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District Court 12 June 2020

R v Ross (No. 5)

[2020] NSWDC 306

Assault & violence
CRIMINAL LAW SENTENCING PARITY PRINCIPLE WHERE CO 19 PANDEMIC

Citation: R v Ross (No. 5) [2020] NSWDC 306
Court: District Court of New South Wales
Date: 12 June 2020
Judge: Abadee DCJ

Background

In April 2018, the offender participated in a planned group assault on a victim at a residential facility in Wyong. The attack involved at least five assailants who punched and kicked the victim, and one of the group stabbed him with a knife. The offender was convicted, following a judge-alone trial, of assault occasioning actual bodily harm in company under s 59(2) of the Crimes Act 1900 (NSW).

The conviction rested on joint criminal enterprise liability. The Crown conceded at trial that there was reasonable doubt as to whether the offender personally struck the victim. His liability arose from his role in planning and organising the attack, including arranging for the victim to be lured to the location and for himself and confederates to be transported there.

The sentencing remarks addressed the principal offence alongside three back-up offences on a s 166 certificate, concerning possession of a prohibited drug, unlicensed possession of a firearm, and dealing with proceeds of crime.

  • Whether conviction based on joint criminal enterprise, rather than as a principal assailant, reduced the offender's culpability and the objective gravity of the offending
  • How to assess objective seriousness where the offender was a planner but his precise physical role in the assault was unclear
  • Whether the parity principle applied, given a co-offender (Hodder) had been sentenced by a different judge
  • Whether electing a judge-alone trial during the COVID-19 pandemic constituted a facilitation of the administration of justice warranting a sentencing discount
  • Whether the conditions of custody during the pandemic were a relevant sentencing consideration

Decision

Objective gravity and joint enterprise culpability. Abadee DCJ accepted that a conviction grounded in joint enterprise, rather than direct participation as a principal assailant, may reduce the objective gravity of the offending to some degree, consistent with Ford v R [2020] NSWCCA 99. However, his Honour rejected the submission that this necessarily placed the offender's conduct at the low end of the objective range. The offender was deeply involved in the planning, organised the luring of the victim, and arranged transport for the group. The degree of planning, the location of the assault at a residential facility attended by members of the public, the number of assailants, and the nature of the injuries all weighed toward moderate to serious objective gravity. His Honour also found that, despite no specific intent being required for the offence, the evidence established the offender intended that actual bodily harm would be inflicted.

Parity with the co-offender. The co-offender Hodder had been sentenced by a different judge. Abadee DCJ acknowledged the parity principle requires that co-offenders not receive sentences so different as to give rise to a justifiable sense of grievance, but noted that the principle applies with less force when sentences are imposed by different judges: Green v The Queen (2011) 244 CLR 462; Postiglione v The Queen (1997) 189 CLR 295. On balance, his Honour found no significant divergence in the circumstances of the offender and Hodder that would justify a materially different approach to the non-parole period ratio, while remaining cautious about adjusting the ratio in an excessively lenient direction.

COVID-19 and the judge-alone election. His Honour considered whether the offender's election for a judge-alone trial during the pandemic warranted a discount as a facilitation of the administration of justice. The decision acknowledged the genuine practical benefit to the justice system of that election during a period when jury trials were significantly disrupted, and accepted this was a relevant consideration. Separately, the conditions of custody in correctional centres during the pandemic, including periods of lockdown, were taken into account in a minor way when assessing the length of the non-parole period, consistent with R v Richards; R v Amuso [2020] NSWDC 258.

Sentence imposed. The offender was sentenced to three years and two months' imprisonment, commencing 15 February 2020 and expiring 14 April 2023, with a non-parole period of one year and ten months expiring 14 December 2021.

Orders Made

  • The offender was convicted of assault occasioning actual bodily harm in company, contrary to s 59(2) of the Crimes Act 1900 (NSW), and sentenced to imprisonment for three years and two months commencing 15 February 2020, expiring 14 April 2023.
  • Non-parole period set at one year and ten months, expiring 14 December 2021, with first eligibility for parole on that date.
  • The three back-up charges on the s 166 certificate (possession of prohibited drug, unlicensed possession of firearm, and dealing with proceeds of crime) were remitted to the Local Court at Gosford to be determined according to law, with the matter listed before the presiding Magistrate on 30 June 2020.

Key Takeaways

  • A conviction for assault occasioning actual bodily harm arising from joint criminal enterprise, rather than as a direct assailant, may reduce objective gravity to some degree, but does not automatically place the offending at the low end of the range, particularly where the offender was centrally involved in planning the attack.
  • Where an offender's precise physical role in a group assault cannot be established beyond reasonable doubt, culpability is nonetheless assessed by reference to the full picture of involvement, including pre-assault organisation and conduct aimed at evading detection afterwards.
  • The parity principle applies with reduced force when co-offenders are sentenced by different judges; a court is not required to mirror another judge's sentencing approach, provided the outcome does not produce a justifiable sense of grievance.
  • Electing a judge-alone trial during the COVID-19 pandemic was treated as capable of constituting a facilitation of the administration of justice under the Crimes (Sentencing Procedure) Act 1999 (NSW), warranting recognition at sentence.
  • Pandemic-related conditions of custody, including lockdowns in correctional centres, were accepted as a relevant, if minor, factor in calibrating the length of the non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59, 193C
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 4
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22A
- Criminal Procedure Act 1986 (NSW), s 169
- Drug Misuse and Trafficking Act 1985 (NSW), s 10
- Firearms Act 1996 (NSW), s 65

Cases
- Baquiran v R [2014] NSWCCA 221
- Callaghan v R [2006] NSWCCA 58
- Coulter v The Queen (1988) 164 CLR 350
- DPP v Bourke [2020] VSC 130
- Ford v R [2020] NSWCCA 99
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Kocyigit v R [2018] NSWCCA 279
- Lowe v The Queen (1984) 154 CLR 606
- Mansour v R [2011] NSWCCA 28
- Mansour v R; Hughes v R [2013] NSWCCA 35
- Matzick v R [2007] NSWCCA 92
- Postiglione v The Queen (1997) 189 CLR 295
- R v Bloomfield (1998) 44 NSWLR 734
- R v King (2004) 150 A Crim R 409
- R v Mackey [2006] NSWCCA 254
- R v Reid (2005) 155 A Crim R 428
- R v Richards; R v Amuso [2020] NSWDC 258