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District Court 1 February 2019

R v Steven Turner

[2019] NSWDC 8

Assault & violence
SENTENCING ONE PUNCH PLEA OF GUILTY STRONG SUBJECTIVE CIRCUMSTANCES GOOD PROSPECTS OF REHABILITATION GOOD CHARACTER

Citation: R v Steven Turner [2019] NSWDC 8
Court: District Court of New South Wales
Date: 1 February 2019
Judge: Hatzistergos DCJ

Background

The offender pleaded guilty to one count of recklessly causing grievous bodily harm in company, contrary to section 35(1) of the Crimes Act 1900 (NSW). A related offence of affray under section 93C(1) was listed on a Form 1 to be taken into account on sentence.

The offending arose from a brawl that began at a Surry Hills restaurant in the early hours of 29 October 2017. The offender and his brother had attended a birthday party and were drawn into a violent group altercation involving several co-offenders. While that affray was still unfolding on the street, the offender mistakenly believed a bystander was filming proceedings on his phone and launched an unprovoked attack.

Without warning, the offender punched the bystander once to the right side of the face with sufficient force to knock him unconscious before he fell. The victim's head struck the concrete pavement with an audible crack, causing a skull fracture, mouth lacerations requiring stitches, and permanent profound hearing loss in one ear. The offender and his companions left the scene without rendering any assistance.

  • Where the offending fell on the spectrum of objective seriousness, measured against the mid-range for an offence carrying a standard non-parole period
  • How the strong subjective circumstances (including good character, genuine remorse, and prospects of rehabilitation) should be weighed against the objective gravity of the offence
  • Whether a non-custodial sentence was appropriate, or whether only full-time imprisonment could satisfy the purposes of sentencing under section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the total sentence

Decision

Hatzistergos DCJ assessed the objective seriousness of the offence as falling below, but not far below, the mid-range. The single punch was delivered to the head with considerable force, in circumstances where the victim was entirely uninvolved in the prior brawl and had both hands occupied holding his phone. The resulting injuries were serious and permanent. The judge noted, however, that only one blow was struck and no weapon was used.

The offender's subjective circumstances were characterised as strong. He had no prior criminal history, had voluntarily attended police and made admissions, expressed genuine remorse, and produced extensive character references attesting to his good standing in the community. A psychological report assessed his risk of reoffending as low and his prospects of rehabilitation as good.

The Crown's submission that only full-time custody was appropriate prevailed over the defence's argument for a non-custodial disposition. The court held that the purposes of sentencing, including general deterrence and denunciation, could not be met by any sentence other than imprisonment. General deterrence was identified as a particularly important factor for offences of this kind.

The judge found special circumstances, warranting a longer-than-standard parole period, given that this would be the offender's first time in custody and that his rehabilitation prospects and community support justified additional supervision on release. A 25 per cent discount was applied to the head sentence to reflect the utilitarian value of the guilty plea.

Orders Made

  • The offender was sentenced to imprisonment for 2 years and 7 months, commencing 31 January 2019 and expiring 30 August 2021
  • Non-parole period of 1 year and 6 months, commencing 31 January 2019 and expiring 30 July 2020
  • Additional (parole) term of 1 year and 1 month, from 31 July 2020 to 30 August 2021
  • Earliest release date: 30 July 2020
  • The court recommended to the Commissioner for Corrective Services that the offender be placed in the Young Adult Offenders Programme

Key Takeaways

  • A single unarmed punch to the head can constitute recklessly causing grievous bodily harm in company where co-offenders are present and the resulting injuries are serious and permanent, even where no weapon is used and only one blow is struck.
  • Strong subjective circumstances, including first-offender status, voluntary cooperation with police, genuine remorse, and low assessed risk of reoffending, can significantly reduce a sentence but will not displace the need for full-time custody where general deterrence and denunciation require it.
  • Under section 54A of the Crimes (Sentencing Procedure) Act 1999, sentencing courts must assess where the objective seriousness of the offence sits relative to the mid-range when a standard non-parole period applies, even where that standard non-parole period does not ultimately govern the outcome.
  • Special circumstances justifying an extended parole period were established here by the combination of a first custodial sentence, strong rehabilitation prospects, and the availability of community support structures.
  • The District Court applied a 25 per cent discount to the head sentence (reducing it from 3 years and 6 months to 2 years and 7 months) to reflect the utilitarian benefit of the guilty plea, consistent with the approach in Betts v R [2015] NSWCCA 39.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(1), 93C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 28, 33, 54, 54A, 54D

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002 (2002) 56 NSWLR 146
- Betts v R [2015] NSWCCA 39
- Davis v R [2018] NSWCCA 67
- Kemp v R [2012] NSWCCA 281