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District Court 11 December 2007

R v Phillip Conan Robinson, Frank John Robinson and Shane Bertram

[2007] NSWDC 344

Assault & violence
CRIMINAL LAW SENTENCING A.O.A.B.H. IN COMPANY (X2) UPON HOTEL SECURITY STAFF STRONG LEVEL OF VIOLENCE USE OF SKATE BOARD TO STRIKE ONE VICTIM

Citation: R v Phillip Conan Robinson, Frank John Robinson and Shane Bertram [2007] NSWDC 344
Court: District Court of New South Wales
Date: 11 December 2007
Judge(s): Nicholson SC DCJ

Background

Three young men, all Indigenous, pleaded guilty to two counts each of assault occasioning actual bodily harm in company (AOABH in company). The offending occurred in the early hours of 10 November 2006 in Parramatta. All three had a substantial shared history of alcohol and drug abuse, and each was subject to existing bail, bond, or parole conditions at the time.

The first assault arose at Hotel Parramatta, where the offenders were asked to leave by security officer Ivan Mandic after he identified them as intoxicated and previously banned. Following a heated exchange that included Mandic spitting in the direction of the offenders, the three re-entered the hotel and punched Mandic repeatedly to the head and body. Bar stools were thrown, though none struck him.

Shortly after leaving the hotel, the offenders walked to the Church Street Mall, where they approached a lone man, Alan Dews, seated on a bench. After Dews declined to give one of the offenders a cigarette with a dismissive remark, the assault began without further provocation. Bertram kicked and punched Dews, and one offender used a skateboard to strike him. Dews suffered soft tissue injuries. The Court characterised this second attack as entirely unprovoked.

  • What was the objective seriousness of each offence, including the different levels of culpability across the two incidents?
  • How should the personal and subjective circumstances of each offender (including Indigeneity, substance abuse history, and rehabilitation prospects) affect sentence?
  • How should sentences be backdated to account for time already served, including time served on the balance of a pre-existing parole period?
  • Whether special circumstances existed to justify varying the standard ratio of non-parole period to head sentence.
  • How to structure concurrent or cumulative sentences across three offenders with different custody start dates.

Decision

The Court assessed the first assault (on Mandic) as serious but somewhat mitigated by the provocation of spitting, which provided at least a partial, if wholly inadequate, context for the offenders' reaction. The second assault on Dews was treated as considerably more serious: it was entirely unprovoked, targeted a lone and vulnerable stranger, and involved the use of a skateboard as a weapon. The Court applied the principle that community protection is the primary focus of sentencing, citing R v Cuthbert, R v Hayes, and R v Rushby.

Each offender's Indigenous background was taken into account as a relevant subjective matter in accordance with the sentencing principles discussed in R v Engert and consistent with the approach in R v Gladue. The Court acknowledged the offenders' histories of alcohol and drug abuse and considered rehabilitation prospects, albeit cautiously. Guilty pleas were taken into account in mitigation.

The technical complexity of the sentencing exercise lay in the backdating of terms. Each offender had been in custody for differing periods, and at least one was serving the balance of a parole period. The Court structured the sentences so that each offender's imprisonment for the Mandic offence was dated from the time each was first taken into custody, with the Dews offence sentences commencing three months later. This approach required careful calibration to avoid double-counting time already served and to respect the operation of existing parole obligations.

Frank Robinson received a fixed term (rather than a head sentence with a non-parole period) for the Dews offence, reflecting his personal circumstances. Phillip Robinson and Shane Bertram each received a nine-month non-parole period and a three-month balance of term for that offence. The practical effect of the backdating was that Frank Robinson was entitled to immediate release on the date of sentence, while Phillip Robinson and Shane Bertram remained subject to release dates in early 2008.

Orders Made

All three offenders convicted of both charges.

Assault occasioning actual bodily harm (Mandic): each offender sentenced to 6.5 months imprisonment.

  • Frank Robinson: 10 November 2006 to 9 May 2007
  • Phillip Robinson: 1 March 2007 to 30 September 2007
  • Shane Bertram: 23 January 2007 to 22 July 2007

Assault occasioning actual bodily harm (Dews): sentences commencing three months after the Mandic sentence in each case.

  • Frank Robinson: fixed term of 9 months, commencing 10 February 2007, expiring 9 November 2007 (released forthwith)
  • Phillip Robinson: 12 months with a 9-month non-parole period, commencing 1 June 2007, non-parole period expiring 29 February 2008, balance of term expiring 31 May 2008
  • Shane Bertram: 12 months with a 9-month non-parole period, commencing 23 April 2007, non-parole period expiring 22 January 2008, balance of term expiring 23 April 2008

Key Takeaways

  • The District Court confirmed that community protection is the primary consideration in sentencing for violent offences, and that intoxication is not a cause of criminal behaviour that diminishes an offender's responsibility.
  • An unprovoked attack on a lone, vulnerable stranger in a public place, involving the use of an improvised weapon such as a skateboard, will be treated as objectively more serious than an assault arising from a confrontation in which the victim played some role in escalating the situation.
  • Indigenous identity and background are relevant subjective considerations in sentencing, and a sentencing court is required to engage with them individually rather than treating them as a generic mitigating factor.
  • Where multiple offenders with different custody start dates are sentenced together, backdating requires individual calibration so that each person's sentence reflects actual time served without inadvertently extending or compressing the effective period of imprisonment.
  • The existence of pre-existing parole or bond obligations at the time of offending is a relevant aggravating factor, and the structure of any new sentence must account for the interaction between the new terms and any parole obligations still running.

Legislation and Cases Referenced

Cases:
- R v Cuthbert (1967) 2 NSWR 329
- R v Hayes [1984] 1 NSWLR 740
- R v Rushby (1977) NSWLR 597
- R v Engert (1995) 84 A Crim R 67
- R v Gladue (1999) 1 SCR 688 (Canadian authority, cited by the Court in the context of Indigenous sentencing considerations)

Legislation: No specific statutory provisions were cited in the portions of the judgment provided.