R v Pearce

[2019] NSWDC 530

District Court

New South Wales

Medium Neutral Citation:	R v Pearce [2019] NSWDC 530
Hearing dates:	20 March 2019
Date of orders:	21 March 2019
Decision date:	21 March 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraph [22]
Catchwords:	CRIME — Violent offences — Reckless wounding SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise SENTENCING — Subjective considerations on sentence — Special circumstances — Institutionalisation
Legislation Cited:	Crimes (Sentencing Procedure) Act
Cases Cited:	Bugmy v R (2013) 249 CLR 571
Category:	Sentence
Parties:	Todd Andrew Pearce (Offender) Director of Public Prosecutions (Crown)
Representation:	Counsel: N Keay (Crown) G Hoare (Offender)   Solicitors:
File Number(s):	2017/00275982

SENTENCE

1. HIS HONOUR: The offender during the sittings in which his trial was listed for hearing pleaded guilty to count 2 on an indictment which alleged an offence that on 27 May 2017 at Goulburn whilst in company with Damien Russell and Ashley McCook he recklessly wounded a Nathan Patterson. The Crown accepted that plea in full satisfaction of the indictment that was presented against the offender. It is an offence under s 35(3) of the Crimes Act and has a maximum penalty of ten years imprisonment with a standard non-parole period of four years imprisonment. There is a faxed document before me and the Crown also tendered CCTV footage of the incident which I will come back to.

2. The victim, Mr Patterson, was serving a sentence in Goulburn Gaol. This offender and Mr McCook and Mr Russell were also inmates at the same gaol.

3. On 27 May 2017, the day of the offence, the victim had been moved into unit 2 which housed this offender and Mr McCook and Mr Russell. At around 2pm that day, only shortly after Mr Patterson had been moved into the yard he was approached by this offender and the two co-offenders near the awning and gateway which leads to an area referred to as “the circle”. At that time the victim was attacked by the group and stabbed a number of times, before he escaped, running towards the showers. He fell to the ground and was further set upon by the group and again was stabbed a number of times by the same three offenders. The Crown accepts that the offenders intended to inflict something less than really serious bodily injury.

4. Chemical munitions had to be deployed by Corrective Services officers which caused the group of attackers to cease their assault upon the victim. The victim was removed from the yard and Corrections and medical staff observed that he had a number of stab wounds to his back and shoulders. This offender and the other two co-offenders were removed from the yard and the yard became a crime scene.

5. A review of CCTV footage showed this offender and Mr Russell throw items over the fence and into neighbouring yards. Police located two home-made shivs. Both weapons were forensically tested and each had a DNA match for the profile of the victim located on them. One of them had a DNA matching for the profile of Mr Russell, who I sentenced a moment ago, on the handle end. As I said the incident was captured on CCTV.

6. The victim was treated by attending ambulance officers before being conveyed to Goulburn Hospital where he was stabilised before being air lifted to Canberra Hospital for specialised treatment. He suffered six wounds approximately 2 centimetres in length on his outer shoulder, shoulder blade, two in the middle of the back and two on his lower back. He suffered a pneumothorax on the left side and a right-sided pulmonary contusion. A left-sided chest drain was inserted for the pneumothorax removed on 31 May 2017. His wounds were stapled and the staples were later removed in the gaol. The victim failed to provide any information in relation to the matter and the offender declined to be interviewed.

7. I mentioned the CCTV footage and the Crown put submissions that both Mr Russell and this offender, Mr Pearce, could be discerned from the CCTV footage and I could determine which offender was which in the footage. Having watched the CCTV footage on more than one occasion on my laptop I was unable to make out this offender in the footage labelled C2064 Yard Front. I will come back to that shortly.

8. Clearly this offender and his co-offenders were engaged in a joint criminal enterprise and he is criminally liable for the offence on the basis of that principle. While each participant in a joint criminal enterprise is equally responsible for all the acts in the course of carrying out the enterprise by whomsoever they are committed a particular participant’s level of culpability is to be assessed by reference to the conduct of that participant.

9. I am satisfied beyond reasonable doubt based on the facts and the CCTV footage that this offender did actually stab the victim. I am not able to say how many times this offender himself stabbed the victim.

