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Local Court 12 February 2019

DPP v Radulovic

[2019] NSWLC 1

Assault & violenceDrugs
CRIME SENTENCE POSSESS PROHIBITED DRUG UTILITARIAN VALUE OF GUILTY PLEA PREVIOUS CRIMINAL RECORD SUBSTANCE ABUSE

Citation: DPP v Radulovic [2019] NSWLC 1
Court: NSW Local Court (Downing Centre)
Date: 12 February 2019
Judge: Judge Graeme Henson AM, Chief Magistrate

Background

The offender, a 23-year-old gyprocker, was sentenced for two offences: Assault Occasioning Actual Bodily Harm in Company under s 59(2) of the Crimes Act 1900 (NSW), and Possession of a Prohibited Drug under s 10(1) of the Drugs Misuse and Trafficking Act 1985 (NSW). The assault arose from a workplace incident in which the victim had hidden the keys to a truck belonging to the offender's father as a practical joke. After an initial confrontation between the father and the victim, the offender and at least one other family member confronted the victim, leading to a sustained group attack.

The victim was beaten unconscious, sustained fractures to his eye socket and nasal bones, and required plastic and reconstructive surgery. While the victim was still in hospital the following day, the offender telephoned him and made remarks to the effect that he "better not say anything." The court treated this as evidence of an initial absence of remorse, though no separate charge was laid for that conduct.

Pleas of guilty were entered on 26 November 2018, approximately nine months after the charges first came before the court. A more serious charge was withdrawn by the DPP in exchange for the pleas. The offender had been held in custody for 19 days following his arrest and was subsequently released on what the court described as particularly onerous bail conditions, effectively amounting to home detention.

  • What utilitarian discount should apply to the guilty plea, given the delay in entering it?
  • Did the seriousness of the offending cross the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) requiring the court to consider a non-custodial or community-based sentence before imposing full-time imprisonment?
  • Was an Intensive Corrections Order (ICO) an appropriate sentencing option?
  • How should pre-sentence custody and onerous bail conditions affect the sentence length?
  • How should the drug possession offence be dealt with in light of the primary sentence?

Decision

Guilty plea discount. The Chief Magistrate found that the delay of nine months before the pleas were entered, and the overwhelming nature of the prosecution case, justified limiting the utilitarian discount for the pleas to no more than 10%. The court noted that earlier opportunities to plead had been available, regardless of the DPP's brief election to proceed on indictment in April 2018.

Objective seriousness and the s 5 threshold. The court assessed the assault as a vicious and cowardly group attack, noting the significant injuries, the intimidatory conduct after the fact, and the offender's prior record including repeated breaches of bonds. Taking the subjective matters into account, including the offender's age, difficult childhood, substance abuse, possible underlying mental health issues (for which no medical report had been provided), and his otherwise stable employment and accommodation, the court concluded that the s 5 threshold for full-time imprisonment had nonetheless been crossed.

ICO refused. The court determined that an ICO was not appropriate in the circumstances. The Sentence Assessment Report rated the offender as a medium risk of reoffending, and the prospect for rehabilitation was described as guarded. The court also noted that the conditions of any ICO likely could not be met, given that the offender resided with at least one of the co-accused.

Drug possession offence. In light of the full-time custodial sentence imposed for the assault, the court dealt with the drug possession charge by recording a conviction under s 10A of the Crimes (Sentencing Procedure) Act 1999, imposing no additional penalty.

Orders Made

  • Convicted of Assault Occasioning Actual Bodily Harm in Company and sentenced to imprisonment with a minimum term of 8 months and an additional term of 6 months (parole period), commencing 24 January 2019.
  • Eligible for parole on 24 September 2019; sentence to expire 24 March 2020.
  • Parole conditions to include participation in programs directed by Community Corrections, including treatment for any diagnosed mental condition.
  • Convicted of Possess a Prohibited Drug; dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) with no additional penalty imposed.

Key Takeaways

  • A guilty plea entered approximately nine months after charges first came before the court, in a case with an overwhelming prosecution case, attracted a utilitarian discount of no more than 10%, consistent with the principles discussed in R v Borkowski [2009] NSWCCA 102.
  • Under s 59(2) of the Crimes Act 1900, objective seriousness is assessed against the maximum penalty for the offence itself (7 years), not against the Local Court's jurisdictional ceiling of 2 years, following R v Doan (2000) 50 NSWLR 115.
  • Post-offence conduct intended to intimidate a victim into silence, while not separately charged, remained available to the sentencing court as evidence of an initial absence of remorse, provided it did not result in the offender being sentenced for a more serious offence contrary to the principle in R v De Simoni (1981) 147 CLR 383.
  • Onerous bail conditions of a quasi-custodial nature are a recognised factor in adjusting the length of a sentence, though the adjustment must not reduce the sentence to a level inconsistent with the seriousness of the offending.
  • Where a co-accused resides with the offender, an ICO may be unavailable in practice if its conditions cannot realistically be met in that living arrangement.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 59(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A(2), 47(3), 66
- Drugs Misuse and Trafficking Act 1985 (NSW) s 10(1)
- Children's (Criminal Proceedings) Act 1987 (NSW) s 15

Cases
- Imbornone v R [2017] NSWCCA 144
- R v Borkowski [2009] NSWCCA 102
- R v De Simoni (1981) 147 CLR 383
- R v Doan (2000) 50 NSWLR 115
- R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60
- R v Pullen [2018] NSWCCA 264