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District Court 4 October 2019

R v O’Sullivan, R v O’Sullivan, R v Bennett

[2019] NSWDC 703

Assault & violence

Citation: R v O'Sullivan, R v O'Sullivan, R v Bennett [2019] NSWDC 703
Court: NSW District Court
Date: 4 October 2019
Judge: Buscombe DCJ

Background

Three offenders were sentenced following a violent incident in Windsor in the early hours of 20 May 2018. The victims, Andrew Krah and Christopher Strauff, had spent the evening drinking heavily with a third man, Jarrod Moeckel. After an earlier altercation between Krah and Strauff, the group ended up near a 7-Eleven service station, where they encountered the three offenders arriving by car.

Solomen O'Sullivan left the vehicle carrying a bottle, approached Krah, and struck him with it, causing wounds when the bottle smashed. When Strauff, his wife, and Moeckel arrived at the scene shortly after, a further group altercation broke out. Ma'amoloa O'Sullivan smashed a bottle and struck Strauff to the back of the head, causing him to fall. Bennett also obtained a bottle and participated in the violence.

The three were tried by jury. All were convicted of wounding Christopher Strauff with intent to cause grievous bodily harm. Solomen O'Sullivan was additionally convicted of wounding Andrew Krah with the same intent. All three were either convicted at trial or had pleaded guilty to affray. Each was acquitted of assault occasioning actual bodily harm to Moeckel while in company.

  • Whether the facts could be established to the requisite standard for sentencing purposes, consistent with the jury's verdicts
  • The objective seriousness of the wounding offences and affray
  • The role of each offender in the joint criminal enterprise
  • The relevance of mild intellectual disability to sentencing, particularly in light of Bugmy v The Queen
  • Whether an Intensive Correction Order (ICO) was appropriate for any of the offenders, with community safety as the paramount consideration

Decision

Buscombe DCJ made detailed factual findings beyond reasonable doubt, consistent with the jury verdicts. CCTV and phone footage, together with witness evidence, established that Solomen O'Sullivan struck Krah with a bottle unprovoked, and that Ma'amoloa O'Sullivan struck Strauff to the back of the head with a broken bottle during the subsequent brawl. Bennett participated in the affray and was found to have wounded Strauff as part of the same episode.

The offences under s 33(1)(a) of the Crimes Act carry a maximum of 25 years imprisonment and a standard non-parole period of seven years. His Honour assessed the objective seriousness of the wounding offences and considered each offender's subjective circumstances, including youth, background, intellectual functioning, and prospects for rehabilitation.

For Solomen O'Sullivan, who delivered the initial unprovoked bottle strike on Krah and then returned to the vehicle for another bottle before continuing the altercation, the court imposed aggregate custodial sentences to be served by way of full-time imprisonment. Ma'amoloa O'Sullivan, whose wounding of Strauff was also found to be serious, similarly received a custodial sentence.

Bennett's culpability, while still significant, was assessed as comparatively lower. His Honour concluded that community safety would not be compromised and that rehabilitation prospects made an Intensive Correction Order more appropriate for him than full-time gaol.

Orders Made

Solomen O'Sullivan:
- Convicted of two counts of wounding with intent to cause grievous bodily harm (against Krah and Strauff) and affray
- Aggregate custodial sentence imposed (full-time imprisonment)

Ma'amoloa O'Sullivan:
- Convicted of wounding with intent to cause grievous bodily harm (against Strauff) and affray
- Aggregate custodial sentence imposed (full-time imprisonment)

Brandon Bennett:
- Convicted of wounding Christopher Strauff with intent to cause grievous bodily harm and affray
- Indicative sentence of 2 years for the wounding offence; 12 months for affray
- Aggregate sentence of 2 years imprisonment, to be served by way of an Intensive Correction Order commencing 4 October 2019 and expiring 3 October 2021
- ICO conditions: standard conditions (no criminal offending; supervision by Community Corrections); 250 hours community service work; abstain from alcohol for the first 12 months; abstain from illicit drugs for the full term; report to Blacktown Community Corrections on 8 October 2019

Key Takeaways

  • In sentencing proceedings following a jury trial, the District Court is required to find facts adverse to offenders beyond reasonable doubt, and to make findings consistent with the verdicts returned.

  • A spontaneous joint criminal enterprise does not require pre-planning; the court found that all three offenders participated in a common violent purpose even though the confrontation arose without prior arrangement.

  • Where an offender has a mild intellectual disability, the sentencing court must consider the principles in Bugmy v The Queen, which recognise that such a condition may moderate the weight given to general deterrence and affect the assessment of moral culpability.

  • An Intensive Correction Order remains available for offences of serious violence where the sentencing court is satisfied that community safety will not be compromised and that supervised community service better addresses reoffending risk than full-time custody.

  • The standard non-parole period of seven years for offences under s 33(1)(a) of the Crimes Act functions as a guidepost in the sentencing exercise, not a rigid floor, following Muldrock v The Queen.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a) (wound with intent to cause grievous bodily harm), 93C(1) (affray)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Muldrock v The Queen (2011) 244 CLR 120
- Lawson v R [2018] NSWCCA 215