Citation: R v Moon; R v Clarke; R v McCarthy [2020] NSWDC 287
Court: District Court of New South Wales
Date: 27 February 2020
Judge(s): Norrish QC DCJ
Background
Three co-offenders, referred to by their roles as the first, second, and third offender, appeared for sentence after pleading guilty on 25 February 2020 to two counts arising from an incident at Junee on 30 March 2019. They had initially pleaded not guilty when a jury was empanelled the day before, and had not pleaded guilty at the Local Court level.
The first count was affray under s 93C(1) of the Crimes Act 1900, involving unlawful violence towards two persons of a kind that would cause a person of reasonable firmness present at the scene to fear for their personal safety. The second count was assault occasioning actual bodily harm in company under s 59(2) of the Crimes Act 1900, directed at one of those two persons. Despite the affray charge carrying a higher maximum penalty of ten years, the court treated the assault in company as the more serious offence in the circumstances.
Each offender participated in what the court described as closely related offending, both in time and circumstance, though their individual degrees of involvement and personal circumstances differed materially.
Legal Issues
- What discount should apply for late guilty pleas entered after a jury was empanelled, under Part 3, Division 1A of the Crimes (Sentencing Procedure) Act 1999?
- How should the principle of totality of criminality apply where two offences are closely related in time and circumstance but not a true "single transaction"?
- How should parity of sentencing be applied when three co-offenders participated in the same criminal enterprise to varying degrees?
- What sentencing orders were appropriate for each offender, having regard to their individual subjective circumstances, including prior good character?
Decision
Guilty plea discount. The court identified the relevant provision as s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999, noting the legislation was "full of ambiguity and holes." Having regard to earlier offers of guilty pleas made to one or more counts, the court applied a 5% reduction to each sentence requiring calculation across all three offenders.
Totality. The court declined to characterise the two offences as a single transaction, distinguishing that concept from the present facts. Because the offences were nonetheless closely connected in time and circumstance, any notional full-time custodial terms would involve substantial concurrency and only slight accumulation.
Parity. The court treated parity as an aspect of equal justice, drawing on Postiglione v The Queen (1997) and related authority. It expressly differentiated between the three offenders on the basis of their respective degrees of participation and the extent to which each could claim provocation. One offender, who had the least active involvement, received Community Correction Orders rather than Intensive Correction Orders. Another offender received a longer Community Correction Order for the affray count because his claim to provocation was weaker than that of a co-offender.
Individual sentences. The court determined that personal deterrence played only a limited role given the offenders' subjective circumstances. It did not consider community protection a relevant factor, being satisfied the offenders posed no ongoing threat. General deterrence and denunciation, particularly for the display of violence in a public place, were treated as significant considerations.
Orders Made
First offender (Moon):
- Assault occasioning actual bodily harm in company: Intensive Correction Order, 1 year 5 months, with 150 hours community service
- Affray: Community Correction Order, 12 months
Second offender (McCarthy):
- Assault occasioning actual bodily harm in company: Intensive Correction Order, 1 year 2 months, with 150 hours community service
- Affray: Community Correction Order, 15 months
Third offender (Clarke):
- Assault occasioning actual bodily harm in company: Community Correction Order, 18 months, with 120 hours community service
- Affray: Community Correction Order, 15 months
All three offenders were directed to report to the Wagga Wagga Community Corrections Office by 4:30 pm on the day of sentencing.
Key Takeaways
- The District Court applied a 5% guilty plea discount under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 where pleas were entered after a jury was empanelled, the court noting the provision's significant ambiguity in its application to these circumstances.
- Parity of sentencing does not require identical outcomes for co-offenders. Where participation in a joint criminal enterprise differs materially, including differences in the degree of provocation available to each offender, differential sentences may be justified as an expression of equal justice rather than a departure from it.
- A sentencing court may treat assault occasioning actual bodily harm in company as more serious than affray in a given case, notwithstanding that affray carries a higher statutory maximum penalty, where the facts support that assessment.
- Two offences arising from the same incident need not constitute a "single transaction" for totality purposes. The court in this case drew a distinction between closely related offending and true single-transaction offending, though it still applied substantial concurrency.
- Prior good character and the absence of any ongoing community protection concern were relevant mitigating factors, but did not displace the need for general deterrence and denunciation where violence occurred in a public place.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 59(2), 93C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D(2)(c), Part 3 Division 1A
Cases:
- Holder and anor v R (1983) 3 NSWLR 245
- Jimmy v The Queen [2010] NSWCCA 60
- Johnson v R (2004) 78 ALJR 616
- Mill v R (1988) 166 CLR 59
- Postiglione v R (1997) 189 CLR 295
- R v Lulham (2016) 230 A Crim R 287
- R v XX (2009) 195 A Crim R 38