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District Court 19 September 2018

R v Clement Sefo

[2018] NSWDC 257

Assault & violence

Citation: R v Clement Sefo [2018] NSWDC 257
Court: District Court of New South Wales
Date: 19 September 2018
Judge(s): Mahony SC DCJ

Background

The offender, aged 38 at sentencing, pleaded guilty to one count of recklessly inflicting grievous bodily harm in company under section 35(1) of the Crimes Act 1900, which carries a maximum penalty of 14 years imprisonment and a standard non-parole period of five years. The offence occurred on 31 August 2016 at a homeless shelter in Woolloomooloo, when the offender accompanied a co-offender who confronted a 51-year-old victim over a grievance involving the co-offender's girlfriend's belongings.

CCTV footage captured the co-offender and the victim exchanging punches. When the victim began gaining the upper hand, the offender moved in from behind and struck the victim twice to the back of the head. The second blow knocked the victim unconscious and he fell, striking his head on the floor. The co-offender then kicked the unconscious victim. Both men left the shelter without rendering assistance.

The victim was admitted to hospital with a subdural haematoma, cerebral frontal contusion, skull fracture, and post-traumatic amnesia lasting three weeks. He continued to suffer cognitive deficits after his discharge, including in language, though a pre-existing brain injury complicated the assessment of lasting harm. The offender was arrested on 7 September 2016 and remained in custody from that date.

Legal Issues

  • What was the appropriate assessment of the objective seriousness of the offending under section 35(1) of the Crimes Act 1900?
  • Did the offender's PTSD and substance abuse history reduce his moral culpability or diminish the role of general and specific deterrence in sentencing?
  • What utilitarian discount applied to the late guilty plea?
  • Whether special circumstances existed to vary the statutory ratio between the head sentence and the non-parole period.
  • How parity principles applied, given the co-offender had already been sentenced.

Decision

Objective seriousness

The court assessed the offending as falling within the mid-range of objective seriousness for a section 35(1) offence, but towards the lower end of that range (at [55]). The serious injuries to the victim, including brain bleeding, bruising of brain tissue, and a skull fracture, weighed heavily. The court characterised the offender's conduct as not only violent but "cowardly", given that the victim was struck from behind while engaged in a fight with the co-offender (at [55]). The court accepted the Crown's submission that the surrounding circumstances, including the context in which the offender intervened and the victim's subsequent cognitive impairment, placed the offending in the mid-range.

Mental health, moral culpability, and deterrence

The court declined to find any causal connection between the offender's PTSD symptoms and the offending (at [56]). The psychologist's report established PTSD and opioid dependence, but the court was not satisfied these conditions reduced the offender's moral culpability in the circumstances, noting he had the opportunity to intervene without striking the victim from behind (at [56]). General and specific deterrence remained important sentencing considerations. The court rejected submissions that the mental health issues should temper either form of deterrence (at [56]-[57]).

Guilty plea discount and criminal history

A 15% utilitarian discount applied to the sentence, reflecting the late stage at which the guilty plea was entered, consistent with the guideline in Thompson v Houlton (at [58]). The offender's extensive criminal antecedents, including armed robbery, multiple violence offences, and drug offending dating back to 2003, disentitled him to any leniency on account of prior good character (at [58]).

Special circumstances and parity

The court found special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, varying the standard ratio between the head sentence and non-parole period (at [59]). This was justified by the offender's ongoing drug dependence, need for rehabilitation, anger management, and mental health treatment. The court also applied parity principles with the sentence imposed on the co-offender Hunt, using the same starting point and adjusting for individual differences such as the applicable utilitarian discount (at [60]).

Orders Made

  • The offender was convicted of recklessly inflicting grievous bodily harm in company under section 35(1) of the Crimes Act 1900.
  • Sentenced to a total term of 4 years and 3 months imprisonment.
  • Non-parole period of 2 years and 6 months, commencing 7 September 2016 and terminating 6 March 2019.
  • Balance of term of 1 year and 9 months, commencing 7 March 2019 and terminating 6 December 2020.

Key Takeaways

  • A diagnosis of PTSD does not automatically reduce an offender's moral culpability or diminish the weight of general and specific deterrence in sentencing; the court must be satisfied of a causal link between the condition and the offending conduct (at [56]-[57]).

  • Under section 35(1) of the Crimes Act 1900, the objective seriousness of recklessly inflicting grievous bodily harm is assessed by reference to the severity of the injuries, the manner and circumstances in which they were inflicted, and any surrounding conduct, such as a cowardly attack from behind (at [55]).

  • Where a guilty plea is entered late in proceedings, the utilitarian discount is reduced. A range of 10 to 15% was accepted as appropriate here, consistent with the Thompson v Houlton guideline (at [2], [58]).

  • Special circumstances justifying a variation of the standard non-parole period ratio may be established where an offender has significant substance dependence and requires structured post-release rehabilitation and supervision (at [59]).

  • Parity in sentencing required the court to apply the same sentencing starting point for both co-offenders and adjust for individual differences, such as the applicable guilty plea discount, rather than impose an unexplained disparity between their sentences (at [60]).

Legislation and Cases Referenced

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

Cases
- Anae v R [2018] NSWCCA 73
- McCullough v R [2009] 194 ACrimR 439
- Stevens v R [2017] NSWCCA 216
- Thompson v Houlton (2000) 49 NSWLR 383