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District Court 24 July 2020

R v Bene

[2020] NSWDC 397

Assault & violence
CRIME SENTENCE

Citation: R v Bene [2020] NSWDC 397
Court: District Court of New South Wales
Date: 24 July 2020
Judge: Colefax SC DCJ

Background

The offender was sentenced for one count of assault occasioning actual bodily harm whilst in company, 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 offending occurred on 17 April 2017. The offender, a co-accused, and an unknown man drove to the home of a prospective drug supplier in Green Valley, ostensibly to acquire methamphetamine. When the supplier arrived and began speaking through the car window, the co-accused punched him in the head from behind, causing him to fall. He was then forced into the vehicle and, during a subsequent drive, elbowed in the face and burnt on the chest. The identity of who inflicted each individual act was not established, but all three participants were held jointly criminally responsible.

The offender was 20 years old at the time of the offence and had been on bail for a range of other matters. He was arrested on 6 May 2017 and refused bail. His sentencing was complicated by intervening custody periods attributable to unrelated matters, including an inconclusive trial in August 2018.

  • What was the appropriate objective seriousness of the offence within its range?
  • What weight should be given to the offender's subjective circumstances, including age, psychological diagnoses, and drug dependency?
  • Whether genuine remorse had been established, and what implications flowed for rehabilitation prospects?
  • How should parity with the co-accused's earlier sentence be applied?
  • Whether special circumstances existed to justify varying the standard non-parole period ratio?
  • How should the sentence start date be calculated given the complexity of the offender's custody history?

Decision

Objective seriousness and aggravation. The court assessed the offence as slightly above mid-range for its type. The fact that the offender was on conditional liberty (bail) at the time of the offending was a further aggravating factor. The absence of a victim impact statement meant the court declined to speculate adversely about the extent of Mr Chandra's injuries.

Subjective circumstances. The offender came from a loving, supportive family of Iraqi Christian heritage. His parents had fled religious persecution in Iraq and settled in Australia. Despite a stable upbringing, the offender left school at Year 10 and had spent most of his time since age 16 consuming illicit drugs, primarily cannabis, at a cost of $100 to $150 per day funded through unspecified questionable activities. A psychologist diagnosed him with substance-induced psychotic disorder and antisocial personality disorder, but the court was not satisfied on the balance of probabilities that either condition had a causal connection to the offending. General deterrence was therefore of reduced (though not absent) significance; specific deterrence and encouragement of rehabilitation remained fully engaged.

Remorse and rehabilitation. The court was not persuaded that the offender was genuinely remorseful. Reports noted that he minimised his role in the offending and, in the psychologist's report, denied asking the question "Do you remember me?" despite this appearing in the agreed facts. His failure to give evidence in the sentence hearing reinforced that conclusion. Rehabilitation prospects were assessed as guarded, with his relative youth and family support identified as the most positive factors.

Parity and sentence calculation. The court applied the parity principle by reference to the earlier sentence imposed on the co-accused in R v Youkhana [2020] NSWDC 100. The co-accused's moral culpability was assessed as slightly higher, given that he delivered the initial blow and had a more significant criminal record. However, his seriously dysfunctional childhood and more pronounced psychological condition from long-term drug use partially offset those differences. The offender received a 10 per cent discount for his late guilty plea. The court found special circumstances to vary the non-parole period ratio, citing the offender's age, the need for a longer supervisory period to address drug addiction, and the more onerous prison conditions arising from the COVID-19 pandemic. The base term of three years and six months was reduced to three years and two months after the plea discount.

Orders Made

  • The offender was sentenced to a term of imprisonment of 3 years and 2 months.
  • Non-parole period of 1 year and 11 months, commencing 25 August 2018 and expiring 24 July 2020 (making the offender immediately eligible for parole).
  • Balance of term of 1 year and 3 months, commencing 25 July 2020 and expiring 24 October 2021.
  • The psychological report of Dr Klamer dated 25 June 2020 (Exhibit 1) was ordered to follow the warrant.

Key Takeaways

  • A finding of special circumstances to adjust the non-parole period ratio can rest on a combination of factors, including the offender's youth, the need for extended supervision to address entrenched drug dependency, and the more onerous conditions of custody arising from the COVID-19 pandemic.
  • Where an offender minimises responsibility in reports and declines to give evidence in the sentencing hearing, a court may decline to find genuine remorse on the balance of probabilities, with corresponding consequences for the assessment of rehabilitation prospects.
  • The parity principle required the District Court to calibrate this sentence against the earlier sentence imposed on the co-accused, taking into account relative moral culpability, criminal histories, and respective subjective circumstances.
  • Under s 59(2) of the Crimes Act 1900 (NSW), where a joint criminal enterprise is established, each participant bears criminal responsibility for acts carried out by any member of the group, even where the specific perpetrator of individual acts cannot be identified.
  • Diagnosed psychological conditions do not automatically reduce the weight given to general deterrence; the sentencing court must be satisfied on the balance of probabilities that a causal connection exists between the condition and the offending before such a reduction is warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 59(2) (assault occasioning actual bodily harm whilst in company)

Cases:
- R v Youkhana [2020] NSWDC 100 (sentence of co-accused, applied for parity purposes)