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.