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Local Court 22 November 2010

DPP -v- Schaeffer

[2010] NSWLC 29

Assault & violencePublic order & justice offences
SENTENCE MULTIPLE OFFENDING AFFRAY GENERAL DETERRENCE BREACH OF CONDITIONAL LIBERTY

Citation: DPP v Schaeffer [2010] NSWLC 29
Court: Local Court of New South Wales (Albury)
Date: 22 November 2010
Judge(s): Magistrate Lerve

Background

The offender pleaded guilty to affray and common assault arising from an incident in the early hours of 24 December 2009 outside a licensed premises in Albury. A group of males, including the offender, were escorted from the venue and became involved in a violent confrontation with the victim on the footpath. The victim was ultimately knocked unconscious by another person (Costin), struck his head on the road surface, and suffered catastrophic brain injuries. While the victim lay unconscious, the offender approached and punched him in the head.

Critically, the agreed facts confirmed that the Crown could not attribute any of the victim's serious injuries directly to the offender's conduct. The offender was therefore sentenced only for his own role in the affray and the subsequent assault, not for the devastating consequences caused by Costin.

The new offences also constituted breaches of two bonds imposed by the same Magistrate in June 2009, one a wholly suspended nine-month sentence for common assault and the other a good behaviour bond for larceny. Both bonds required revocation and re-sentencing.

  • What discount applied to the new offences given the guilty pleas, and at what stage were the pleas entered?
  • How should an offender's culpability for affray be assessed where the group's collective conduct was more serious than the offender's individual contribution?
  • Whether the common assault (punching the unconscious victim) warranted a partially cumulative sentence on top of the affray sentence.
  • How to structure the overall sentencing package across four matters (two breach matters and two new offences) in a way that reflected totality while still marking each discrete offence.

Decision

Magistrate Lerve applied a 25% discount for the utilitarian value of the guilty pleas, which the prosecution did not oppose. The pleas were entered following negotiations on 30 August 2010.

On the affray charge, the Magistrate drew on established Court of Criminal Appeal authority (particularly R v Fajka) confirming that each participant in an affray is sentenced for their own role, not for the totality of the group's violence. Because the agreed facts expressly stated that the Crown could not attribute the victim's injuries to the offender, the Magistrate was bound to sentence on that basis, even though the overall incident caused catastrophic harm.

The Magistrate treated the common assault as a discrete and aggravated act. Punching a defenceless, unconscious man after the affray had concluded was characterised as "gratuitous thuggery" that deserved meaningful punishment beyond the affray sentence. Accordingly, the common assault sentence was made partially cumulative rather than wholly concurrent.

On the breach matters, both bonds were revoked and fresh sentences imposed. The Magistrate structured all sentences to commence from the date of arrest (13 January 2010), recognising that the offender had been in custody referable to these matters from that date.

Orders Made

Breach matters:

  • Common assault bond (s 12 bond) revoked; sentenced to a non-parole period of 5 months commencing 13 January 2010, expiring 12 June 2010, with a balance of term of 4 months expiring 12 September 2010.
  • Larceny good behaviour bond revoked; sentenced to a fixed term of 2 months commencing 13 January 2010, expiring 12 March 2010.

Offences of 24 December 2009:

  • Common assault: fixed term of 6 months commencing 13 April 2010, expiring 13 October 2010.
  • Affray: non-parole period of 8 months commencing 13 June 2010, expiring 12 February 2011, with a balance of term of 7 months commencing 13 February 2011, expiring 12 September 2011.

Key Takeaways

  • In sentencing for affray, the Local Court applied the principle that each participant is sentenced for their individual role in the violence, not for the collective harm caused by the group as a whole, consistent with the Court of Criminal Appeal's reasoning in R v Fajka.
  • Where agreed facts expressly exclude a causal link between an offender's conduct and the victim's injuries, the sentencing court is bound to proceed on that basis, regardless of how serious the overall incident was.
  • A 25% guilty plea discount was applied where the prosecution did not oppose it, reflecting the utilitarian value of the plea under the Crimes (Sentencing Procedure) Act 1999.
  • Punching an unconscious and defenceless victim after the primary offence had concluded was treated as a discrete aggravating act warranting a partially cumulative sentence rather than a concurrent one.
  • Revocation of suspended sentences and good behaviour bonds for fresh offending of the same type was treated as a significant aggravating feature, reflecting the breach of conditional liberty the offender had been afforded.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93C (affray), s 61 (common assault)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 9, 12, 21A, 44

Cases:
- R v Fajka [2004] NSWCCA 166
- Pearce v The Queen (1998) 194 CLR 610
- R v Cahyadi [2007] NSWCCA 1
- R v Doan (2000) 50 NSWLR 115
- Bourke v R [2010] NSWCCA 22
- DPP v Cooke [2007] NSWCA 2
- R v AD [2008] NSWCCA 289
- R v Corbett [2008] NSWCCA 42
- R v Elphick [2010] NSWCCA 112
- R v Hersi [2010] NSWCCA 57
- R v Mitchell; R v Gallagher [2007] NSWCCA 296
- R v Nicholson [2010] NSWCCA 80
- R v Wallace [2007] NSWCCA 63
- Attorney General's Reference No. 2 of 2002 [2002] NSWCCA 515
- R v Jones (unreported, NSWCCA, 30 June 1994)