistent violence that caused significant physical injury to a victim who had done nothing to provoke the attack. The absence of a Victim Impact Statement was held not to reduce the gravity of the offending.

The aggravating factor of offending while on conditional liberty was taken into account, though the judge noted the sentence had already been reduced by reason of the mitigating factors raised. A 25% reduction was applied for the early guilty pleas. The totality principle was applied to ensure the combined sentence was not disproportionate to the overall criminality. The judge found only modest special circumstances, extending the parole period slightly to encourage the offender's ongoing engagement with mental health treatment and to reflect some period of accumulation attributable to the parole breach.

The judge observed, as had been the case in 2021, that the offender had spent almost all of his adult life in custody, with time in the community typically measured in days or months. His negative personality traits had become entrenched, and the support structures recommended at the previous sentencing had not been adequately put in place upon release.

Orders Made

  • Use offensive weapon to prevent lawful detention: 1 year and 1 month imprisonment (indicated sentence)
  • Hinder or resist police in execution of duty: 3 months imprisonment (indicated sentence)
  • Use offensive weapon with intent to commit indictable offence (with assault occasioning actual bodily harm taken into account on Form 1): 3 years imprisonment (indicated sentence)
  • Aggregate sentence: 3 years and 3 months imprisonment
  • Non-parole period: 2 years and 3 months, commencing 6 April 2023 and expiring 5 July 2025
  • Parole period: 12 months, commencing 6 July 2025 and expiring 5 July 2026 (reflecting a modest finding of special circumstances)
  • Release to parole is contingent on a decision of the State Parole Authority having regard to community safety under s 136 of the Crimes (Administration of Sentences) Act 1999 (NSW)

Key Takeaways

  • Under Bugmy v The Queen, the impact of childhood trauma and deprivation on an offender's moral culpability does not diminish over time and must be given full weight at every sentencing occasion, even where the same mitigating factors were considered at an earlier sentencing.
  • Offending while on conditional liberty is an aggravating factor, but the District Court here limited its additional weight given that the overall sentence had already been reduced to reflect the mitigating circumstances of mental illness and early guilty pleas.
  • A 25% reduction for early guilty pleas was applied to each indicated sentence, with the judge taking care that the accumulation process did not inadvertently erode that discount.
  • The totality principle required that accumulated sentences be moderated so the combined term was proportionate to the overall criminality, rather than simply reflecting the sum of individual sentences.
  • A finding of special circumstances need not produce a substantial extension of the parole period; in this case the adjustment was described as "modest," intended to incentivise ongoing engagement with mental health treatment and to reflect the parole breach period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a), 50(1), 61AA
- Crimes (Administration of Sentences) Act 1999 (NSW), s 136
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 515
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Engert v The Queen (1995) 84 A Crim R 67
- Nasrallah v R [2021] NSWCCA 207
- R v Colvin (No 1) [2021] NSWDC 309
- R v Colvin (No 2) [2021] NSWDC 494
- R v Nydegger [2023] NSWDC 619
- R v Windle [2012] NSWCCA 222
- Tepania v R [2018] NSWCCA 247