R v Lambell

[2019] NSWDC 78

District Court

New South Wales

Medium Neutral Citation:	R v Lambell [2019] NSWDC 78
Hearing dates:	06 March 2019
Date of orders:	06 March 2019
Decision date:	06 March 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Imprisonment for two (2) years
Catchwords:	CRIME — Violent offences — Reckless wounding SENTENCING — Plea of guilty — Whether earliest available opportunity — R v Borkowski considered — R v Dib followed SENTENCING — Offences in Gaol
Legislation Cited:	The Crimes (Sentence Procedure) Act 1999 The Crimes Act 1900
Cases Cited:	Bugmy v R [2011] HCA 37 R v Borkowski (2009) 195 A Crim R 1 R v Dib [2003] NSWCCA 117 R v Hoskins [2004] NSWCCA 236 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Mooney v R [2016] NSWCCA 231 Osenkowski [1982] 5 A Crim R 394
Category:	Sentence
Parties:	Regina (Crown) Ricky John Lambell (offender)
Representation:	Counsel: Ms V Garrity (Crown) Mr G Kumarasinhe (Offender)
File Number(s):	2016/00341539

SENTENCE

HIS HONOUR:

1. Ricky John Lambell was listed for trial on Tuesday 5 March 2019, he faced an indictment alleging that on 9 November 2016 at Parklea Gaol he did wound Daniel Johnson with intent to cause him grievous bodily harm, contrary to s33(1)(a) of The Crimes Act. The statutory maximum for such an offence is 25 years and it has a standard non‑parole period of seven years. On Tuesday the Crown were granted leave to file a fresh indictment, the indictment alleged the original count and in the alternative that on the same date and place he did recklessly wound the complainant whilst in company contrary to section 35(3) of The Crimes Act.

2. The offender pleaded not guilty to count 1 and guilty to count 2, the alternative count. The Crown accepted that plea in full satisfaction of the indictment. The maximum penalty applicable is ten years, the maximum penalty is a yard stick for a sentencing Judge to take into consideration. A sentencing Judge should steer by it but not aim for it. An offence under section 35 is a table one offence under the Criminal Procedure Act 1986 and is capable of being dealt with in a Local Court unless an election is made for trial on indictment.

3. The maximum penalty that can be imposed in the Local Court is two years imprisonment.

THE PLEA

4. It has been argued that the plea of guilty was offered by the offender at the first reasonable opportunity after the indictment appeared in its current form. The plea by the offender has resulted in a significant utilitarian value. The observation by Howie J in R v Borkowski (2009) 195 A Crim R 1 at [32] the utilitarian value of a delayed plea is less and consequentially the discount is reduced even if there has been a plea bargain was obiter and not the ratio of the appeal. His Honour relied upon the R v Dib [2003] NSWCCA 117. In Dib Hodgson JA, when dealing with the ground that the sentencing Judge erred in the assessment of the appropriate discount for the plea of guilty, said at [3];

“In my opinion the amount of any discount to be allowed by reason of the utilitarian benefit of a plea of guilty should not be reduced on the ground that the plea was offered in association with the abandonment by the Crown of a greater charge and if in such a case the plea offered, as soon as the Crown indicates willingness to accept a plea to a lesser charge, it should be regarded as being made at the earliest opportunity. To hold otherwise would be inconsistent with a presumption of innocence of the greater charge which in those circumstances must stand unaffected”.

5. Dowd J at [27] said:

“The applicant’s submission was that the discretion of the learned sentencing Judge miscarried in his approach to the timing of the plea on the basis that the original charge carried a maximum penalty of 25 years and it was only on 11 September that the Crown charged the alternative to which the applicant immediately entered a plea and this was the first opportunity. I agree with that submission”.

6. His Honour went on to say at [29]:

“I do not agree that the discount should be reduced by reason of the is [sic] a benefit in acceptance of a plea to a lesser charge. A person in the position of the applicant comes with a presumption of innocence and no assumptions can be made as to the basis for the acceptance of the plea, the plea should be treated as one made at the earliest opportunity.”

7. Howie J in my view has misconstrued the reasoning of the R v Dib. The case does not stand for the proposition as advanced by him that the “Utilitarian value of a delayed plea is less and consequentially the discount is reduced, even where there has been a plea bargain”.

8. It is in fact to the contrary, I have taken the view that the plea offered in this case has been one at the earliest opportunity as was recognised in the case of Dib. The rule of thumb approach by Howie J was severely criticised and disagreed with by RS Hulme AJ in Mooney v R [2016] NSWCCA 231 at [32]-[36]. His Honour was critical of the fact that no reason had been advanced for the rule of thumb approach adopted by Howie J.

