Citation: R v Mifsud [2010] NSWDC 278
Court: District Court of New South Wales
Date: 24 September 2010
Judge(s): Berman SC DCJ
Background
The offender pleaded guilty to two offences: assault occasioning actual bodily harm (in company) and receiving stolen property, carrying maximum penalties of seven and ten years respectively. The charges arose from an incident on 23 June 2008 in which the offender and two companions attended the complainant's home, where all three men subjected the complainant to a sustained and serious physical assault. The complainant's wallet was later found in the offender's possession.
The offender had previously been convicted of robbery in company after a trial, but that conviction was overturned on appeal and a new trial ordered. Rather than proceed to a new trial, the offender entered guilty pleas to the lesser charges of assault occasioning actual bodily harm in company and receiving.
The offender had a significant history of alcohol and cannabis use, as well as a prior criminal record that included armed robbery offences from 1993. More recently, he had completed a residential rehabilitation program at Foundation House and had been abstaining from alcohol.
Legal Issues
- What sentence was appropriate for the assault occasioning actual bodily harm (in company) and receiving offences, having regard to the objective seriousness of the offending and the offender's rehabilitation efforts?
- How should the court apply the rule in R v De Simoni when sentencing for lesser offences where the underlying facts disclosed a more serious offence?
- Whether deferral of sentence under s 11 of the Crimes (Sentencing Procedure) Act 1999 was appropriate to allow the offender to demonstrate rehabilitation before final sentencing.
Decision
Berman SC DCJ declined to sentence the offender immediately, finding that the case was genuinely poised between two outcomes: a further period of custody (given the objective seriousness of the offending) and a non-custodial disposition (if rehabilitation could be demonstrated). The court characterised the assault as sustained and serious, rejecting the defence submission that it fell in the middle of the range. The complainant had been attacked in his own home after asking the men to leave, was held down, kicked while on the ground, and had told his attackers he had a heart condition.
On the De Simoni question, the court was required to sentence only for the offences to which the offender had pleaded guilty. Because the facts could otherwise have supported a robbery in company charge, the court sentenced on the basis that the wallet had been taken by another man without the offender's knowledge and later handed to him, thereby avoiding any breach of the rule against sentencing on the basis of a more serious offence for which the offender was not convicted.
The court found that the offender had made early but not yet demonstrated rehabilitation. He had completed Foundation House, was abstaining from alcohol, and a psychiatrist had recommended ongoing psychiatric treatment. Because whether rehabilitation was genuine and lasting remained untested, the court deferred sentence to June 2011 under s 11 of the Crimes (Sentencing Procedure) Act 1999, imposing detailed bail conditions focused on sobriety, counselling, and supervision.
The court was explicit that compliance with bail conditions would make a non-custodial outcome likely, while breach would make a return to custody almost certain and could result in a heavier sentence than would have been imposed on the day.
Orders Made
- Sentence deferred under s 11 of the Crimes (Sentencing Procedure) Act 1999
- Bail granted subject to conditions including:
- Complete abstinence from alcohol and illegal drugs
- Attendance at AA meetings at least once per week
- Weekly counselling at Foundation House (subject to counsellor recommendations)
- Referral to and treatment by a psychiatrist as directed
- Supervision by the Probation and Parole Service, including regular drug and alcohol testing, and participation in any required programs
- Pre-sentence report ordered for the return date
- Matter adjourned to 24 June 2011 for sentence
- Transcript of remarks ordered
Key Takeaways
- The District Court applied the De Simoni principle by restricting its factual findings to those consistent with the offences charged, treating the wallet as having been received rather than stolen, even though the broader facts would have supported a robbery in company finding.
- Deferral of sentence under s 11 of the Crimes (Sentencing Procedure) Act 1999 is available where the court identifies a genuine question about the offender's capacity for rehabilitation that further time and supervised conditions could answer.
- Objective seriousness sets a floor for the sentencing exercise: even where rehabilitation is genuine, the court confirmed that a sentence must still reflect the gravity of the offending conduct.
- Early but undemonstrated rehabilitation can support deferral rather than immediate sentencing, but the court made clear that a failure to comply with bail conditions during the deferral period can itself become an aggravating factor at the eventual sentence hearing.
- A sustained assault in a complainant's home, involving multiple offenders, continuing after a request to leave, and targeting a complainant who disclosed a medical vulnerability, was assessed as beyond the middle of the objective range for assault occasioning actual bodily harm.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11 (deferral of sentence)
Cases:
- R v De Simoni (1981) 147 CLR 383 (High Court rule against sentencing on the basis of a more serious offence for which the offender was not convicted)