10. The incident happened quickly and there was a level of ferocity associated with it. However, I note the Crown’s concession as recorded in the facts, that it accepts that the offenders intended to inflict something less than really serious bodily injury. I note the victim suffered six wounds and his injuries were significant in that a pneumothorax occurred requiring a drain to be inserted.

11. The offence is a serious one, but I assess its objective seriousness as being a little below the midrange level of objective seriousness.

Offender’s Subjective Case

12. I turn to the offender’s subjective case. He is currently 34 years of age. He has a significant criminal record dating back to when he was a juvenile. He is currently serving a sentence imposed on 20 November 2008 for a murder which was committed in 2007. That sentence was one of 20 year imprisonment with a non-parole period of 15 years dating from 19 August 2007. His current non-parole period expires on 18 August 2022. Clearly his criminal history disentitles him to any leniency here. He, like Mr Russell, has spent a significant part of his adult life in custody. He has spent less than two years of his adult life in the community based on the analysis contained in the Crown bundle. It is reasonable to assume in these circumstances he is likely now to be institutionalised to the prison environment.

13. The remarks on sentence of Justice Latham back on 17 December 2008 when she sentenced the offender for the murder I referred to earlier are before me. Her Honour, in discussing the offender’s subjective case, said the following:

“The offender has had the most appalling life. As a young child he endured serious and repetitive violence metered out to his mother in his presence and to himself by various males. Both of his natural parents were heroin addicts. His mother was periodically incarcerated as was his father resulting in numerous foster care placements. By the time the offender reached 14 years of age he had at least resuscitated his mother from an overdose while awaiting the arrival of an ambulance and was required to care for four younger step-siblings while his parents supported their habits. His education was almost non-existent.”

14. I was also provided with the report of Dr Olav Nielssen dated 29 October 2008 which had been before her Honour when she sentenced the offender back in 2008. That report provides further background to the offender consistent with the facts which her Honour found on sentence.

15. Clearly the offender’s early deprived background means that the offender falls within the principles discussed in Bugmy v R (2013) 249 CLR 571 and I have considered those principles when determining the sentence.

16. The offender’s guilty plea was entered during the sittings in which his trial was listed for hearing. That trial would have required the attendance of a number of Corrective Services officers. In the circumstances I allow a 10% discount of the sentence for the utilitarian value of the plea.

17. Apart from the plea of guilty there is no evidence of remorse. Given the offender’s criminal history I have considered his prospects of rehabilitation to be poor. Here the offender is serving a current sentence as at today’s date. Section 56 of the Crimes (Sentencing Procedure) Act applies to this sentence. It was not submitted that I should commence this sentence on any date other than the expiry of the current non-parole period, being 18 August 2022.

18. In terms of parity with Mr Russell, I see no distinction between them in terms of their involvement in the offence. I consider that the prospects for rehabilitation for Mr Russell were a little better than for this offender and found that there was some limited evidence of remorse above the plea of guilty.

19. Here there seems to be no basis for a finding of special circumstances when I have regard to the application of s 56 of the Crimes (SentencingProcedure) Act and a lengthy period of possible parole that is available given the length of the parole period associated with the murder sentence.

20. As I said when I sentenced Mr Russell, I have had regard to the objects of sentencing in s 3A of the Crimes (Sentencing Procedure) Act. General deterrence is of particular importance when sentencing for serious violence committed by an inmate on a fellow inmate in a correctional centre. Courts must impose sentences of sufficient severity in order to deter this inmate and others from engaging in such violent behaviour which threatens the wellbeing of inmates.

21. The maximum penalty and standard non-parole period have been taken into account as legislative guideposts. I have departed from the standard non-parole period due to my assessment of the level of objective seriousness of the offence.

Orders

22. Mr Pearce, you are convicted of the offence to which you have pleaded guilty. You are sentenced to a sentence consisting of a non-parole period of two years and three months and a balance of term of nine months. That is a total sentence of three years imprisonment. It commences on 18 August 2022 and expires on 17 August 2025. The non-parole period expires on 17 November 2024. The earliest date you may be released to parole is the date of the expiry of the non-parole period which is 17 November 2024. Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether you are released then or on another day.

**********

Decision last updated: 01 October 2019