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District Court 8 February 2008

Durante, Kurt Russell v R

[2008] NSWDC 350

Assault & violence
CRIMINAL LAW SENTENCE APPEAL AFFRAY CONVICTION APPALLING CRIMINAL RECORD AT "CROSSROADS"

Citation: Durante, Kurt Russell v R [2008] NSWDC 350
Court: District Court of New South Wales
Date: 8 February 2008
Judge(s): Cogswell SC DCJ

Background

The appellant was convicted in the Local Court at Bega of affray under s 93C of the Crimes Act 1900 (NSW), arising from an incident on 4 November 2006 during the Eden Whale Festival. The Magistrate found that the appellant's contribution to a pre-existing brawl was limited to a single kick, and sentenced him to a fixed term of two months' imprisonment.

The appellant was 27 years old at the time of the appeal. Despite having no history of full-time paid employment, he had recently commenced casual work as a concreter. His criminal record dating back to adulthood included offences of violence, assaults on police, contraventions of apprehended domestic violence orders, and alcohol-related traffic matters, committed almost every year since 1998.

The appellant appealed against the sentence. His solicitor advanced a "crossroads" submission: that despite the appellant's deplorable record, the newly obtained employment represented a genuine turning point, and the court should increase the sentence but suspend it entirely to allow the appellant to maintain that employment.

  • Whether the Magistrate's sentence of two months' fixed-term imprisonment should be confirmed, or whether the District Court should intervene on appeal.
  • Whether, in light of the appellant's extensive criminal history, a suspended sentence was an appropriate exercise of discretion.
  • What conditions, if any, should attach to any suspended sentence.

Decision

Cogswell SC DCJ acknowledged that the Magistrate's sentence was understandable given the finding that participation was limited to one kick, but considered the two-month term low in the circumstances. The judge noted that affray carries a maximum penalty of ten years, reflecting Parliament's view of its seriousness, and that the appellant's record would ordinarily justify dismissing the appeal and confirming the custodial term.

The court was persuaded, however, by the combination of the "crossroads" submission and the appellant's own evidence. The judge accepted the appellant's account of his new employment as genuine, noting that he was impressed by the appellant as a witness. The court also noted, though treated as speculation, that a recently treated hearing impairment may have contributed to the appellant's history of antisocial behaviour.

Before proceeding, the judge administered what is known as a "Parker warning": the appellant was expressly informed that accepting the suspended sentence submission meant risking a term four times longer than the Magistrate had imposed if the bond were breached. The appellant, having taken instructions, maintained the submission.

The court set aside the Magistrate's sentence, imposed a term of eight months' imprisonment, and suspended execution in full. The suspension was conditioned on the appellant entering a good behaviour bond, which included requirements to accept supervision from the NSW Probation and Parole Service and to comply with any directions regarding anger management and alcohol courses.

Orders Made

  • The Magistrate's sentence of two months' imprisonment was set aside.
  • A sentence of eight months' imprisonment was imposed.
  • Execution of the sentence was suspended in full, on the appellant entering a good behaviour bond for eight months commencing 8 February 2008.
  • Bond conditions included: good behaviour; appearance before the court if called upon; notification of any change of address to the Registrar; submission to supervision by the NSW Probation and Parole Service; and compliance with reasonable directions regarding anger management and alcohol treatment.
  • The appellant was directed to report to the Probation and Parole Service at Bega on or before 15 February 2008.

Key Takeaways

  • A "crossroads" submission, supported by credible evidence of a genuine change in circumstances such as first-time employment, can persuade a sentencing court to suspend an increased term even where the offender's criminal record is extensive.
  • Affray under s 93C of the Crimes Act 1900 carries a maximum of ten years' imprisonment; even where participation is found to be limited, the gravity Parliament has attached to the offence is a relevant sentencing consideration.
  • A Parker warning is required where a court is considering increasing a sentence on appeal, even if the increase is to be suspended: the appellant must understand that a suspended term of greater length creates a more significant exposure upon breach than the original custodial sentence did.
  • The District Court's two-year jurisdictional cap when dealing with offences summarily does not diminish the relevance of the statutory maximum in assessing objective seriousness.
  • No error in the Magistrate's approach was identified; rather, the District Court exercised its own fresh sentencing discretion on appeal, resulting in a higher nominal term coupled with full suspension.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93C (offence of affray)
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)(a) (power to determine sentence appeals)

Cases:
- Parker (referenced implicitly in the convention of a "Parker warning" given prior to increasing a sentence on appeal; full citation not provided in the judgment)