AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 16 February 2024

R v Pink

[2024] NSWDC 36

Assault & violence
CRIME SENTENCE AFTER PLEA CRIMES ACT 1900 S 35(4) RECKLESS WOUNDING BUGMY CONSIDERATIONS

Citation: R v Pink [2024] NSWDC 36
Court: District Court of New South Wales
Date: 16 February 2024
Judge: DCJ Brady SC

Background

The offender pleaded guilty in the Local Court to one count of recklessly wounding another person, contrary to section 35(4) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is seven years imprisonment, with a standard non-parole period of three years.

The offence occurred on 26 November 2022 at an apartment in Brighton Le Sands. An argument broke out between the offender and the victim over the victim's contact with the offender's girlfriend. When the victim challenged the offender with words to the effect of "Do you want to have a go then," the offender picked up a knife and stabbed the victim once in the chest. The knife penetrated through most of the third rib and into the chest cavity. The victim was taken to St George Hospital for treatment.

The offender was committed for sentence from the Downing Centre Local Court. Both the Crown and defence agreed that full-time imprisonment was the only appropriate penalty.

  • What was the objective seriousness of the reckless wounding offence, taking into account the nature of the injury, the use of a weapon, any provocation, and the spontaneous nature of the act?
  • What weight should be given to the offender's background, including a deprived and traumatic upbringing, under the principles established in Bugmy v The Queen (2013) 249 CLR 571?
  • What discount should apply for the early guilty plea?
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the head sentence.

Decision

DCJ Brady SC determined that the offence fell around the mid-range of objective seriousness. The use of a knife was an aggravating factor. Some provocation arose from the victim's challenge, and the act appeared spontaneous with no evidence of planning, both of which reduced objective seriousness to a degree. However, the court emphasised that the violent response remained completely unjustified regardless of any provocation, and that this type of violence required strong denunciation.

On the Bugmy principles, the court accepted that the offender had experienced a markedly deprived upbringing, as detailed in the report of psychologist Ms Bennett. The court acknowledged, consistently with Bugmy, that the effects of profound childhood deprivation do not diminish with time and remained relevant to moral culpability. The offender also had a significant history of drug and mental health issues, which the court accepted as bearing on his background and prospects.

The court accepted that the offender had expressed genuine remorse and noted positive signs arising from his participation in a methadone program during remand. Despite these indications, the court was unable to find good prospects of rehabilitation, given his history and the limited social support available to him on release. The court nonetheless found special circumstances warranting a longer-than-standard parole period, to ensure adequate supervision and support on release.

A 25% discount was applied to reflect the utilitarian value of the early guilty plea entered in the Local Court.

Orders Made

  • Head sentence of 2 years and 6 months imprisonment, commencing 26 November 2022 and expiring 25 May 2025.
  • Non-parole period of 1 year and 5 months, expiring 25 April 2024, with a direction for release to parole on that date.
  • Special circumstances found, justifying the reduced ratio of non-parole period to head sentence.
  • Recommendation (not an order) that Community Corrections facilitate the offender's attendance at a residential rehabilitation program.

Key Takeaways

  • The District Court confirmed that the use of a weapon in a wounding offence constitutes an aggravating factor even where weapon use is not an element of the offence itself.
  • Spontaneity and limited provocation can reduce objective seriousness in a wounding matter, but the court emphasised that a violent response with a knife remains entirely unjustified regardless of provocation.
  • Under Bugmy v The Queen, the effects of a deprived and traumatic upbringing remain relevant to moral culpability at sentencing and do not diminish with the passage of time; the District Court applied this principle in assessing the offender's background.
  • Special circumstances can be established where an offender's history of mental health issues, drug dependency, and limited community support makes a longer-than-standard parole period necessary for adequate post-release supervision.
  • An early guilty plea entered in the Local Court attracted a 25% discount for utilitarian value.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(4) (reckless wounding), s 5 (threshold for imprisonment), s 21A(2)(eb) (aggravating features)

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- De La Rosa (2010) 79 NSWLR 1
- IS v R [2017] NSWCCA 116
- R v Fernando [2002] NSWCCA 28
- R v Tran [1999] NSWCCA 109
- Stevens v R [2017] NSWCCA 216