Citation: R v Riley, Nathan [2010] NSWDC 81
Court: District Court of New South Wales
Date: 12 February 2010
Judge(s): Nicholson SC DCJ
Background
The offender, a 21-year-old Aboriginal man from Wellington with no prior criminal history, pleaded guilty to assault occasioning actual bodily harm whilst in company. The offence arose from an incident in the early hours of 15 March 2008, when the offender joined a group attack on a victim, Richard Hutchings, after being told his friend Nathan Ah See was involved in a fight. The offender had consumed a large quantity of alcohol that evening before joining the affray.
The assault was a sustained group attack. The offender and others punched and kicked the victim while he was on the ground in his own driveway, continued the attack after the victim attempted to rise, and at one point threw pot plants at him. The victim's son also arrived and was struck with a fence paling by another participant. The offender's role included kicking the victim back to the ground when he tried to stand.
In addition to the charge before the court, a related affray offence from the same incident was brought forward from the Local Court to be dealt with on a Form 1 (a procedure by which additional offences are acknowledged and taken into account in sentencing without separate conviction).
Legal Issues
- What was the appropriate assessment of the objective seriousness of a sustained group assault involving kicking and punching a victim on the ground?
- What weight should be given to the offender's subjective circumstances, including his youth, lack of prior convictions, good character, alcohol consumption, and rehabilitation prospects?
- Whether a fully suspended sentence was appropriate in light of the competing sentencing considerations of deterrence, community protection, and rehabilitation.
- How to treat the Form 1 affray matter and the procedural step of withdrawing it from the summary jurisdiction.
Decision
The court assessed the objective criminality of the offence as serious. The attack was a group assault on a victim who had retreated to his own home, involved sustained punching and kicking of a person on the ground, and was joined by the offender without any inquiry into the underlying dispute. The victim suffered substantial soft tissue damage. The court acknowledged that the use of alcohol did not excuse the conduct but was a relevant contextual factor.
Against that objective seriousness, the court weighed significant subjective factors in the offender's favour. These included his age of 21 at the time, the absence of any prior criminal record, his completion of Year 12, a reasonable work history, and his guilty plea. The court accepted that his heavy intoxication on the night, while no excuse, was relevant to understanding his participation in the group violence.
The court also considered the offender's prospects for rehabilitation to be genuine and concluded that a non-custodial outcome, with structured conditions, was appropriate. The Form 1 affray matter was taken into account in the overall sentencing exercise, and the Local Court charge was withdrawn from the summary jurisdiction for that purpose.
Relying on the sentencing principles in R v Cuthbert, R v Rushby, and R v Hayes, the court imposed a twelve-month term of imprisonment but suspended it under section 12 of the Crimes (Sentencing Procedure) Act 1999, subject to a good behaviour bond with conditions specifically targeting the offender's alcohol use.
Orders Made
- The offender was convicted of assault occasioning actual bodily harm whilst in company.
- The affray matter was taken into account on the Form 1.
- An overall sentence of 12 months imprisonment was imposed and suspended, conditional upon the offender entering a section 12 good behaviour bond under supervision of Probation and Parole for 12 months.
- The offender was required to maintain full abstinence from alcohol for 6 months, with any resumption of drinking to be discussed with Probation and Parole and subject to an agreed drinking strategy.
- The offender was required to submit to random breath testing during the bond period.
- Refusal of service by a publican due to intoxication within the first 6 months was deemed a breach of the bond.
- The offender was required to accept counselling from Probation and Parole, including alcohol and, if appropriate, drug counselling.
Key Takeaways
- The District Court confirmed that a sentencing judge is not bound by an agreed set of facts tendered by the parties; such agreement limits the available material but does not relieve the judge of the independent fact-finding obligation.
- Community protection was identified as the primary focus of sentencing, consistent with the longstanding principles in Cuthbert, Rushby, and Hayes, with all other factors weighed against that imperative.
- A fully suspended sentence remained available even for a serious group assault, where the offender had no prior record, demonstrated genuine rehabilitation prospects, and offered strong subjective circumstances.
- Alcohol-specific conditions attached to a section 12 bond, including mandatory abstinence, random breath testing, and a requirement to engage with Probation and Parole before resuming drinking, were used as a structured response to the role intoxication played in the offending.
- Under a section 12 suspended sentence bond, breach carries significantly less judicial discretion than a section 9 bond: absent special circumstances, a breach ordinarily requires revocation of the suspension and imposition of the term of imprisonment.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 166
Cases
- R v Hearne (2007) 124 A Crim R 457
- R v Cuthbert [1967] 2 NSWR 329
- R v Rushby [1977] NSWLR 597
- R v Hayes [1984] 1 NSWLR 740