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District Court 2 September 2020

R v Baradaaji

[2020] NSWDC 685

Assault & violence
CRIME SENTENCE RECKLESSLY CAUSE GBH IN COMPANY

Citation: R v Baradaaji [2020] NSWDC 685
Court: District Court of New South Wales
Date: 2 September 2020
Judge: Bourke SC DCJ

Background

The offender pleaded guilty to recklessly causing grievous bodily harm in company, arising from a group assault at a service station in Wilberforce on the night of 1 September 2018. The victim, a service station attendant, had just closed the premises and activated the alarms when the offender and four or five other males arrived demanding fuel. After the attendant and his co-worker explained they could not reopen the shop, a confrontation escalated into a violent group attack.

The co-accused, Mr Cheikho, spat on the victim twice, and the offender then ran toward him. Multiple males surrounded the victim, kicked and punched him about the head and upper body while he lay unconscious on the ground. When the victim's co-worker bravely threw her motorcycle helmet at the group to stop the assault, the offender picked it up and threw it back at her, narrowly missing her head.

The victim sustained multiple jaw fractures requiring three surgeries, six weeks of wiring shut his jaw, extended braces treatment, and ongoing dental issues. He lost between 12 and 14 kilograms during his recovery. A fingerprint matching the offender was found on the co-worker's helmet, and phone intercepts placed the offender in contact with the co-accused.

  • What was the appropriate sentence for recklessly causing grievous bodily harm in company, having regard to the objective seriousness of the offence and the offender's moral culpability?
  • What discount applied for the guilty plea, and when was that plea entered?
  • Whether special circumstances existed to justify adjusting the standard ratio between the non-parole period and the head sentence.
  • How to apply totality principles where the offender was already serving a Local Court sentence.
  • What weight to give to the co-accused's sentence as a comparator.

Decision

Bourke SC DCJ assessed the offence as serious. The attack was unprovoked, carried out by a group of four to five males against a lone victim who was outnumbered and defenceless. The court characterised the assault as cowardly and noted the victim and his co-worker had been doing nothing more than closing up the service station at its usual time. The court also noted the offender's additional act of throwing the helmet at the co-worker, which it treated as an aggravating feature of his conduct.

The offender received a 10% discount for his guilty plea, entered at a pretrial mention on 12 June 2020. The court found that a sentence of full-time custody was clearly required, emphasising the importance of both general and specific deterrence given the nature of the offence.

On the question of the co-accused's sentence, the court acknowledged it was required to have regard to parity but described the sentence imposed on Mr Cheikho in separate proceedings as "very lenient." The court distinguished the offender from Mr Cheikho on the basis of lesser evidence of remorse, a later plea, and a more significant criminal history. Only a limited adjustment for special circumstances was made, based on the need for extended supervision on parole.

Totality principles were applied to avoid a crushing overall sentence, given the offender was already serving time on a Local Court sentence imposed in July 2019. The court ordered some concurrency and backdated the sentence to 4 February 2019.

Orders Made

  • Sentence of imprisonment of three years and six months, commencing 4 February 2019, expiring 3 August 2022.
  • Non-parole period of two years and four months, with eligibility for parole from 3 June 2021.
  • A limited adjustment for special circumstances was made, based on the need for extended post-release supervision.
  • A 10% discount was applied for the guilty plea.

Key Takeaways

  • The District Court treated participation in a sustained group assault on an unconscious, defenceless victim as a seriously aggravating feature warranting full-time custody, even where the precise number of blows struck by the individual offender was not established.
  • Under the joint criminal enterprise framework, individual contribution need not be precisely quantified for a finding of culpability: the offender's participation in the group attack and his separate act of throwing the helmet at the witness were both taken into account.
  • A guilty plea entered at a pretrial mention, well after committal, attracted only a 10% discount rather than the maximum available reduction.
  • Where a co-accused received a more lenient sentence in separate proceedings, the sentencing court was still required to consider that sentence for parity purposes, even while characterising it as unduly lenient and identifying features that distinguished the two offenders.
  • Totality principles required some concurrency with an existing Local Court sentence to avoid an overall term that would be crushing, with the sentence backdated accordingly.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 3A (purposes of sentencing) and the standard non-parole period provisions

Cases:
- Bugmy v R (2013) 249 CLR 571 (High Court)
- Greaves v R [2020] NSWCCA 140 (NSW Court of Criminal Appeal)