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District Court 18 April 2019

R v Jerome SAFFEY

[2019] NSWDC 137

Assault & violence
RECKLESSLY CAUSE GRIEVOUS BODILY HARM UNPROVOKED ONE PUNCH ATTACK ALCOHOL FUELLED VIOLENCE VICTIM WITH ONGOING SEQUELAE NEED FOR GENERAL DETERRENCE

Citation: R v Jerome SAFFEY [2019] NSWDC 137
Court: District Court of New South Wales
Date: 18 April 2019
Judge: His Honour Judge G Lerve

Background

The offender was a 22-year-old man socialising with friends at a hotel in Ashmont, a suburb of Wagga Wagga, on the evening of 5 January 2018. A separate group, involving the victim and his friends, arrived at the same hotel later that evening. A melee broke out in the car park between members of the two groups.

The victim took no part in the fight and was attempting to calm the situation down when the offender approached and punched him once in the face with a closed right fist. The victim fell backwards, struck the back of his head on concrete, and was rendered unconscious. The two men were strangers to each other.

The victim sustained serious traumatic brain injuries. He was hospitalised for six days at a neurosurgical ward and suffered lasting consequences including permanent loss of his sense of smell and ongoing difficulties with emotional regulation. The offender was charged with recklessly causing grievous bodily harm and pleaded guilty at the Wagga Wagga Local Court in September 2018.

Legal Issues

  • What is the appropriate objective seriousness of the offence, assessed against the standard non-parole period of 4 years?
  • What weight should be given to the offender's personal circumstances, including his age, background, remorse, and criminal history?
  • What are the offender's prospects of rehabilitation in light of further offending while on bail?
  • Whether special circumstances exist justifying a non-parole period below the statutory ratio?
  • What is the appropriate total sentence and non-parole period?

Decision

Objective Seriousness

The District Court assessed the offence as falling within the upper end of the mid-range of objective seriousness (at [18]). Although the assault involved a single punch, the violence was entirely unprovoked: the victim was attempting to de-escalate a volatile situation and was neither verbally nor physically aggressive (at [17]). The court treated this as a result offence, meaning the gravity of harm sustained was central to the assessment. The permanent and ongoing consequences for the victim, including irreversible loss of smell and impaired emotional control, were significant factors (at [17]-[18]).

General Deterrence

The court identified strong general deterrence as a key sentencing consideration, describing the matter as another example of alcohol-fuelled violence at licensed premises (at [23]). Drawing on the Court of Criminal Appeal's remarks in R v Loveridge and Daniels v R, His Honour affirmed that members of the community are entitled to patronise licensed venues without being subjected to random violence (at [23]-[24]).

Subjective Circumstances and Rehabilitation

The offender had a limited criminal record, mostly comprising minor regulatory and street offences, entitling him to some leniency on that basis (at [20]-[21]). His Honour found the offender to be genuinely remorseful, based on evidence given at the sentence hearing and the report of the forensic psychiatrist (at [32]). However, the offender's prospects of rehabilitation were not assessed favourably. He committed further offences while intoxicated on 23 March 2019, when he was already on bail for the present charge, and he had left a rehabilitation programme after only six of sixteen weeks (at [45]). The court could not find on balance that he was unlikely to reoffend (at [45]).

Sentence Calculation and Special Circumstances

The court set a starting point of 6 years imprisonment, reduced by 25 percent for the utilitarian value of the early guilty plea, producing a total sentence of 4 years and 6 months (at [53]). Special circumstances were found, resulting in a non-parole period of 3 years, which represents 66.6 percent of the total term rather than the standard 75 percent (at [57]). The court reasoned that a longer period of supervised parole was appropriate to allow for alcohol rehabilitation and structured reintegration into the community (at [44], [57]).

Orders Made

  • The offender was convicted of recklessly causing grievous bodily harm to the victim on 5 January 2018 at Ashmont.
  • Sentenced to a non-parole period of 3 years, commencing 24 January 2019 and expiring 23 January 2021.
  • Balance of term on parole of 1 year and 6 months, commencing 24 January 2021 and expiring 23 July 2022.
  • The court recommended the offender be released to parole at the expiration of the non-parole period, subject to supervision and compliance with directions regarding treatment and counselling for alcohol abuse (those conditions being a matter for the parole authorities).

Key Takeaways

  • Recklessly causing grievous bodily harm is treated as a result offence in NSW: the more severe and permanent the harm to the victim, the higher the objective seriousness, regardless of whether only a single blow was struck (at [16]-[18]).

  • An entirely unprovoked attack on a bystander who was attempting to calm a disturbance carries significant weight in the objective seriousness assessment, even where the broader context involved a melee (at [17]).

  • Further offending while on bail for a serious charge can foreclose a finding of good prospects of rehabilitation, and the District Court declined to make that finding where the offender reoffended while intoxicated before sentencing (at [45]).

  • Special circumstances can be established where the nature of an offender's alcohol dependence and the need for structured post-release supervision justify a longer parole period, even where rehabilitation prospects are not assessed as strong (at [44], [57]).

  • The District Court applied the principle from Daniels v R and R v Loveridge that general deterrence carries particular weight in sentencing for alcohol-fuelled violence at licensed premises, reinforcing that courts will impose substantial terms to address this category of offending (at [23]-[24]).

Legislation and Cases Referenced

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

Cases
- Daniels v R [2016] NSWCCA 35
- McCullough v R [2009] NSWCCA 94
- Mitchell & Gallagher v R (2007) 177 A Crim R 94
- R v Loveridge [2014] NSWCCA 120
- Stevens v R [2017] NSWCCA 216
- Wick v R [2017] NSWCCA 244