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District Court 26 October 2018

R v Sullivan

[2018] NSWDC 366

Assault & violence
CRIMINAL LAW SENTENCE RECKLESSLY CAUSE GRIEVOUS BODILY HARM MOTIVATED BY ANGER PARITY

Citation: R v Sullivan [2018] NSWDC 366
Court: District Court of New South Wales
Date: 26 October 2018
Judge: Berman SC DCJ

Background

The offender, a visitor to Australia on a work visa staying at a Manly backpacker hostel, was out with two friends when the three of them witnessed a man push his girlfriend to the ground. They approached to intervene and an altercation broke out between the offender's friends and the man who had pushed the woman.

A bystander, the victim, stepped in to de-escalate the situation. He placed his hand out in front of the offender and urged the group to calm down. When the offender attempted to move toward the main fight, the victim grabbed his shirt and pushed him back to prevent him joining it.

The offender responded by pushing the victim to the ground. While the victim was on the ground trying to rise, the offender delivered a single forceful punch upward into the base of his nose. The blow caused extensive facial fractures requiring an eight-hour operation, 24 days in hospital, titanium mesh implants, permanent scarring, loss of smell, changed appearance, lost income, and lasting psychological harm.

  • What sentence was appropriate for a single offence of recklessly causing grievous bodily harm, having regard to the objective seriousness of the conduct?
  • Whether the late guilty plea warranted a discount greater than 10 per cent on utilitarian grounds.
  • Whether the offender's conduct was properly characterised as provoked, affecting the objective seriousness assessment.
  • Whether parity with co-offenders who had been sentenced for different offences required any adjustment to the sentence.
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio.

Decision

Berman SC DCJ placed the offence in the middle range of objective seriousness. Three factors drove that assessment: the victim was on the ground and posed no threat when struck; the blow was delivered with significant force; and the victim had been attempting to prevent a situation where three people would attack one. The extensive and ongoing nature of the injuries reinforced the objective gravity of the offending.

His Honour rejected the submission that the offence was provoked. The victim's actions were directed at preventing further violence, not at provoking the offender. The judge accepted that the offender's own account identified anger as his motivation, which was inconsistent with a finding of provocation in any meaningful sense.

The guilty plea was entered at the very start of the scheduled trial, and His Honour was satisfied it warranted only a 10 per cent discount for utilitarian value, notwithstanding the defence submission that a higher discount was warranted because the second trial would not have proceeded in any event. The offender's good character, lack of criminal history, and the positive references before the court were acknowledged, but His Honour found these did not displace the need for a full-time custodial sentence. His Honour noted that deportation and potential civil liability were irrelevant to the sentencing exercise.

On parity, His Honour observed that the co-offenders had faced different charges dealt with in a different jurisdiction, and that the differences between the offenders were sufficiently significant that the parity principle did not require any adjustment. Special circumstances were found to exist because this was the offender's first time in custody, warranting an extended parole period beyond the standard ratio.

Orders Made

  • The offender was sentenced to a total term of four years imprisonment.
  • A non-parole period of two years was set, commencing 25 October 2018 and expiring 24 October 2020.
  • The offender is eligible for release to parole on 24 October 2020.

Key Takeaways

  • The District Court confirmed that a single punch causing grievous bodily harm can fall in the middle range of objective seriousness where the victim is defenceless on the ground, the force used is significant, and the injuries are extensive and permanent.
  • Anger as a motivating factor does not constitute provocation for sentencing purposes, particularly where the victim's conduct was directed at preventing violence rather than inciting it.
  • A guilty plea entered at the commencement of a scheduled trial attracted only a 10 per cent utilitarian discount, even where there was a submission that the trial would not have proceeded regardless.
  • Positive character references, an absence of prior criminal history, and the likelihood of deportation did not displace the requirement for a full-time custodial sentence where the objective gravity of the offence was sufficiently serious.
  • Special circumstances justifying a departure from the standard non-parole period ratio were established by the fact that it was the offender's first custodial experience, warranting an extended supervisory period upon release.

Legislation and Cases Referenced

Legislation:
- Offence of recklessly causing grievous bodily harm (standard non-parole period of four years; maximum penalty of ten years imprisonment, as referenced in the judgment)

Cases:
- No specific cases were cited in the provided judgment text.