R v Rush

[2019] NSWDC 883

District Court

New South Wales

Medium Neutral Citation:	R v Rush [2019] NSWDC 883
Hearing dates:	4 October 2019
Decision date:	04 October 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 3 years 4 months. Non parole period of 2 years.
Catchwords:	SENTENCING – causing grievous bodily harm, while reckless as to causing actual bodily harm- late acceptance by prosecution of pleas to and alternative count   SENTENCING – Relevant factors on sentence – guilty plea- life threatening wound - unprovoked stabbing – no rationale for offence - intoxication- remorse – need for alcohol addiction programmes- special circumstances
Legislation Cited:	Crimes Act 1900
Cases Cited:	Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600:
Category:	Sentence
Parties:	Jack Rush (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr C Doosey (for the offender) Mr K Alder, Crown Prosecutor   Solicitors: Greg Murphy Legal (for the offender)
File Number(s):	2018/00165154

Sentence – ex tempore revised

Introduction

1. Until 26 May 2018, Jack Rush and his victim, Mr Court, had been firm friends since childhood. In the early hours of 26 May 2018 Rush put a large hunting knife into the chest of Mr Court. The knife caused a potentially fatal penetrating injury to Mr Court’s heart. Mr Court is alive today because of the immediate action of doctors and nurses at Wollongong Hospital.

2. Rush was arrested on 26 May 2018, and has been in custody ever since. He accepted responsibility for his actions but the prosecution, as is their right, preferred a charge of wounding with intent to cause grievous bodily harm and that matter was listed for trial. An offer to plead guilty to causing grievous bodily harm, while reckless as to causing actual bodily harm, s 35(2) Crimes Act 1900, was initially rejected. In July 2018, at a special call-over of all the trials listed at Wollongong Court, the indictment was presented again and the plea of guilty to the 35(2) Crimes Act matter was accepted in full satisfaction of the indictment. Rush is now for sentence in relation to that crime. The other more serious alternative count was discontinued.

3. Section 35(2) Crimes Act carries a maximum penalty of ten years imprisonment. It has a standard non-parole period of four years. It is accepted that there must be some variation from the standard non-parole period as the plea of guilty and Rush’s subjective case justify a finding of special circumstances and a longer period on parole.

4. Mr Alder, Crown Prosecutor, submits that this is a particularly serious example of this sort of offence. Ms Doosey, for the offender, submits that despite the potentiality for very serious harm Mr Court’s good recovery places this matter at the lower end of the spectrum.

5. I am not required to make a formal comparison between this and some abstract offence but I do have to make proper assessment of the objective seriousness of what occurred. It requires some examination of the agreed facts.

Agreed facts

6. On Friday 25 May 2018 Rush was drinking at his house with a group of friends. He told me in evidence that by the time of the commission of the offence he was intoxicated at eight on a scale of ten. The group went driving and visiting friends in Bellambi, in northern Wollongong. One lady picked up a large hunting knife from a house that they were visiting. She said she was going to slash the car tyres of a man she disliked. The group then went for a drive and this woman did, as promised, use the knife to slash a car’s tyres. Somehow the offender got hold of the knife.

7. While the group was driving around they saw Mr Court driving toward a well-known kebab van at the Bellambi service station. They followed Mr Court’s car. There was no indication that there was any malice at all in what they did; to the contrary while at the service station they engaged Mr Court in amicable banter. Mr Court joined in a discussion of the tyre slashing incident.

8. At this time Rush was seated in the rear driver’s side seat of the vehicle. Mr Court came over to him. He then went to pay for his kebab. On his return he again went to Rush’s side of the car. They had a conversation through the rear passenger window. Rush said something like, “Let’s go fuck some shit up.” Mr Court replied, “What’re you talking about?” Rush said, “Oh, I’m gonna go smash Lucas’ car or something.” Mr Court said, “No, I’ve sold that car”. As he spoke he leant forward. At that point Rush suddenly lunged forward with the hunting knife. It plunged into Mr Court’s chest. Mr Court fell back. As he fell he pulled the knife out. Mr Court removed his T-shirt. The knife was picked up by someone and later gotten rid of.

9. The group put Mr Court into their car and drove to Wollongong Hospital. His T-shirt was used in an attempt to apply pressure to his chest wound. On the way to the hospital the offender said, “Fuck this, get me out of here,” and used the prophetic words, “I’m going to go down for this shit.” He jumped out of the vehicle and ran off. On arraival at Wollongong Hospital Mr Court not have palpable pulse and was presumed to be in cardiac arrest. He was stabilised and later transferred to St George Hospital by helicopter.

Victim impact

10. Mr Court was discharged after seven days but he had to return for pericardiocentesis; fluid that had built up around his heart had to be removed.

11. Mr Court is present in court today. The medical reports before the Court indicate the nature of the treatment he received. It included a thoracotomy, surgery to open up the chest; evacuation, that is removal of blood from the chest wall; a pericardial tamponade; and a suture to a laceration on his heart. The report indicates that the current evidence suggests the survival rate for patients with injuries such as the one received by Mr Court, are between 9 and 12%.

12. Although no Victim Impact Statement was put before the Court the attack obviously has had significant consequences for Mr Court. The absence of a Victim Impact Statement does not mitigate sentence.

Intoxication

13. It is accepted that Rush was very, very intoxicated that night. He gave evidence to that effect today. In his evidence he offered an apology to his victim, which appears genuine. Whether Mr Court accepts it or not is very much a matter for him.

14. Rush cannot explain in any rational way why he plunged the knife into his friend’s chest; there was no animosity between them. He accepts that his behaviour was extremely reckless as he was brandishing the weapon and moved it towards his friend as his friend was leaning into the car. It is not suggested that the leaning into the car caused the knife to enter the chest, rather it is Rush accepts his own actions caused this. He used the term “accident.” I take that to mean that he simply did not intend to cause the harm that followed and can offer no rational reason for what he did.

