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District Court 25 May 2017

R v Russell Edward Horne

[2017] NSWDC 121

Assault & violence

Citation: R v Russell Edward Horne [2017] NSWDC 121
Court: District Court of NSW
Date: 25 May 2017
Judge(s): Mahony SC DCJ

Background

The offender, a 60-year-old man, drove his adult son and a third man, Sheather, to the home of the victim in Young, NSW, on the night of 19 September 2015. The group had travelled to the address believing the victim had made threats against the offender's son and daughter. Upon arriving, the son and Sheather confronted and violently assaulted the victim at his front door, while the offender remained at the bottom of the stairs.

The victim sustained a fractured right tibia requiring surgical correction with steel plates and screws, as well as facial injuries and injuries to his ribs, stomach and kidneys. Sheather was present with a knife during the attack. The offender ultimately called the others off when the victim was on the ground screaming in pain.

The offender pleaded guilty to recklessly inflicting grievous bodily harm in company, contrary to section 35(1) of the Crimes Act 1900, on the day before his trial was due to commence. His son, Horne Jnr, had separately pleaded guilty in the Young Local Court to the lesser offence under section 35(2) and received a nine-month suspended sentence.

Legal Issues

  • What was the appropriate finding as to the offender's physical role in the assault, given disputed facts about whether he pushed the victim into the handrail?
  • What was the objective seriousness of the offending, given the offender's more limited involvement compared with the two co-offenders?
  • What discount applied to the late guilty plea?
  • Whether the parity principle applied, and if so, how it operated, given that the offender's son was convicted of a different but related offence and sentenced in the Local Court?
  • What was the appropriate sentence, having regard to general deterrence, the offender's personal circumstances, and the principle against taking the law into one's own hands?

Decision

Issue 1: The offender's physical role

The court found that the offender had no physical involvement in the attack on the victim (at [48]). Specifically, the court found that the push of the victim into the handrail was carried out by Horne Jnr alone or in conjunction with Sheather, not by the offender (at [49]). The victim's evidence in cross-examination acknowledged uncertainty about whether the offender had been involved in the push, and the offender consistently denied any physical contact.

Issue 2: Objective seriousness and facilitation

Despite his lack of direct physical involvement, the court found the objective seriousness of the offending to be only just below the mid-range for a section 35(1) offence (at [48]). The offender drove the co-offenders to the victim's home, and as a joint criminal enterprise, he bore responsibility for their actions. The court rejected the submission that the offender acted as a "peacemaker," finding instead that he had facilitated the attack by transporting the co-offenders to the scene and had not intervened at any point during the assault (at [50]). The court also emphasised that if the offender genuinely feared for his son's safety, the appropriate course was to contact police rather than to attend the victim's home in a group.

Issue 3: Late guilty plea

The guilty plea was entered the day before trial. The court applied a minimal utilitarian discount of 5%, reflecting the limited benefit the plea provided to the administration of justice at such a late stage (at [52]).

Issue 4: Parity with the co-offender's sentence

The court applied the parity principle, drawing on the High Court's decision in Green v R (2011) 244 CLR 462, which establishes that parity is a substantive rather than merely formal principle, grounded in equality before the law (at [52]). The court held that parity can apply even where co-offenders are charged with different offences arising from the same criminal conduct. Here, section 35(1) and section 35(2) are very similar, the key difference being the "in company" aggravating element in the former. The court found that a significantly more severe penalty than the nine-month suspended sentence received by Horne Jnr would cause a justifiable sense of grievance, while acknowledging the offender's criminal history as a differentiating factor, though one discounted by over eleven years of crime-free conduct (at [52]).

Issue 5: Sentence

The court imposed a 12-month term of imprisonment, suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999, with a 12-month good behaviour bond (at [55]-[56]). The court emphasised general deterrence as an important sentencing consideration, noting that courts must send a clear message that vigilante conduct is unacceptable and will attract severe penalties (at [54]).

Orders Made

  • The offender was convicted of recklessly inflicting grievous bodily harm in company, contrary to section 35(1) of the Crimes Act 1900.
  • Sentenced to 12 months imprisonment, suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999.
  • Required to enter into a bond to be of good behaviour for a period of 12 months from the date of sentence.

Key Takeaways

  • The District Court confirmed, following Green v R (2011) 244 CLR 462, that parity is a substantive principle applying to co-offenders charged with different offences arising from the same criminal conduct, with the scope for its application diminishing as the difference in seriousness of the charged offences increases (at [52]).

  • Facilitating an assault by driving co-offenders to the scene constituted sufficient involvement to ground liability as a joint criminal enterprise participant under section 35(1), even where the offender had no physical contact with the victim (at [48]).

  • Calling co-offenders away from a victim at the conclusion of an attack does not amount to acting as a "peacemaker" for sentencing purposes where the offender had already facilitated the attack and never intervened during it (at [50]).

  • A guilty plea entered the day before trial attracted only a 5% utilitarian discount, reflecting the minimal practical benefit provided to the justice system at that late stage (at [52]).

  • General deterrence carries significant weight in sentencing for group assaults motivated by vigilante-style grievances, with the court explicitly stating that those who take the law into their own hands should expect severe penalties (at [54]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Proceure) Act 1999

Cases
- Green v R (2011) 244 CLR 462