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District Court 28 June 2018

R v Ng (No 2)

[2018] NSWDC 441

Assault & violence
CRIME SENTENCE FOLLOWING TRIAL INTENT TO CAUSE GRIEVOUS BODILY HARM ACCESSORIAL LIABILITY

Citation: R v Ng (No 2) [2018] NSWDC 441
Court: District Court of New South Wales
Date: 28 June 2018
Judge(s): Wilson SC DCJ

Background

The offender was found guilty by a jury of wounding a person with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900. The offence carried a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years. Critically, the offender's liability was accessorial: he did not personally carry out the attack but played a supporting role.

The offending occurred on 24 August 2015 in Rydalmere. A co-offender used a wooden-handled hammer to strike a meat delivery worker on the head, face, and knee in a laneway, causing significant injuries. The offender drove a rented Holden Commodore, conducted what appeared to be surveillance runs near the laneway before the attack, dropped the co-offender off nearby, waited, and then collected the co-offender after he fled the scene.

In addition to the principal charge, the offender asked the court to take into account two further offences on a s 166 certificate, to which he had pleaded guilty: possessing a prohibited drug and possessing a prohibited weapon, both arising from the same date.

  • What was the appropriate objective seriousness of the principal offence, given the offender's accessorial rather than principal role?
  • How should the principle of parity with the sentence imposed on the co-offender inform the sentence?
  • Whether full-time custody was warranted, having regard to all sentencing alternatives under the Crimes (Sentencing Procedure) Act 1999.
  • What weight should be given to sentencing statistics drawn from a small sample of comparable offences?

Decision

Wilson SC DCJ characterised the objective seriousness of the offending as falling in the low range. While the co-offender's conduct was assessed as sitting at the very end of the low range or in the middle range, the offender's accessorial role placed his culpability below that level. The court took care to distinguish between the gravity of the underlying act and the particular contribution made by this offender.

The judge gave close attention to the sentence already imposed on the co-offender to ensure parity between them. The parity principle, as a matter of sentencing law, requires that offenders involved in the same criminal enterprise not receive sentences that are unjustifiably disparate. The offender's lower level of participation was reflected in a lesser sentence.

On the question of sentencing statistics, the court acknowledged their limited utility. The statistical pool comprised only 52 cases, of which 49 resulted in full-time custody, with imprisonment ranging from 18 months to 16 years. Wilson SC DCJ noted the difficulty of drawing reliable inferences from such figures without knowing the specific circumstances of each case, a difficulty compounded by the accessorial nature of this offending.

Full-time custody was held to be the appropriate sentencing outcome. No non-custodial alternative was considered suitable given the nature and circumstances of the offence.

Orders Made

  • The offender was convicted of wounding with intent to cause grievous bodily harm.
  • A non-parole period of two years and nine months was imposed, commencing 2 March 2018 and expiring 1 December 2020.
  • A head sentence of four years was imposed, expiring 1 March 2022.
  • The sentence was backdated to 2 March 2018, the date on which the offender was taken into custody following the jury verdict.

Key Takeaways

  • Accessorial liability can significantly affect the assessment of objective seriousness, even where the charge and maximum penalty are the same as for the principal offender.
  • The parity principle operated concretely here: the sentencing court calibrated the sentence against the co-offender's sentence to avoid unjustifiable disparity, with the difference in culpability between the two participants expressly acknowledged.
  • Sentencing statistics drawn from a small sample carry limited persuasive weight, particularly where the circumstances of the cases in the sample are unknown and the offending before the court has distinctive features such as accessorial involvement.
  • Under s 5 of the Crimes (Sentencing Procedure) Act 1999, a court must be satisfied that no sentencing alternative other than imprisonment is appropriate before imposing full-time custody. The District Court was so satisfied on the facts of this case.
  • Time spent in custody following verdict but before sentencing is taken into account by backdating the commencement of the sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Miller v The Queen [2016] HCA 30
- R v McNaughton (2006) 66 NSWLR 566
- R v Isaacs (1997) 41 NSWLR 374