Citation: R v Garth (No 2) [2017] NSWDC 471
Court: District Court of New South Wales
Date: 8 December 2017
Judge: Townsden DCJ
Background
At a 21st birthday party in Rooty Hill in the early hours of 3 May 2014, the offender attended uninvited with his girlfriend. After a confrontation outside the premises, he punched the deceased in the side of the face with a closed fist. The deceased fell immediately, never regained consciousness, and died the following day.
A jury found the offender guilty of assault occasioning death while intoxicated under s 25A(2) of the Crimes Act 1900 (NSW). At the time of the punch, the offender had a blood alcohol reading of 0.185 grams per 100 millilitres. The deceased, by contrast, was described by witnesses as affected by alcohol but not intoxicated, and had approached the offender with open palms in what witnesses characterised as an attempt to calm the situation.
Following the verdict, two further charges were referred for determination by the same judge: common assault on Daniel Crimi (who had attempted to restrain the offender after the punch), and affray. The offender pleaded not guilty to both. Both were resolved on the evidence already adduced at trial.
Legal Issues
- What findings of fact were consistent with the jury's verdict on the primary offence?
- Were the section 166 offences of common assault and affray established beyond reasonable doubt?
- What sentence was appropriate for the primary offence, given the statutory minimum non-parole period of 8 years under s 25B of the Crimes Act 1900?
- Did the relationship between the mandatory minimum non-parole period and the balance of term create any inconsistency with s 44(2) of the Crimes (Sentencing Procedure) Act 1999?
- Were there aggravating or mitigating factors, including breach of conditional liberty and special circumstances, that affected the sentence?
Decision
On the facts, His Honour rejected the offender's suggestion that the deceased had grabbed him forcefully around the throat or collar. Witness evidence established that the deceased had approached with open palms and had not posed a genuine threat. The offender was found to have been aggressive, had removed his shirt, declared he would "take everyone on," and delivered a single powerful punch that caused fatal injuries.
On the section 166 matters, His Honour was satisfied beyond reasonable doubt that the offender had swung punches at Daniel Crimi after the fatal punch, and that this was not done in self-defence. The offender was convicted of common assault. The affray conviction followed from the offender's broader threatening conduct in a public place, which was assessed as towards the lower end of objective seriousness given that the offender was being restrained at the time.
For the primary offence, His Honour noted that the mandatory minimum non-parole period of 8 years under s 25B of the Crimes Act effectively constrained the structure of the sentence. Because the minimum non-parole period was 8 years, the resulting balance of term was necessarily less than one third of that period. His Honour held this was not inconsistent with s 44(2) of the Crimes (Sentencing Procedure) Act 1999, which sets a ceiling, not a floor, on the balance of term.
His Honour sentenced the offender to 10 years' imprisonment for the primary offence, with a non-parole period of 8 years. The sentences for common assault and affray were partially accumulated on earlier sentences but directed to run concurrently with the sentence for assault occasioning death, as all offences arose from the same episode.
Orders Made
- Common assault: convicted and sentenced to 6 months' imprisonment, commencing 3 August 2014.
- Affray: convicted and sentenced to 9 months' imprisonment, commencing 3 August 2014.
- Assault occasioning death while intoxicated: convicted and sentenced to a non-parole period of 8 years with a balance of term of 2 years (total 10 years), commencing 3 August 2014.
- The sentences for common assault and affray run concurrently with the sentence for assault occasioning death.
- Total term of imprisonment: 10 years and 3 months; total non-parole period: 8 years and 3 months.
- Eligible for release to parole on 2 August 2022.
Key Takeaways
- Under s 25A(2) of the Crimes Act 1900, assault occasioning death while intoxicated carries both a maximum penalty of 25 years and a mandatory minimum non-parole period of 8 years, leaving the sentencing court limited discretion to depart downward from that floor.
- The District Court confirmed that where the mandatory minimum non-parole period produces a balance of term shorter than one third of that period, this does not offend s 44(2) of the Crimes (Sentencing Procedure) Act 1999. Section 44(2) caps the balance of term at one third; it does not require the balance to reach that proportion.
- Findings of fact at sentencing must be consistent with the jury's verdict, but a sentencing court is not required to adopt the view of the facts most favourable to the offender. Disputed factual matters must be resolved against the offender only if established beyond reasonable doubt.
- Where multiple offences arise from a single continuous episode, concurrency of sentences may reflect the totality principle, even if partial accumulation is applied to the commencement dates.
- Rejection of a claim of self-defence at sentencing requires the court to assess the totality of the evidence, including eyewitness accounts of the complainant's posture and demeanour immediately before the assault.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 25A, 25B
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases:
- Garth v R [2017] NSWDC 469
- Magaming v R (2013) 252 CLR 381; [2013] HCA 40
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Musgrove v R (2007) 167 A Crim R 424; [2007] NSWCCA 21
- Pattalis v R [2013] NSWCCA 171
- R v Halloun [2014] NSWSC 1705
- R v Isaacs (1997) 41 NSWLR 375