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District Court 8 March 2017

R v Kbayli

[2017] NSWDC 197

Assault & violencePublic order & justice offences
CRIME PLEAS OF GUILTY

Citation: R v Kbayli [2017] NSWDC 197
Court: District Court of New South Wales
Date: 8 March 2017
Judge: Neilson DCJ

Background

The offender pleaded guilty to three offences arising from a brawl at the Sydney Opera House in the early hours of 8 September 2013. The events began inside the Opera Bar, where the offender punched a member of a birthday group, triggering a wider fight. After security separated the groups, the offender led members of his group in pursuit of the other group into the Opera House carpark, where further violence ensued.

The offender was the only participant who admitted to possessing a knife on the night. During the carpark incident, he was seen producing a knife and advancing toward members of the other group. One victim, Isaac Parry, suffered actual bodily harm during that second confrontation.

The matter was protracted. Proceedings began shortly after the events and involved 20 appearances in the Local Court before the offender was committed for sentence. Two co-offenders, Chambour and Khallouf, had been sentenced separately by the same judge in December 2016.

  • What guilty plea discount applied to each of the three offences, given the different timing of the pleas?
  • What was the appropriate sentence for two counts of affray (contrary to s 93C of the Crimes Act) and one count of assault occasioning actual bodily harm in company (contrary to s 59(2))?
  • Whether a suspended sentence was available and appropriate in light of the offender's rehabilitation while on bail.

Decision

Neilson DCJ applied a 25 per cent discount for the utilitarian value of the guilty plea to each affray count. The plea to the first affray (in the Opera Bar) was entered in the Local Court before committal, and while not at the earliest opportunity, it warranted the 25 per cent discount, which the Crown conceded. For the second affray, the judge accepted the explanation from the offender's counsel that he had not appreciated the Crown was alleging two distinct affrays, and extended the same 25 per cent discount on that basis.

The plea to assault occasioning actual bodily harm in company was entered on the third day after a jury trial was due to commence, following plea bargaining from a more serious charge. The judge found no evidence that the offender had agreed to plead guilty to that charge at any earlier point, and accordingly allowed only a 10 per cent discount for that count.

On sentence, the judge took into account that these were the offender's first substantive criminal offences and that he had made genuine efforts at rehabilitation while on bail. The judge indicated he would have imposed 18-month sentences for each affray, running with substantial concurrency, had they been sentenced separately. An aggregate sentence of 18 months was imposed for the two affray counts, with execution suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999. The sentence for the assault occasioning actual bodily harm was fixed at two months and 13 days, dated from 8 September 2013, which had already been served.

Orders Made

  • For the two affray counts (Opera Bar and Opera House carpark): convicted and sentenced to a term of imprisonment of one year and six months, with execution suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, and the offender released on a good behaviour bond for one year and six months on conditions including: appearing before the court if called upon; being of good behaviour; residing at a specified address; notifying the Registrar of any change of address by prepaid registered post; and being subject to the direction and supervision of Community Corrections.
  • For the assault occasioning actual bodily harm in company: convicted and sentenced to imprisonment for two months and 13 days, dated from 8 September 2013 and expiring 21 November 2013 (effectively already served).

Key Takeaways

  • A guilty plea discount of 25 per cent was available even where the plea was not entered at the earliest opportunity, provided it was entered before committal and the Crown conceded the discount.
  • Where a defendant's counsel credibly explains that the existence of a second, distinct charge was not appreciated, a sentencing court may extend the same utilitarian plea discount to that second charge as applied to the first.
  • Late pleas entered only after plea bargaining, and with no evidence of an earlier agreement to plead guilty, attracted a reduced discount of only 10 per cent for utilitarian value.
  • Demonstrated rehabilitation while on bail remained a significant mitigating factor, contributing to the decision to suspend the sentence rather than impose immediate full-time custody.
  • Under s 12 of the Crimes (Sentencing Procedure) Act 1999, a suspended sentence requires the offender to enter a good behaviour bond; in this case, the bond included supervision by Community Corrections, enabling monitoring of any further rehabilitation requirements such as anger management or drug and alcohol programs.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 59(2) (assault occasioning actual bodily harm in company) and s 93C (affray)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences)

Cases
- R v Chambour; R v Khallouf (No 5) [2016] NSWDC 379
- R v Dickinson [2004] NSWCCA 452
- R v Hampton [1999] NSWCCA 341
- R v Reid [2005] NSWCCA 309; (2005) 155 A Crim R 428
- R v Watt (unreported, 2 April 1997, NSWCCA)