Citation: R v Youkhana [2020] NSWDC 100
Court: District Court of New South Wales
Date: 23 March 2020
Judge(s): Colefax SC DCJ
Background
The offender was sentenced for assault occasioning actual bodily harm whilst in the company of others, contrary to s 59(2) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of seven years' imprisonment with no standard non-parole period.
The assault occurred on 16 April 2017 in Green Valley, Sydney. The offender and two others travelled to the home of a man named Mr Chandra after arranging to purchase ice. When Mr Chandra arrived, the offender punched him in the head from behind without provocation, causing him to fall to the ground. Mr Chandra was then forced into the vehicle, where he was further elbowed in the face and burnt on the chest during a drive. The agreed facts established a joint criminal enterprise, making all three participants criminally responsible regardless of who specifically inflicted each act.
At the time of the offence, the offender was on parole for a prior detention offence and on bail for three separate matters. He had been in continuous custody since his arrest on 23 April 2017, though the period referable specifically to this offence was calculated from 29 September 2018, after accounting for time served on unrelated parole and sentences.
Legal Issues
- What sentence was appropriate for an offence of assault occasioning actual bodily harm in company, having regard to objective seriousness, criminal history, and the offender's personal circumstances?
- What discount, if any, was warranted for a late guilty plea entered on the third hearing date?
- Whether special circumstances existed to justify varying the statutory ratio between the head sentence and the non-parole period.
- What start date should apply to the sentence, given the offender had been in custody on unrelated matters.
Decision
His Honour assessed the offending as slightly above a mid-range offence of its type. The aggravating features were significant: the offender was on both parole and bail at the time, and his lengthy criminal record added further weight. The absence of a victim impact statement meant the court declined to speculate about the extent of Mr Chandra's injuries to the offender's detriment, though it accepted the experience was undoubtedly frightening.
The offender's background was given careful consideration. Born in Iraq, he witnessed his father's murder at age 12, a trauma the court found had deeply damaged him. After arriving in Australia at 15, he fell into criminal company in Fairfield, began using ice from age 17, and had spent all but approximately 19 months of the preceding 11 years in custody. A 2014 psychologist's report attributed his drug use to unaddressed emotional distress stemming from his father's death. The court accepted this analysis and observed that rehabilitation required addressing both the drug use and its underlying cause, including through trauma-focused services.
A discount of 5% was applied for the late guilty plea, entered on the third hearing date following a hung jury at the first trial and a non-event second date. No remorse had been expressed, and the court found rehabilitation prospects were poor given the offender's history and the absence of evidence of any rehabilitative efforts. Nevertheless, a finding of special circumstances was made to extend the parole period, on the basis that a longer period in the community under supervision offered the best available prospect of rehabilitation.
The sentence was not backdated beyond 29 September 2018, as the earlier custodial period related to independent matters. The court fixed a head sentence of three years and nine months (reduced from four years by the 5% plea discount), commencing 29 September 2018, with a non-parole period of one year and eight months, making the offender eligible for parole on 28 May 2020.
Orders Made
- Head sentence of three years and nine months' imprisonment, commencing 29 September 2018.
- Non-parole period of one year and eight months, with parole eligibility from 28 May 2020.
- Balance of term of two years and one month, commencing 29 May 2020 and expiring 28 June 2022.
- Special circumstances found, varying the statutory head sentence to non-parole period ratio.
- Charges at sequences two and three withdrawn and dismissed.
- Psychologist's report (Exhibit 1, dated 30 May 2014) to accompany the offender to his place of detention.
Key Takeaways
- The District Court confirmed that being on both parole and bail at the time of offending constitutes significant aggravation in sentencing, compounding objective seriousness derived from the offence itself.
- A late guilty plea entered on the third hearing date, following a hung jury at the first trial, attracted only a 5% discount, reflecting the limited utilitarian value of such a plea.
- Special circumstances justifying a reduced non-parole period can be found even where an offender has a lengthy criminal history, where a longer period on supervised parole is assessed as offering the best remaining prospect of rehabilitation.
- Where no victim impact statement is before the court, sentencing proceeds without adverse speculation about the extent of the victim's injuries beyond what the facts establish.
- Unaddressed psychological trauma from pre-migration experiences was treated as relevant background context in assessing the offender's personal circumstances, including the origins of drug dependency, though it did not alter the finding that full-time imprisonment was the only appropriate sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 59(2) (assault occasioning actual bodily harm whilst in company; maximum penalty seven years' imprisonment)
Cases cited: None cited in the judgment.