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District Court 18 September 2024

R v Leary; R v Williams

[2024] NSWDC 554

Assault & violenceFirearms & weapons
CRIME SENTENCE ASSAULT OCCASIONING ACTUAL BODILY HARM

Citation: R v Leary; R v Williams [2024] NSWDC 554
Court: District Court of New South Wales
Date: 18 September 2024
Judge(s): Bourke SC DCJ

Background

Two co-offenders appeared for sentencing following an early-morning confrontation at a residential unit in Plumpton. The female offender had recently been living with the victim at the Plumpton Inn but had been asked to leave after he observed her taking Xanax. In the hours that followed, she and her co-offender drove to the unit to retrieve her belongings, accompanied by an unidentified third male.

What began as a property retrieval escalated into a violent altercation. The female offender pushed the victim into his unit, grabbed him by the hair, struck him repeatedly, and then produced a knife with a 16-centimetre blade. She swung the knife at the victim's face, striking his forearm with the back of the blade and causing a laceration. The male offender approached the doorway brandishing a small metal baseball bat he had concealed in his jacket, briefly entered the unit, and left with the victim's phone. The victim's phone and a vaping device were later found in the female offender's bag when she attended a police station that evening on an unrelated bail condition.

The female offender faced two charges: using an offensive weapon with intent to intimidate (carrying a maximum of 12 years imprisonment) and assault occasioning actual bodily harm (maximum five years). A larceny offence was taken into account on a Form 1. The male offender faced one charge of using an offensive weapon with intent to intimidate, also with a larceny on a Form 1.

  • The appropriate sentence for each offender, having regard to objective seriousness, subjective circumstances, and the utilitarian value of early guilty pleas
  • Whether special circumstances existed to warrant departure from the standard non-parole period ratio
  • Whether sentences should be served by full-time imprisonment or by way of an Intensive Correction Order (ICO)
  • The appropriate commencement dates for sentences, particularly for the male offender whose earlier parole had been revoked

Decision

Both offenders pleaded guilty at the earliest opportunity, entitling each to a 25 per cent discount on their sentences for the utilitarian value of those pleas. The court considered the maximum penalties as important guideposts and assessed the objective seriousness of the offending in that context.

In relation to the female offender, the court examined her personal history, including her mental health, drug use, and background disadvantage. Applying the principle from Bugmy v The Queen, the court accepted that her history of disadvantage diminished her moral culpability to some extent, though this did not reduce the objective gravity of producing a knife in a residential confrontation. The court found special circumstances, citing her mental health issues and the need for supervision upon release. After considering whether an ICO was appropriate, the court declined to impose one, concluding that full-time custody was required.

The male offender's situation was complicated by his criminal history involving similar offending and by the fact that the present offence was committed approximately seven months after his release on parole. His parole had been revoked from the date of his arrest on 7 July 2023, and his pre-existing sentence was not due to expire until 24 May 2025. The court found that none of his time in custody to that point was solely referable to the current offence. The court again found special circumstances based on his mental health, the risk of institutionalisation, and the need for post-release supervision.

The court declined to impose an ICO for the male offender, noting that his criminal history included similar offending, that leniency had been extended to him on prior occasions, and that the current offences were committed while on parole. Personal deterrence and community protection required full-time imprisonment. His sentence was backdated to 18 March 2024.

Orders Made

Ms Williams:
- Sentenced on the offensive weapon with intent to intimidate charge (with larceny on Form 1 taken into account)
- Sentenced on the assault occasioning actual bodily harm charge
- Special circumstances found; sentences to be served by full-time custody

Mr Leary:
- Sentenced on the offensive weapon with intent to intimidate charge (with larceny on Form 1 taken into account)
- Special circumstances found; sentence to be served by full-time custody
- Sentence backdated to 18 March 2024; head sentence to expire 17 September 2025; non-parole period to expire 17 March 2025

Note: The precise head sentence lengths and non-parole periods for Ms Williams were not included in the portion of the judgment provided.

Key Takeaways

  • A 25 per cent sentencing discount for utilitarian value applies where an offender pleads guilty at the earliest opportunity, consistent with standard practice under the Crimes (Sentencing Procedure) Act 1999.
  • Under the principle in Bugmy v The Queen, a background of deprivation and disadvantage can reduce an offender's moral culpability, but does not diminish the objective gravity of the offending itself.
  • Special circumstances justifying a departure from the standard non-parole period ratio can be established by reference to an offender's mental health needs, the risk of institutionalisation, and the importance of adequate post-release supervision.
  • Where an offender has a relevant prior history, has previously received leniency through alternative sentencing measures, and has re-offended while on parole, the District Court held that full-time custody rather than an ICO was the appropriate sentencing disposition.
  • Backdating a sentence does not necessarily result in a substantial reduction in effective custody time; the court gave only limited backdating for the male offender because his pre-existing parole revocation accounted for most of the period already served.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 59(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Bugmy v The Queen [2013] HCA 37
- CDPP v De La Rosa [2010] NSWCCA 194
- R v De Simoni [1981] HCA 31