Citation: R v Feeney, Ryan [2008] NSWDC 355
Court: District Court of New South Wales
Date: 8 February 2008
Judge(s): Nicholson SC DCJ
Background
The offender, a 23-year-old man of substantial build (approximately 6'2" and 90-95 kilograms), lived in a neighbouring unit to the two victims at a block of units in Toongabbie. On 28 November 2006, after a period of heavy drinking with his father during which "emotional issues" arose, he went to the victims' unit and began banging on their front door. His father had asked him to collect money from the neighbours to buy more alcohol, a request that appeared to trigger his anger.
Once inside the unit, the offender struck the female victim on the right side of the face with a closed fist after asking if she "wanted to fight." He then confronted the male victim, demanding he get up and fight. When the male victim fled the building and ran approximately 250 metres down a nearby lane, the offender gave chase, caught him, pushed him against a wire fence, and punched him. The assault ended only when the female victim arrived and pleaded with the offender to stop.
An indictment originally containing five charges, including breaking and entering with intent and assault occasioning actual bodily harm, was presented. The offender pleaded guilty to two counts of common assault, and the Crown accepted those pleas in full satisfaction of the indictment.
Legal Issues
- What was the objective seriousness of the two common assault offences, assessed by comparison with offences of a similar kind?
- What subjective circumstances were relevant to the sentencing exercise, including the offender's personal background, prior offending, and prospects of rehabilitation?
- What sentencing disposition was appropriate, having regard to both the objective criminality and the subjective features of the case?
Decision
The court assessed the objective criminality as sitting within the mid-range of seriousness for assault offences, though not at the upper end. Several aggravating features were identified: the assault on the female victim was cowardly given the significant size disparity; the assault on the male victim was ongoing and required active pursuit to complete; and the violence against both victims was gratuitous from their perspective, as the offender's anger appeared directed at his father or at his father's request rather than at the victims themselves.
The court accepted that the offender's background contained genuine mitigating circumstances. He had grown up in a disrupted family environment, had been exposed to violence and unfaithfulness by a stepfather figure, had experienced a prior sexual assault by an older brother that remained an unresolved source of distress, and had lost his closest family figure (his maternal grandmother) in recent years. His intoxication at the time, while not excusing the conduct, was relevant context. His current relationship with a supportive and pro-social girlfriend was noted positively.
Prior entries on his antecedents for resisting and assaulting police officers, and for offensive language, indicated a pattern involving alcohol. The court recognised that alcohol and unresolved emotional trauma appeared to be underlying contributors to the offending. The guilty pleas were taken into account in the sentencing exercise.
Weighing all these factors, the court concluded that a custodial sentence was not warranted and that a supervised good behaviour bond under section 9 of the relevant sentencing legislation, with targeted conditions addressing alcohol, anger management, and the prior sexual assault trauma, was the appropriate disposition.
Orders Made
- The offender was convicted on both counts of common assault.
- For each offence, the offender was ordered to enter into a good behaviour bond for a period of 18 months, subject to the following conditions:
- To be of good behaviour and not commit any offence (traffic, assault, or otherwise) during the bond period.
- To notify the registry of his current address and any change of address within seven days.
- To accept supervision by the Probation and Parole Service, including counselling, treatment, or programs directed by them in relation to anger management and alcohol abuse.
- To attend counselling regarding the prior sexual assault and related emotional distress, and to provide proof of attendance to the Probation and Parole Service at least once per month for a period of six months.
- The offender was directed to report to the Probation and Parole Service by 4:00 pm on the following Wednesday.
Key Takeaways
- The District Court treated the ongoing nature of the assault against the male victim, including active pursuit of a fleeing person, as a distinct aggravating feature that elevated the seriousness of that offence above a single impulsive act.
- Assaulting a female victim carries particular weight in the sentencing calculus, especially where a substantial size and strength advantage is present, even where only a single blow is involved.
- Where an offender's anger is displaced onto victims who bear no responsibility for the cause of that anger, the gratuitous and opportunistic character of the violence is relevant to objective seriousness.
- Unresolved personal trauma, a disrupted upbringing, and an alcohol-affected state at the time of offending can constitute genuine subjective mitigating factors without excusing the criminal conduct.
- A section 9 good behaviour bond with tailored supervisory conditions, including mandatory counselling for underlying psychological issues, was available as the sentencing outcome for mid-range common assault where the offender's subjective circumstances and rehabilitation prospects were sufficiently favourable.
Legislation and Cases Referenced
Legislation:
- Section 9 bond (reference to the sentencing regime under the Crimes (Sentencing Procedure) Act 1999 (NSW), though not expressly named in the judgment)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA, referenced in relation to the reading of rights at arrest)
Cases cited: None cited in the judgment text or metadata.