Citation: [2020] NSWDC 258
Court: District Court of New South Wales
Date: 1 June 2020
Judge: Noman SC DCJ
Background
Two offenders, Richards and Amuso, were sentenced for a violent assault on a victim at Manly Oval in the early hours of 11 May 2019. All three men were homeless or sleeping rough at the time. CCTV footage captured the incident, which involved the use of a pole and a drain grate as weapons, resulting in actual bodily harm and reckless wounding of the victim.
Richards faced three counts: assault occasioning actual bodily harm in company, wounding with intent, and the alternative of recklessly wounding in company. He pleaded not guilty to the first two counts but guilty to the alternative. After six days of trial, a resolution was reached and he pleaded guilty to both the assault and reckless wounding counts. Amuso had entered an early guilty plea in the Local Court to wounding with intent, but was later re-arraigned on lesser charges (consistent with Richards) in the interests of fairness and consistency, and pleaded guilty at that point.
The sentencing proceedings required the court to resolve disputed facts about the roles of each offender and the extent to which each participated in a joint criminal enterprise. The offenders maintained that the victim had initiated the confrontation, but the court found those accounts were unreliable and inconsistent with the CCTV footage.
Legal Issues
- What discount for guilty pleas applied to each offender, given the different timing and circumstances of those pleas
- Whether the offenders' disputed accounts of provocation and self-defence should be accepted on the facts
- How the principle of parity should operate between two co-offenders with different levels of culpability
- Whether special circumstances existed to justify a non-parole period less than the standard ratio
- Whether the more onerous conditions of custody during the COVID-19 pandemic were a relevant sentencing consideration
Decision
The court rejected the accounts advanced by both offenders that the victim had initiated or provoked the assault. The CCTV footage was treated as the most reliable evidence and did not support claims that the victim had taken property, armed himself, or attacked either offender. The offender Richards' denial of using the pole was described as demonstrably false. Amuso's account to police at the scene was found to be evidently unreliable and inconsistent with what was recorded.
On plea discounts, Richards received a 5% reduction for the reckless wounding count (reflecting his plea at the commencement of trial) and a further 5% for the assault (entered during trial). These were treated as late pleas. Amuso, who had pleaded guilty to conduct encompassing the same offending at the earliest opportunity in the Local Court, received a 25% discount. The court acknowledged the unusual procedural circumstance where Amuso was re-arraigned on lesser charges for consistency with Richards, and treated his plea as having been entered at the earliest opportunity for the purposes of the discount.
The court found special circumstances existed for both offenders, warranting a non-parole period below the standard one-third ratio. The court noted that both offenders were homeless, with significant rehabilitative needs requiring a longer period of supervision on parole. The pandemic conditions, specifically extended periods of cell confinement, were acknowledged as a factor minimally affecting sentence.
Parity was maintained by the court through the different sentence lengths, reflecting Richards' greater culpability: he initiated the assault, denied using the weapon, and received a lower plea discount. Amuso's earlier and more cooperative engagement with the process, combined with his later entry into the joint enterprise, resulted in a substantially shorter sentence.
Orders Made
Amuso:
- Assault occasioning actual bodily harm in company: fixed term of 9 months imprisonment, commencing 11 May 2019
- Reckless wounding in company: 3 years and 9 months imprisonment, non-parole period of 2 years, commencing 11 July 2019; eligible for parole 10 July 2021
- Overall sentence: 3 years and 11 months, overall non-parole period of 2 years and 2 months (55% ratio, reflecting special circumstances)
Richards:
- Assault occasioning actual bodily harm in company: fixed term of 1 year and 4 months imprisonment, commencing 11 July 2019
- Reckless wounding in company: 6 years and 7 months imprisonment, non-parole period of 3 years and 7 months, commencing 11 September 2019; eligible for parole 10 April 2023
- Overall sentence: 6 years and 9 months, overall non-parole period of 3 years and 9 months (55% ratio, reflecting special circumstances; 56% when earlier sentences are included)
Key Takeaways
- Where CCTV footage is available, the District Court treated it as the most reliable guide to disputed facts about how a violent incident unfolded, preferring it over accounts given to police or psychologists.
- A guilty plea entered to a more serious charge in the Local Court can still attract a 25% discount when the offender is later re-arraigned on lesser charges at a higher court, provided the plea was made at the earliest opportunity and encompassed the same offending conduct.
- Parity between co-offenders does not require equal sentences; it requires sentences that reflect relative culpability, with Richards receiving a substantially longer term than Amuso due to initiating the assault, using weapons, and receiving a smaller plea discount.
- Special circumstances, warranting a non-parole period below the standard ratio, were established on the basis of both offenders' homelessness and the extent of rehabilitative support they would require under parole supervision.
- COVID-19 pandemic conditions, specifically extended periods of cell lockdown, were accepted as a legitimate but minimal sentencing factor, distinct from considerations such as inability to access programs or loss of family visits.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 59 (assault occasioning actual bodily harm), 33 (wounding with intent), 35 (reckless wounding in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing)
Cases: No specific cases were cited in the portions of the judgment provided.