AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 15 August 2019

R v Todorovski

[2019] NSWDC 541

Assault & violence
SENTENCE AFFRAY LOW LEVEL OTHER VIOLENCE DE SIMONI APPLIED LATE GUILTY PLEA AT SPECIAL CALL

Citation: R v Todorovski [2019] NSWDC 541
Court: District Court of New South Wales
Date: 15 August 2019
Judge: Haesler SC DCJ

Background

The offender was sentenced for affray under s 93C(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of ten years imprisonment. The offence arose from a street altercation outside a Wollongong club in the early hours of 9 June 2018. A confrontation began after a member of a passing group threw coins at a car, prompting the offender and others near the vehicle to approach and engage in a physical fight.

A co-accused, Bennis, separately stabbed one of the other group during the incident. The sentencing judge was clear that the offender bore no criminal responsibility for that stabbing, applying the principle from The Queen v De Simoni that a sentencing court cannot take into account more serious conduct for which the offender has not been convicted. The facts before the court regarding the offender's own conduct were described by both counsel as scant.

The offender had initially pleaded not guilty and the matter was listed for trial. He entered a guilty plea at the special call-over. He had a prior criminal record involving drug offences but no prior violence.

  • What was the appropriate sentence for an affray offence where the offender's personal conduct was at the lower end and the facts were limited?
  • How should the sentencing court apply De Simoni where a co-offender committed more serious violence during the same incident?
  • What weight should be given to a late guilty plea entered at a special call-over?
  • What role did the offender's personal circumstances, including drug use, mental health, and family background, play in the sentencing exercise?

Decision

Haesler SC DCJ assessed the objective seriousness of the offence as low on the available material. The facts disclosed a street fight but no evidence that the victim of that particular fight (McIntyre) sustained any injury. The court declined to treat the stabbing by Bennis as an aggravating feature of the offender's conduct, applying De Simoni: the offender could only be sentenced for the affray in which he personally participated.

The late guilty plea attracted a modest discount. The judge noted it had freed up a trial listing, but the plea came after the matter had been set for trial, which limited the utilitarian benefit.

On personal circumstances, the court heard oral evidence from the offender's mother. His background included parental separation, a father with a history of crime and drug use, difficulties at school, and his own sustained misuse of methamphetamine. He was being treated by a GP for anxiety and depression. The court found these matters relevant to the purposes of sentencing, particularly the community interest in rehabilitation.

Taking the objective seriousness and personal circumstances together, Haesler SC DCJ concluded that a custodial sentence was not required. A 12-month Community Corrections Order was imposed, with conditions directed at supervision, drug rehabilitation, and engagement with a Mental Health Plan.

Orders Made

  • A Community Corrections Order imposed for 12 months from 15 August 2019, pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999, in lieu of imprisonment.
  • Standard conditions of the order to apply.
  • The offender to be subject to supervision by a Community Corrections Officer at Wollongong Community Corrections District Office for the duration of the order.
  • The offender to report to the Wollongong Community Corrections Office within 7 days of 15 August 2019.
  • The offender to obey all reasonable directions of Community Corrections, including in relation to drug counselling, rehabilitation, and engagement with medical professionals for implementation of a Mental Health Plan.

Key Takeaways

  • The District Court confirmed the application of De Simoni: where a co-offender commits more serious violence during the same incident, the sentencing court cannot treat that conduct as an aggravating circumstance against the offender being sentenced, who bore no criminal responsibility for it.
  • Objective seriousness for an affray offence turns on the level and scale of the particular conduct proved, not the worst consequences that occurred during a broader incident.
  • A late guilty plea entered at a special call-over attracted only a modest sentencing reduction, reflecting the limited utilitarian benefit at that stage of proceedings.
  • Where the objective circumstances of an affray are at the lower end and personal circumstances point strongly toward rehabilitation, a non-custodial outcome remains available even for an offence carrying a ten-year maximum.
  • Oral evidence from a family member about an offender's background and personal development can carry weight in the sentencing exercise, particularly where it illuminates prospects for rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93C(1) (affray)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8(1) (community correction orders)

Cases:
- The Queen v De Simoni (1981) 147 CLR 383 (High Court of Australia)