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District Court 30 August 2019

R v Murphy

[2019] NSWDC 635

Assault & violence
CRIME VIOLENT OFFENCES RECKLESSLY CAUSE GRIEVOUS BODILY HARM IN COMPANY CRIME COMPLICITY JOINT CRIMINAL ENTERPRISE

Citation: R v Murphy [2019] NSWDC 635
Court: District Court of New South Wales
Date: 30 August 2019
Judge: Buscombe DCJ

Background

The offender stood trial in Penrith on a charge of intentionally causing grievous bodily harm to the victim, arising from an assault at a residential unit in Lethbridge Park on 2 June 2017. The jury acquitted him of the primary count but convicted him of the statutory alternative: recklessly causing grievous bodily harm in company with another person, contrary to section 35(1) of the Crimes Act. That offence carries a maximum penalty of 14 years' imprisonment and a five-year standard non-parole period.

The facts found by the court described a late-night assault on the victim, who was socialising with others at the unit. The offender arranged for his co-offender, Dunn, to attend the premises. Once inside, both men approached the victim at the table: the offender punched him once to the face with force, while Dunn struck him repeatedly to the head with a hammer he had concealed beneath his clothing. The assault caused catastrophic injuries, including a skull fracture, extradural haematoma, and acute internal bleeding requiring two neurosurgical procedures.

The sentencing proceedings required the court to determine the offender's culpability within the joint criminal enterprise, and to balance his objective criminality against a range of subjective factors including his age, criminal history, drug dependence, and rehabilitation prospects.

Legal Issues

  • What facts could be found beyond reasonable doubt, consistent with the jury's verdict of recklessly causing grievous bodily harm in company, rather than the more serious intentional offence?
  • How should the offender's individual culpability be assessed within a joint criminal enterprise where the co-offender was the primary aggressor?
  • What weight should be given to the offender's youth, background, and personal circumstances in mitigation?
  • Whether special circumstances existed to justify departing from the statutory non-parole period ratio.

Decision

Objective facts consistent with the verdict

The court found beyond reasonable doubt that the offender and Dunn had prearranged to assault the victim and that the assault was unprovoked (at [14]). The jury's verdict was consistent with the offender not knowing that Dunn carried a hammer or intended to inflict really serious injury with it. The court treated this as a significant feature: Dunn had concealed the hammer inside his shirt when entering the unit, which supported the inference that the offender was unaware of it (at [14]-[15]).

Individual culpability within the joint enterprise

Although each participant in a joint criminal enterprise is equally liable for all acts done in furtherance of it, the court confirmed that individual culpability for sentencing purposes is assessed by reference to that person's own conduct (at [16]). The offender struck the victim once with his fist, described as a cowardly act, but the life-threatening injuries resulted from the hammer blows delivered by Dunn (at [15]). The court also accepted that the offender intervened to stop Dunn, pulling him away and calling out for him to stop, and found it likely that this intervention prevented the victim's death (at [10]). Taking these matters together, the court assessed the objective seriousness of the offence as below the notional mid-range, though clearly not at the very bottom of the range (at [16]).

Subjective circumstances

The offender was 21 at the time of the offending and 24 at sentencing, engaging the principles favouring rehabilitation and treatment over general deterrence for young adult offenders (at [17]). However, his criminal history included convictions for armed robbery and other violent offences (at [18]), and he had committed this offence within three months of being released to parole, and while on a section 9 bond, both of which the court treated as aggravating (at [19]). The court found substance abuse was at the heart of his offending, with daily cannabis and ice use at the relevant time (at [24]). His denial of participation in the offence, maintained in the sentence assessment report, affected the court's assessment of remorse, even though he expressed sorrow for the victim's injuries (at [26]). The Community Corrections officer assessed him at medium to high risk of reoffending, and the court characterised his rehabilitation prospects as no better than guarded (at [27]-[28]).

Special circumstances and sentence

The court found special circumstances warranting a longer parole period than the statutory ratio provides, given the offender's need for intensive supervision and his substance abuse issues upon release (at [30]). The sentence commenced on 3 March 2018 to reflect time already served in custody (at [31]).

Orders Made

  • The offender was convicted of recklessly causing grievous bodily harm in company, contrary to section 35(1) of the Crimes Act.
  • Sentenced to three years' imprisonment with a non-parole period of one year and eight months.
  • Sentence commences 3 March 2018 and expires 2 March 2021.
  • Non-parole period expires 2 November 2019.
  • No separate action taken on the breach of the section 9 bond, which was treated as part of the aggravating circumstance of offending on conditional liberty.

Key Takeaways

  • Within a joint criminal enterprise, each participant is equally liable for all acts done in furtherance of the enterprise, but the individual's sentencing is assessed by reference to their own conduct and the extent of their personal involvement (at [16]).

  • A conviction for recklessly causing grievous bodily harm in company under section 35(1) of the Crimes Act requires the jury to be satisfied that the accused participated in a joint criminal enterprise to assault the victim and realised that actual bodily harm may be caused (at [14]).

  • Where a co-offender concealed a weapon and the offender's ignorance of it was consistent with the jury's verdict on the lesser charge, the court treated that ignorance as a meaningful reduction in objective culpability, even though the victim's injuries were catastrophic (at [14]-[16]).

  • An offender's intervention to stop the assault mid-course was accepted as a mitigating feature in assessing culpability, and the court found it likely to have prevented the victim's death (at [10], [15]).

  • Committing a serious offence within three months of release to parole, and while on a conditional liberty bond, constitutes a statutory aggravating factor under section 21A of the Crimes (Sentencing Procedure) Act and was reflected in the sentence imposed (at [19]).

Legislation and Cases Referenced

Legislation
- Crimes Act
- Crimes (Sentencing Procedure) Act

Cases
- Not stated