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District Court 29 October 2020

R v FOSTER

[2020] NSWDC 648

Assault & violence
CRIME GRIEVOUS BODILY HARM IN COMPANY SENTENCING RELEVANT FACTORS ON SENTENCING PLEA OF GUILTY GENERAL DETERRENCE

Citation: R v Foster [2020] NSWDC 648
Court: District Court of New South Wales
Date: 29 October 2020
Judge: Lerve DCJ

Background

In the early hours of 30 June 2019, a street altercation erupted near Manly's Sydney Road after a trivial exchange outside a kebab shop. The offender and two companions had been walking behind a group that included the victim. Following an exchange of insults, pushing and shoving broke out, during which the victim was knocked to the ground.

While the victim lay on the ground in a foetal position, the offender stood over him and punched him three times to the face and head with a clenched fist, then kicked him three times, and stomped on his head. The offender's two companions also kicked the victim to the leg and torso. The assault ended only when bystanders physically intervened.

The victim suffered severe injuries requiring two separate surgeries: open reduction and internal fixation of multiple facial fractures (with three metal plates inserted), and arthroscopic surgery to repair tibial fractures in his left knee (with four wires inserted). He was hospitalised for ten days.

  • What was the appropriate starting sentence for an offence of causing grievous bodily harm in company, having regard to the standard non-parole period of five years and the maximum penalty of 14 years?
  • What discount applied for the guilty plea, and at what point did it crystallise?
  • Whether special circumstances existed justifying a non-parole period below the statutory default ratio.
  • How to weigh the offender's age, rehabilitation prospects, ADHD diagnosis, and intoxication against the objective seriousness of the offending and the need for general deterrence.

Decision

Objective seriousness and the in-company element

Lerve DCJ assessed the offending as above mid-range in objective seriousness. The injuries were severe and the assault prolonged and sustained, with punches, kicks, and a deliberate stomp to the head of a defenceless victim already on the ground. The court acknowledged that the in-company element (which elevates the offence from a basic grievous bodily harm charge) was complicated by the fact that the co-offenders' involvement was less extreme than the offender's own conduct. The court drew on the principle that, for result offences, the severity of injuries is a primary indicator of objective seriousness, but the nature of the assault itself remains relevant.

Intoxication

The offender had no memory of the incident, which the court accepted. Heavy alcohol consumption at a function preceded the events. The court noted that intoxication does not mitigate culpability; it can, in some circumstances, increase it. The court declined to treat the offender's intoxication as a mitigating factor.

Subjective matters and special circumstances

The offender was 21 years old at the time of the offence and 22 at sentence. He had no prior criminal history, had entered a plea of guilty early (attracting a full 25% utilitarian discount), and had demonstrated genuine remorse. He had maintained stable employment and had the support of family and his employer. He had been diagnosed with ADHD, which the court accepted as a relevant but not determinative factor. The court found special circumstances in the need for an extended period of supervised parole to support the offender's reintegration and ongoing treatment.

Sentence

After applying the 25% discount to a starting range of 3.5 to 4 years, the court arrived at a total sentence of 2 years and 9 months. The non-parole period was set at 1 year and 6 months, representing approximately 54% of the total term. The court noted this departure from the standard two-thirds ratio was justified by the special circumstances identified, including the offender's youth, absence of criminal history, and the significant supervision and support he would require upon release.

Orders Made

  • The offender was convicted of causing grievous bodily harm in company, reckless as to causing actual bodily harm, contrary to the Crimes Act 1900.
  • Total sentence of 2 years and 9 months imposed.
  • Non-parole period of 1 year and 6 months, commencing 29 October 2020 and expiring 28 April 2022.
  • Balance of term on parole of 1 year and 3 months, from 29 April 2022 to 28 July 2023.
  • Release to supervised statutory parole at the expiration of the non-parole period.

Key Takeaways

  • For result offences such as grievous bodily harm, the District Court confirmed that the severity of the victim's injuries is a primary measure of objective seriousness, though the nature and duration of the assault remains independently relevant.
  • Where an offender's conduct within a group attack is more severe than that of co-offenders, the sentencing court may treat the in-company element with some circumspection, even though the in-company charge itself is established.
  • Intoxication does not automatically mitigate culpability in cases of serious violence; the court applied established authority that it may in some circumstances increase it.
  • A full 25% utilitarian discount applied because the guilty plea was entered at the earliest available opportunity before the Magistrate and maintained at the District Court sentencing hearing.
  • Special circumstances were established on the facts, reducing the non-parole period to approximately 54% of the total sentence, with the court emphasising the offender's youth, diagnosis of ADHD, genuine rehabilitation, and the importance of supervised reintegration into the community.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- R v Mitchell & Gallagher (2007) 177 A Crim R 94
- McCullough v R [2009] NSWCCA 94
- R v McNaughton (2006) 66 NSWLR 566
- R v Dodd (1991) 57 A Crim R 349
- Hili & Jones v The Queen [2010] HCA 45
- R v Loveridge (2014) 243 A Crim R 31
- Brown v The Queen [2014] NSWCCA 215
- Hoskins v R [2016] NSWCCA 157
- Davis v R [2018] NSWCCA 67
- Fenech v R [2018] NSWCCA 160
- R v Fangaloka [2019] NSWCCA 173
- Karout v R [2019] NSWCCA 253
- Dungay v R [2020] NSWCCA 209
- Locke v R (2010) 207 A Crim R 34
- R v Anderson [2012] NSWCCA 175