R v Taborda

[2009] NSWDC 51

CITATION:	R v TABORDA [2009] NSWDC 51
HEARING DATE(S):	12 March 2009
JUDGMENT DATE:	12 March 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to imprisonment consisting of a non parole period of 2 years and 6 months and an overall term of 4 years and 8 months.
CATCHWORDS:	Criminal law - Sentence - Malicious wounding with intent to cause grievous bodily harm - Intoxication
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Heron v R [2006] NSWCCA 215
PARTIES:	The Crown Ruben Taborda
FILE NUMBER(S):	DC 2008/00007924
SOLICITORS:	NSW DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: In recent years the Court of Criminal Appeal has had occasion to comment in adverse terms on the practice of reports being tendered on pleas of guilty, reports from psychologists which express opinions and conclusions where there is no evidence put before the court to establish the material on which the conclusion is based. In those cases the Court of Criminal Appeal suggests that judges should look with scepticism at those opinions. At the very least the Court of Criminal Appeal has suggested that the weight to be given to such opinions should be reduced. This is one such case.

2 The central theme of the plea in mitigation put on behalf of the offender in this case concerned his experiences in Colombia, the reason he left Colombia and what has happened to his family who are left behind. A large part of the reports prepared on the offender on his behalf record various things that he has told the psychologists. The psychologists have accepted those at face value. Sometimes they have spoken to others as well in an effort to clarify or corroborate what the offender has said, but the remarkable thing about the case before me is that there was no sworn evidence from the offender himself to establish much of that which was relied on by the experts in forming their opinion. Quite why that was is, frankly, beyond me. It has affected the weight that I can give to the material put before me and the opinions formed by the psychologists. What could otherwise have been quite powerful evidence in favour of the offender has been left behind.

3 The offender has pleaded guilty to one offence of malicious wounding with intent to cause grievous bodily harm. That is a most serious offence, carrying a maximum penalty of twenty-five years with a standard non-parole period of seven years. The plea was entered at a reasonably late stage in the proceedings but because the intention to plead guilty was advised to the Crown shortly before the trial started, there was a utilitarian benefit to the Crown and the court. In particular witnesses who otherwise would have had to come from Colombia did not need to do so. I will discount the sentence I would otherwise have imposed by fifteen per cent to reflect the plea of guilty and when it was entered.

4 The offence arose…