THE FACTS

9. The offender in this matter is Ricky Lambell, date of birth 10 August 1990, the co‑offender in this matter is Jason McNee, date of birth 20 June 1996. The victim in the matter is Daniel Johnson, date of birth 8 December 1976. At the time of the incident both offenders and the victim we inmates in Parklea Correctional Centre. The two offenders were housed in Unit 1A which is directly above Unit 1C where the victim resided. Inmates were afforded free range to roam between both units when not locked in their cells at night. On 8 November 2016 the victim moved into area 1C, the next day he was moved from cell 28 to cell 29.

10. At 2.48pm on 9 November 2016 the victim was not in his cell, at this time Lambell was around the hallway where all the cells were in area 1C. Lambell exited the hallway and looked around the common area, it is the Crown case that he was looking for the victim, Lambell walked back into the hallway where all the cells were. About 30 seconds later the victim walked through the common area and into the hallway where his cell was, the victim was wearing no shirt or pants, only a pair of underpants. The victim walked into cell 29, Lambell and McNee entered inside shortly after the victim. Another inmate remained at the door of the cell, whilst inside McNee struck the victim with an improvised stabbing device known as a shiv. The victim was stabbed three times, once in the torso and twice in the shoulder. The victim exited the cell and ran across the common area. McNee and Lambell both followed him across the common area, both can be seen carrying a shiv in the CCTV footage of this area. The victim ran outside and into the yard, he was followed by Lambell and McNee, the victim could be seen to be bleeding profusely at this time. When outside Lambell and McNee caught up to the victim, the victim was essentially cornered at this point, McNee walked ahead of Lambell, towards the victim, McNee struck the victim in the upper chest area with his shiv, both Lambell and McNee turned around and walked back towards the 1C common area. They entered back into cell 29 for a few seconds before exiting again. They both walked back outside to where the victim was, Lambell walked along the bleachers and up into Unit 1A area. McNee walked towards the victim and is observed having some words with him, McNee left the victim and also walked towards the Unit 1A area. Lambell entered a cell in Unit 1A, he took off his jumper and his track pants and beanie, McNee followed shortly after and they both soon left the cell. The victim sought assistance from Corrective officers, the incident was reported and an ambulance was called for the victim. Less than an hour after the incident a shiv was found under a sink by Corrective officers, this shiv was found under a sink in the common area of unit 1A. Correctives staff reviewed the CCTV footage, the two offenders were immediately identified, they were questioned by police but denied any knowledge of the incident.

11. On 15 November police attended MRRC where Lambell was now housed, he was cautioned and arrested for the assault on the victim, he was afforded the opportunity to participate in any interview to which he refused. On 19 December police again attended MRRC where McNee was now housed. He was arrested and cautioned for the assault on the victim. He agreed to participate in an electronically recorded interview, in his interview he admitted responsibility for what happened stating he would plead guilty and that’s all he wanted to say. He did not into any further detail except to say that Lambell did not do anything and that it was all him. The victim was conveyed to Westmead Hospital for treatment, he sustained the following injuries.

1. Two stab wounds to his right shoulder.

2. One stab wound in the right upper quadrant of his abdomen.

3. One stab wound in the left lateral chest wall.

12. All four wounds were noted to have breached the dermis and epidermis. The wound to his right upper quadrant was found to have a penetrated to the right lobe of his liver which was actively bleeding. Surgery was performed to close his wounds which was successful. He was released from the hospital on 13 November 2016.

OBJECTIVE CIRCUMSTANCES

13. The victim was stabbed by the co-offender four times while the offender was in company, he tried to escape from the offender. He was followed from his cell to another area of the gaol and was stabbed again. This offender was armed with a some implement when the victim was confronted by the two offenders. The use of a weapon and the possession of an implement is an aggravating factor. The period of the attack was brief, the victim was pursued, the nature of the injuries for grievous bodily harm cover a wide spectrum of injuries and the victims injuries would be in the mid to low level of seriousness. The offence occurred in gaol. General deterrence is a significant sentencing consideration to ensure a safe running of the prison system. The rule of law must apply behind the gaol walls, a message must be sent to other prisoners that the arming and stabbing of a prisoner will not be tolerated by the Courts, such conduct must be denounced and the offender must be adequately punished for the offence. It is particularly important that Court’s impose sentences calculated to deter the commission offences in prison. Officers who administer prison communities are entitled to expect that inmates will be deterred from offending, equally inmates serving their sentences as best they may are entitled to as much protection as the Courts can afford: R v Hoskins [2004] NSWCCA 236 at [63].