15. The law of NSW is very clear - self-induced intoxication at the time the offence does not mitigate or excuse crimes such as this: s 21A(5AA) of the Crimes (Sentencing Procedure) Act; s 428D Crimes Act 1900. At best, as here, gross intoxication can help explain what occurred and enables me to get some understanding of why Rush acted as he did, and I hope it gives Mr Court some little comfort in knowing that he was not deliberately targeted.

16. Rush and the community have to understand that even to have a weapon, such as a hunting knife, except for the purpose for which it was intended is a serious crime. To then have such weapon and allow yourself to be grossly intoxicated so that you could barely care for yourself, let alone others, can lead to tragic consequences and even more serious crime. As I have already indicated, Mr Court is lucky to be alive and Rush is lucky he is not facing a far more significant penalty for a more serious crime.

17. Objectively Rush’s actions were extremely reckless and thoughtless. The offence was unprovoked and inexplicable. The obvious capacity of the weapon, whose photograph is exhibited to me, to cause a degree of harm if recklessly used needs no further elaboration.

18. Significant, but hopefully transient, harm was caused to Mr Court. I am sure he will bear both the physical and mental scars of what occurred for the rest of his life. Only a significant custodial sentence could reflect those objective facts and meet those purposes of sentencing which call for sentences that both punish and reflect the seriousness of what was done.

Offender’s background

19. This is not the first time that Rush has been before a Court, but he has never been to court for anything as serious as this matter. He is not entitled to the leniency often given to first offenders.

20. The material before me, including his evidence and the report of Mr Bradley Jones, psychologist, allows me to have some understanding of the man for sentence. It enables me to structure a sentence which is intended to meet some of the other important purposes of sentencing, one of which is to let everyone in the community know that to go about intoxicated, to go about intoxicated while handling a potentially deadly weapon, can lead to significant consequences that includes the loss of liberty.

21. Rush told me what that loss of liberty means to him. He spends a significant portion of his time wandering around a yard at Long Bay Gaol doing very, very little; a waste of more than a year of his life. I am sure that his time in custody has brought home to him the consequences of his action. It appears, by the way he has responded, including his early offer to plead that he is utilising the time as best he can.

22. There is a report from Mr Jones, psychologist, which sets out Rush’s family background; it is uncontroversial. His parents separated when he was young, his mother works locally, his father tragically passed away in 2017. He used to work with his father. He grew up in the local area. He played sport. He has a partner who is here in court and will stand by him.

23. It appears his abuse of alcohol has impacted on him for many years. As a community we sometimes excuse excessive drinking, but it is clear from all the material before me that this offence would not have occurred if Mr Rush had been able to control his capacity to drink to excess. There is no indication that apart from a significant alcohol use disorder he has any psychiatric or psychological problems.

Special Circumstances

24. Mr Jones’ report is a sensible one and makes sensible recommendations. Rush will need some assistance in custody and on release to address this significant problem. To date he has unfortunately not yet received any such help. His need to engage in alcohol rehabilitation in the community, and as the Crown suggests, engage while in custody and on release in one of the well-respected EQUIPS programs; his need to adjust to normal community life; his prospects for rehabilitation; the fact that he suffers no major pathology; his capacity to work and his strong pro-social relationships with those who have come to support him today, all provide a basis for a finding of special circumstances: that is, a reduction of the amount of time that must be spent in custody. In making that finding I am mindful of the requirement the minimum period for which he should be in prison must properly reflect the gravity of his offence and the other purposes of sentencing.

Submissions

25. Mr Alder, in his written submissions, fairly sets out matters to which I trust I have done justice. Ms Doosey for the offender accepts most of the propositions put forward and submits that the question of general deterrence and, of course, vindication of the victim, should be paramount in my mind.

Synthesis

26. I will give proper weight to mitigating factors, but they cannot lead to the imposition of a penalty which is disproportionate to the gravity of the offence.

27. While I will have proper regard to general deterrence I am sure that Rush did not think about the consequences of his actions at the time. It is unfortunately often the case that many who overindulge in alcohol simply are incapable of thinking through the consequences of their actions. If this sentence is to have any long-term impact on the community it is for the community to understand- before you have that first drink think consequences getting rotten drunk, especially when weapons are available to you. The illogicality of what occurred here, and the potential consequences, must be considered by all.

28. Courts have an obligation to vindicate the dignity of each victim of a crime of violence and to express the community’s disapproval of that offending. It is also necessary that just and appropriate retribution be inflicted on anyone who causes harm to a fellow citizen. One of the functions of the criminal law has been to discourage victim’s friends and families from resorting to self-help and escalating violent vendettas amongst the community. The community has to have confidence that people will be adequately punished for offences of violence such as this, particularly where a weapon was used and a citizen, Mr Court, was, as a result, close to death: Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38.

29. On the other hand, of course, Rush has to be released into the community. It is necessary that he be given every assistance in doing so. The important pro-social aspects of his character must be encouraged and not discouraged by too harsh a penalty.

30. Balancing all those matters I indicate that had it not been for his offer of a plea of guilty a sentence of four-and-a-half years would have been imposed. He will have the full 25 % benefit for his early offer to plead to the present count.

Orders

31. There will be a non-parole period of two years to date from 26 May 2018. You will be eligible for consideration for release to parole on 25 May 2020. There will be a parole period of one year and four months from that date. A total sentence of 3 years 4 months.

32. I recommend that the custodial EQUIPS program, be made available to Rush. I suggest that you go on request as soon as possible to see a drug and alcohol counsellor.

**********

Decision last updated: 04 May 2020