Citation: Police v Barlow [2014] NSWLC 1
Court: NSW Local Court
Date: 14 February 2014
Judge: Judge Graeme Henson, Chief Magistrate
Background
In the early hours of 4 July 2013, the offender participated in a sustained group assault on two victims in Bayswater Road, Kings Cross. The offender and three associates attacked two men who had been involved in no more than an exchange of words. The violence lasted four to five minutes and involved punching and kicking one victim while he lay on the road, rendering the other victim unconscious with a blow that caused his head to strike the bitumen.
Both victims sustained significant injuries. One suffered a broken nose, facial lacerations, bruising, and lumps consistent with the delivery of considerable force, and was hospitalised and unable to work for several days. The other required six stitches to a facial laceration. Bystanders were sufficiently alarmed to attempt to intervene and call police.
The offender was charged with affray under s 93C of the Crimes Act 1900. He failed to appear at an initial court date and was subsequently arrested and produced in custody before Chief Magistrate Henson for sentencing on 23 January 2014.
Legal Issues
- Whether the offending fell above the middle range of seriousness for affray
- What discount, if any, was appropriate given the offender's failure to appear and the manner in which proceedings were resolved
- Whether an Intensive Correction Order (ICO) was appropriate or whether full-time imprisonment was warranted
- Whether special circumstances existed justifying a departure from the standard non-parole period ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999
- How the Local Court's jurisdictional sentencing limit of two years affected the sentence
Decision
The Chief Magistrate found the offending fell above the middle range of seriousness for affray. He emphasised that, under s 93C(2) of the Crimes Act 1900, the collective conduct of all four participants must be considered when sentencing any one of them for affray. This meant the offender bore personal responsibility for all injuries inflicted during the incident, including those caused by his associates, regardless of which individual delivered which blow.
The Chief Magistrate applied a 10 per cent sentencing discount on account of the utilitarian value of the way the matter was resolved. Although the offender had failed to appear and had not formally pleaded guilty, his legal representative accepted the agreed statement of facts as confirmed by CCTV footage. The court treated this as functionally equivalent to an acceptance of guilt.
An ICO was rejected as inappropriate. The Chief Magistrate held that the objective seriousness of the offending and the public interest in general deterrence for alcohol-fuelled group violence in the Kings Cross precinct required a sentence of full-time imprisonment. The court noted that the Local Court's two-year jurisdictional maximum could not cause it to treat such offending as minor, and that the appropriate sentence before discount touched the jurisdictional limit.
Special circumstances were found under s 44 of the Crimes (Sentencing Procedure) Act 1999, based on the offender's youth and his need for rehabilitation from drug and alcohol dependence. This justified extending the parole period beyond the standard ratio, resulting in a longer supervisory period upon release.
Orders Made
- The offender convicted of affray
- Sentenced to imprisonment with a minimum (non-parole) period of 9 months, commencing 13 February 2014, with one day's pre-sentence custody taken into account
- Eligible for release on parole from 12 November 2014
- Balance of sentence: 11 months
- Conditions of parole: supervision by Probation and Parole Service, and participation in and successful completion of Drug and Alcohol rehabilitation programmes as directed by Probation and Parole
Key Takeaways
- Under s 93C(2) of the Crimes Act 1900, a person sentenced for affray is held responsible for the totality of violence carried out by all co-participants, not merely their own individual acts. This can significantly affect the objective seriousness of the offence for sentencing purposes.
- A functional acceptance of guilt, demonstrated by a legal representative conceding the agreed facts are accurate, may attract a utilitarian discount even where no formal guilty plea has been entered.
- Full-time imprisonment was found to be the only appropriate sentencing option where group violence was sustained, cowardly, and occurred in a public space, despite the offender's youth and difficult upbringing being recognised as mitigating factors under the principles confirmed in Bugmy v R [2013] HCA 37.
- Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 were established by the combination of the offender's youth and a demonstrated need for drug and alcohol rehabilitation, warranting an extended parole period.
- The Local Court's two-year jurisdictional sentencing limit does not diminish the gravity of serious offending coming before it. Chief Magistrate Henson stated expressly that the court cannot allow its sentencing approach to be distorted by a perception that Local Court matters are inherently minor.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 93A, 93C
- Crimes (Appeal and Review) Act 2001 (NSW), s 4
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 21A, 44
- Criminal Procedure Act 1986 (NSW), s 196
Cases:
- Bugmy v R [2013] HCA 37
- Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154
- Pattalis v R [2013] NSWCCA 171
- R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115
- R v Merrin [2007] NSWCCA 255; (2007) 174 A Crim R 100
- R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Zamagias [2002] NSWCCA 17
- Stevens v R [2007] NSWCCA 152
- Whelan v R [2012] NSWCCA 147