Citation: R v TAANI, Otukinekina [2016] NSWDC 394
Court: District Court of New South Wales
Date: 31 March 2016
Judge: Judge S Norrish QC
Background
The offender, a security guard employed at a tavern in St Leonards, pleaded guilty to recklessly causing grievous bodily harm to a patron in the early hours of 2 March 2008. CCTV footage captured the offender escorting the patron toward an exit after collecting his jacket, then punching him multiple times to the head when the patron resisted being ejected. The offender's brother, who was off-duty at the time, became involved in the confrontation.
The victim sustained comminuted fractures to both sides of his jawbone, lost two teeth, and required multiple surgeries including the insertion of four plates around his jaw. He was hospitalised for three days and underwent further procedures extending into May 2008.
The offence was committed in 2008 but the offender was not arrested until November 2014, when he returned to Australia from New Zealand where he had primarily lived since departing Australia on 5 March 2008, three days after the assault. The matter was therefore a historical offence by the time it came before the District Court for sentencing in 2016.
Legal Issues
- What discount applied for the early guilty plea, and at what rate?
- How should the significant delay between the offence (2008) and sentencing (2016) affect the sentence?
- Whether the offender's departure to New Zealand shortly after the offence should be treated as flight from justice.
- How to assess objective seriousness, given the victim's provocation and the offender's professional training in managing intoxicated patrons.
- Whether a departure from the standard non-parole period of four years was warranted, and on what basis.
- How to structure the non-parole period relative to the balance of sentence for an offender with no prior criminal history.
Decision
Guilty plea discount. The court found the offender had pleaded guilty at the first reasonable opportunity and applied a 25% discount to the sentence, consistent with the guideline in R v Thomson; R v Houlton.
Objective seriousness and provocation. The court accepted that the victim had offered some provocation by resisting ejection from the premises. However, the court found this was substantially outweighed by the offender's response. The offender was professionally trained to handle intoxicated patrons and was expected to exercise a higher degree of restraint than an ordinary person. The severity of the injuries, visible in CCTV footage, reflected a disproportionate use of force.
Departure from New Zealand. The court considered whether the offender's departure to New Zealand three days after the assault constituted flight from justice. The court treated this as a matter requiring careful assessment rather than automatic inference of guilt, given the delay in charging the offender and the circumstances of his brother's case being dismissed at the Local Court. The court took account of the offender's eventual voluntary return to Australia and the impact of the lengthy delay on the sentence to be imposed.
Sentence structure. Taking into account the offender's lack of prior criminal history at the time of the offence, the delay between the offence and sentencing, the early guilty plea, the offender's status as a foreign national, and the need to assist reintegration into community life, the court imposed a sentence below the standard non-parole period of four years. The court also backdated the commencement of the sentence to 24 March 2016, reflecting that the offender had attended for sentencing on that date but the matter could not proceed through no fault of his own.
Orders Made
- The offender was convicted of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW).
- Sentenced to a non-parole period of one year and one month, commencing 24 March 2016.
- Directed to be released to parole on 23 April 2017.
- Balance of sentence: one year and two months, expiring 23 June 2018.
- Conditions of parole to be determined by the Parole Authority.
Key Takeaways
- A 25% discount for a guilty plea entered at the first reasonable opportunity remains consistent with the Thomson and Houlton guideline, applied here to a historical offence committed nearly eight years before sentencing.
- Where an offender holds professional qualifications in managing intoxicated or difficult patrons, the sentencing court treated that training as an aggravating factor: the expectation of restraint was higher than for a member of the general public.
- Significant delay between an offence and sentencing is a relevant consideration that can moderate the sentence ultimately imposed, particularly where the delay is not entirely attributable to deliberate evasion by the offender.
- The District Court treated the offender's departure from Australia shortly after the assault as a circumstance requiring individual assessment, rather than automatically inferring that it constituted consciousness of guilt.
- Backdating a sentence to the originally listed sentencing date can be appropriate where a matter could not proceed through no fault of the offender, to avoid penalising the offender for court administrative delay.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 35(2) (recklessly causing grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 44 (non-parole period)
- Confiscation of Proceeds of Crime Act 1989 (NSW)
Cases:
- R v Thomson; R v Houlton [2000] 49 NSWCCA 309 (guideline judgment on guilty plea discounts)
- Muldrock v The Queen (2011) 244 CLR 120 (standard non-parole periods)
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Bloomfield (1998) 44 NSWLR 734
- R v Dungay (2001) 126 A Crim R 216
- R v Thawer [2009] NSWCCA 158
- R v Todd (1982) 2 NSWLR 517
- R v Zamagias [2002] NSWCCA 17
- Way v R (2004) 60 NSWLR 168