CRIMINAL RECORD

14. The Offender was first dealt with as a juvenile on 11 October 2004 at the Grafton Children’s Court. He has appeared before Courts with a steady frequency since that date. The majority of the offences have been drive whilst disqualified from holding a licence for which he has received terms of imprisonment. He has also served a term of imprisonment for theft of a motor vehicle. On 1 August 2014 he was dealt with at the Gosford District Court for robbery while armed with a dangerous weapon. He was sentenced to five years and three months with a non-parole period of three years to conclude on 16 November 2016. The offender was seven days short of his release date when he committed this offence.

PRE-SENTENCE DETENTION

15. The Crown calculated that the offender has spent two years in custody on this offence. The offence date was 9 November 2016, he was arrested on 15 November 2016, bail was granted by the Supreme Court on 11 September 2018, he was released on parole for the armed robbery offence on 16 November 2018. There must always be a place with the exercise of mercy where a Judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for leniency which has traditionally been extended even to offenders with bad records when the Judge forms the view, almost intuitively that leniency at that particular stage of the offender’s life might lead to reform: Osenkowski [1982] 5 A Crim R 394, King CJ at 395.

DISPARITY OF OFFENDERS

16. The co-offender Jason McNee was sentenced by Herbert DCJ on 12 October 2018, McNee pleaded guilty to one count of wound with intent to inflict grievous bodily harm contrary to s33(1)(a) of The Crimes Act which carries a statutory maximum of 25 years with a seven year standard non‑parole period. The remarks on sentence of Herbert DCJ indicate that the maximum penalty is seven years. I have assumed for the purpose of this sentence that that is a typographical error which remain uncorrected. The nature of the offence and the statutory maximum is different to what is faced by this offender. The co-offender McNee had a disputed facts hearing on sentence. The Crown tendered the CCTV footage of the offence and the co‑offender gave evidence. On this sentence there is an agreed statement of facts. Although as a matter of law this offender was engaged in a joint criminal enterprise with the co-offender, the role played by him in the commission of the crime was different to that of the co-offender, although armed with a shiv he did not stab the victim. The stabbing was done by the co-offender and as I understand it the co-offender had a more extensive criminal history than this offender.

17. The above factors in my view entitle me to impose a disparate sentence to the co‑offender. I note that the co-offender was sentenced to a non‑parole period of four years with a head sentence of six years and four months. That sentence had been discounted by 20% to reflect the utilitarian value of the plea. The sentence commenced on 19 June 2016.

SUBJECTIVE CIRCUMSTANCES

18. The offender is 28 years of age, he is currently in a relationship. There is a child of that relationship who is six years of age. His parent’s marriage failed and there are allegations that their relationship was a violent one. His mother re‑partnered, there is an allegation of sexual abuse involving the offender and that man. I am told by counsel and accept that that matter has been reported to police and is under investigation. The offender is currently unemployed and in receipt of benefits. He recently fell out of a tree breaking his collarbone. His counsel submits that his moral culpability is reduced due to deprivation in his formative years, relying upon Bugmy v R [2011] HCA 37 at [37]-[40]. I accept that submission.

19. On 11 September 2018 he received Supreme Court bail. He was released on parole on 16 November 2018 and from the body of the Court indicated that his parole was completed on 16 February 2019. The Supreme Court bail conditions were quite onerous, involving daily reporting, curfew, residential conditions, abstinence from alcohol and or drugs. He has spent his time in a small community north of Grafton, he has not breached his onerous bail conditions or is there any allegation of post-offence criminality. However, I am guarded about his future prospects of rehabilitation. Hopefully he has now reached the position in life where he will think of the consequences of his actions rather than acting without the thought of those consequences. He needs to become a decent parent, rather than an absent parent.

STATISTICS

20. Seventy seven cases were dealt with, the most occurring non-parole period was 18 months, the most occurring head sentence was two years and six months. I acknowledge that statistics have a limited value: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520;[2010] HCA 45 at [46]-[55].

SENTENCE

21. I have come to the view that due to the objective circumstances of the offence and the need to deter the offender and other persons from committing similar offences (see s 3A(b) of The Crimes (Sentence Procedure) Act 1999) and to ensure the safe running of prisons that no other sentence is available other than an immediate sentence of imprisonment. I have discounted the sentence that I am about to impose by 25% because of the early plea.

22. Mr Lambell you are convicted and I sentence you to two years imprisonment and I backdate that sentence to 5 March 2017. I suspect you will not be taken downstairs because as I understand the sentence that I have now imposed it expired yesterday and that you should be free to go today. This is an opportunity for you to show that you can be a full time parent as opposed to an absent parent.

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Decision last updated: 27 March 2019