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District Court 7 February 2025

R v Scott

[2025] NSWDC 84

Assault & violence

Citation: R v Scott [2025] NSWDC 84
Court: District Court of New South Wales
Date: 7 February 2025
Judge: Haesler SC DCJ

Background

In the early morning of 24 October 2023, the offender attended a residential address in southern Wollongong together with a co-offender. The reason for the visit was not established. The victim was working on his car at the front of his home when the two men arrived.

The offender entered the property carrying a steel mallet and immediately behaved aggressively toward the victim, initiating a physical confrontation. During the altercation, the co-offender, who remained outside a gate, threw a large steel car stand over it and struck the victim on the head, causing a 10-centimetre open wound requiring sutures and staples. The offender was not held responsible for the co-offender's subsequent act of stomping on the victim's head after forcing the gate open. The victim's son was present throughout.

The offender was arrested a week later and participated in a police interview. He initially denied guilt in the Local Court but ultimately pleaded guilty to reckless wounding in company under s 35(3) of the Crimes Act 1900 (NSW). He had been in custody since his arrest. The sentencing was complicated by the fact that he was on parole at the time of the offence, having been sentenced by the same judge in 2019 for a separate series of offences.

  • How should objective seriousness be assessed where an offender's role in a joint criminal enterprise was less serious than the co-offender's role?
  • What weight should be given to the aggravating circumstance of offending on parole, and how should the sentence interact with the balance of the existing parole period?
  • How should the offender's subjective circumstances, including his Aboriginal background, deprived childhood, mental health conditions, and drug addiction, be weighed in accordance with Bugmy v The Queen?
  • What discount should be applied for the utilitarian value of the guilty plea?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio.

Decision

Objective seriousness and joint enterprise

His Honour declined to place the offending on a "notional scale" of objective seriousness, finding such an exercise unhelpful in joint enterprise cases where individual roles differ. While the offender was equally liable at law for the co-offender's conduct, the sentence had to be proportionate to what the offender himself did. His Honour accepted that the offender's role was less serious than the co-offender's, noting in particular that it was the co-offender who threw the object causing the wound. However, the offender initiated the confrontation and arrived armed, and the offence remained serious enough to require a custodial sentence.

Breach of parole and totality

The commission of the offence while on parole was treated as an aggravating factor. His Honour applied principles of totality and fairness, finding that the sentence should run concurrently with a significant portion of the balance of the existing parole term rather than being made wholly cumulative. However, some independent punishment for the parole breach was warranted. The sentence was backdated to commence on 30 January 2024, three months after the offender entered custody on this matter.

Subjective circumstances

His Honour gave substantial weight to the offender's background as an Aboriginal man who had experienced significant deprivation, trauma, and disadvantage in childhood. Relying on Bugmy v The Queen, his Honour noted that such matters reduce moral culpability and do not diminish over time, though they can be managed. The offender had also been diagnosed with a mental health condition and had a history of drug addiction. These factors, combined with evidence of genuine remorse, engagement with the Illawarra Aboriginal Medical Service, and positive conduct during his previous period of custody and early parole, were taken into account in mitigation.

Plea discount and special circumstances

Without the guilty plea, his Honour indicated a sentence of approximately 3 years and 4 months would have been imposed. Applying the utilitarian value of the plea, the total sentence was reduced to 2 years and 6 months. Special circumstances were found to exist, given the accumulation of the sentence on the balance of parole and the offender's identified need for close supervision by Community Corrections upon release.

Orders Made

  • Total sentence of 2 years and 6 months imprisonment for reckless wounding in company.
  • Non-parole period of 1 year and 3 months, commencing 30 January 2024, with eligibility for parole on 29 April 2025.
  • Balance of term of 1 year and 3 months commencing 30 April 2025, expiring 30 August 2026.
  • The State Parole Authority retains the decision as to the actual release date, given the interaction with the existing parole expiry of 7 September 2025.

Key Takeaways

  • In joint criminal enterprise sentencing, equal legal liability does not automatically produce equal sentences. The District Court confirmed that where participants' individual roles differ materially, a sentence must be proportionate to what the particular offender actually did, following Magaming v The Queen and related authorities.

  • Offending on parole is an aggravating factor, but totality principles require that a new sentence be structured with meaningful regard to any unexpired parole term already being served. Some independent punishment for the breach remains appropriate even where substantial concurrence is granted.

  • Under Bugmy v The Queen, an Aboriginal offender's deprived background and its ongoing effects on behaviour and impulse control are relevant to moral culpability at every sentencing, not only the first. Those matters do not recede in significance with the passage of time.

  • A finding of special circumstances can be supported by the combination of an accumulated sentence structure and a demonstrated need for extended post-release supervision, justifying a non-parole period that departs from the standard ratio.

  • The utilitarian value of a guilty plea produced a meaningful sentence reduction in this case, with the pre-plea indicative sentence of approximately 3 years and 4 months reduced to 2 years and 6 months upon the plea being entered.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(3) (reckless wounding in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 30 (victim impact statements)

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Johnson v R [2010] NSWCCA 124
- Nasrallah v R [2021] NSWCCA 207
- R v Goundar [2001] NSWCCA 198
- R v Breedon (Court of Criminal Appeal (NSW), 3 December 1992, unreported)
- R v Scott [2019] NSWDC 526