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District Court 15 July 2016

R v CHARNOCK

[2016] NSWDC 429

Assault & violenceDrugsPublic order & justice offences
CRIMINAL

Citation: R v Charnock [2016] NSWDC 429
Court: District Court of New South Wales
Date: 15 July 2016
Judge: Judge S Norrish QC

Background

The offender, Daniel Charnock, pleaded guilty to a serious assault arising from a violent incident in Queanbeyan. His sentencing was dealt with alongside two co-accused, Matthew Davis and Rebecca Smith, whose sentences had been delivered on 10 June 2016. The court had previously made findings of fact relevant to all three offenders.

At the time of the assault, Charnock was on bail in relation to separate, serious drug supply offences. He had subsequently been sentenced by Judge English in December 2015 to six years and nine months imprisonment with a four-year non-parole period for those drug offences, commencing 22 August 2014. The current sentencing exercise therefore required the court to impose a sentence to be served cumulatively upon that existing term.

The court found that Charnock's involvement in the assault was unpremeditated. He had initially attempted to separate the victim from an attack by Davis, but became an increasingly active and aggressive participant as the confrontation escalated. He expressed genuine remorse, acknowledged the permanent impact on the victim, and was assessed by Community Corrections as displaying meaningful insight.

  • How to structure a sentence for a less serious offence when a longer, pre-existing custodial sentence was already in place
  • Whether committing the offence while on bail constituted a relevant aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999
  • How the standard non-parole period applied given the court's assessment of the objective seriousness of the offending
  • What weight to give to parity considerations in light of the sentences imposed on co-offenders Davis and Smith
  • How to treat the Form 1 matter (a separate assault) in the overall sentencing exercise

Decision

Judge Norrish assessed the objective seriousness of Charnock's offending as slightly below that of Davis, having regard to Charnock's initial attempt at peacemaking before he became an active participant. The court accepted that his involvement was impulsive and driven by a misplaced sense of loyalty to his friend, rather than any premeditated intention to harm the victim.

The court identified committing the offence while on bail as a statutory aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. While the nature of the bail offences (drug supply) was quite different from the assault, the breach of conditional liberty remained a significant sentencing consideration.

A practical structural difficulty arose because the sentence warranted by the current offending was shorter than the sentence already being served. Judge Norrish observed that, in the ordinary course, a sentencer would impose the lesser sentence first and accumulate the greater upon it. Here, however, that sequence was reversed. The court resolved this by ordering the new sentence to commence on 22 August 2018, following the expiry of the non-parole period under Judge English's sentence.

The Form 1 matter (an associated assault) was treated as having limited independent impact on the assessment of objective seriousness, consistent with the approach taken for one of the co-accused. The court noted it was an offence incidental to the principal offending and gave it no substantial independent weight.

Orders Made

  • Charnock convicted of the principal offence (taking into account the Form 1 matter)
  • Sentenced to a non-parole period of nine months, commencing 22 August 2018 and expiring 21 May 2019
  • Balance of sentence fixed at two years and five months, expiring 21 October 2021
  • Eligible for release to parole on 21 May 2019, subject to the Parole Authority (the total effective sentence exceeding three years precluded a judicial direction for automatic parole release)
  • Effective total sentence across both matters: seven years and three months
  • Non-parole period as a proportion of total sentence: approximately 66 per cent
  • Backup charges withdrawn and dismissed

Key Takeaways

  • Committing an offence while on bail is a statutory aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, and the District Court treated it as a significant consideration even where the bail offences were of a different character to the index offence.
  • Where a sentencer must impose a shorter sentence on top of a longer pre-existing term, the structural approach requires careful attention to commencement dates so that the new sentence takes effect in proper sequence after the earlier non-parole period.
  • Unpremeditated, impulsive involvement in a joint criminal enterprise does not eliminate culpability, but it is a relevant consideration in assessing objective seriousness relative to co-offenders.
  • A Form 1 offence that is merely incidental to the principal offending will not necessarily make a substantial independent contribution to the assessment of objective seriousness, consistent with the Court of Criminal Appeal's guideline approach.
  • Genuine remorse, limited prior criminal history, strong family support, and demonstrated insight in custody are all capable of operating as mitigating factors, though alcohol intoxication was explicitly rejected as any form of mitigation for violence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2) (aggravating factors, including breach of conditional liberty)

Cases
- Muldrock v The Queen [2011] HCA 39 (standard non-parole periods)
- R v Astill (1992) 63 A Crim R 148 (sentencing principles, referenced in context of parity and related matters)