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.