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District Court 16 October 2012

R v Hendra

[2012] NSWDC 198

Assault & violence
CRIMINAL LAW SENTENCE COMMON ASSAULT SECURITY GUARD VULNERABLE VICTIM LACK OF REMORSE

Citation: R v Hendra [2012] NSWDC 198
Court: District Court of New South Wales
Date: 16 October 2012 (sentenced 26 October 2012)
Judge(s): Berman SC DCJ

Background

The offender was employed as second-in-charge of security at a licensed venue in Sydney. The victim had been punched without provocation by an ex-girlfriend inside the venue, ejected by security guards, and then subjected to a severe beating by multiple security guards both outside and inside the premises. By the time the victim reached the basement area of the venue, he had sustained horrific facial injuries and was barely able to sit upright on a stool.

The offender, who played no part in the earlier violence, then kicked the victim once to the stomach or chest area while the victim was seated and effectively helpless. At trial, the offender claimed he had acted in self-defence after the victim spat blood at him. The jury rejected that defence and convicted him of common assault.

The sentencing proceedings addressed the appropriate penalty for that single kick, which formed the sole basis of the conviction.

  • What factual basis was appropriate for sentencing, given the offender's acquittal on the more serious charge of assault occasioning actual bodily harm in company?
  • How should the offender's complete lack of remorse and failure to acknowledge his criminality affect the sentence?
  • Whether the circumstances warranted a full-time custodial sentence for an offence of common assault, which does not ordinarily attract imprisonment.
  • Whether special circumstances existed justifying an adjustment to the standard ratio between non-parole period and head sentence.

Decision

The court rejected the offender's self-defence claim consistent with the jury's verdict, and went further: it was satisfied beyond reasonable doubt that if the victim did spit blood, he did so only in response to being spat on by another guard, a fact the offender well knew. The offender was found to have acted out of anger rather than any protective instinct, partly because the victim had been involved in an earlier altercation that left a colleague with a swollen eye.

On the factual basis for sentencing, the court accepted that the jury's acquittal on the "in company" charge indicated the jury was not satisfied the offender was acting in company at the precise moment of the kick. However, the court made clear that this did not require it to ignore what followed. After delivering the kick, the offender did nothing to stop the further savage beating of the victim and directed his attention instead to the welfare of his colleagues.

The court characterised this as one of the worst examples of common assault it was possible to contemplate. The victim was already severely injured and entirely defenceless. The absence of any actual bodily harm caused directly by the kick was not treated as a mitigating factor, and the fact that the offence was unplanned carried limited weight given the gravity of the circumstances.

The offender's persistent lack of remorse, and his apparent belief that he was the true victim of a politically motivated prosecution, weighed heavily against him. A full-time custodial sentence was imposed. Because this would be the offender's first time in prison, the court made a finding of special circumstances, resulting in a non-parole period of nine months against a head sentence of eighteen months.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of nine months, commencing 26 October 2012 and expiring 25 July 2013.
  • The head sentence was set at eighteen months.
  • The offender was to be released to parole on 25 July 2013.

Key Takeaways

  • A single kick to a severely injured and defenceless victim can constitute one of the worst categories of common assault, justifying a full-time custodial sentence even where that outcome is unusual for the offence.
  • The District Court held that an acquittal on a more serious "in company" charge does not prevent the sentencing court from having regard to what occurred immediately after the act for which the offender was convicted, particularly when assessing remorse and moral culpability.
  • Where no plea of guilty is entered and no remorse is expressed, a sentencing court may note that there is no basis on which to conclude the offender would behave differently if a similar situation arose, though the court here declined to sentence expressly on that basis.
  • The offender's occupational role as a security guard was treated as an aggravating feature: those employed to control violence for the protection of others carry a heightened responsibility not to inflict it.
  • A finding of special circumstances to adjust the non-parole period ratio remains available to a first-time prisoner even where the offending is serious and remorse is entirely absent.

Legislation and Cases Referenced

No specific legislation or cases were cited in the judgment text or metadata.