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District Court 23 November 2020

R v Robinson

[2020] NSWDC 837

Assault & violenceHomicide
INTOXICATION

Citation: R v Robinson [2020] NSWDC 837
Court: District Court of NSW
Date: 23 November 2020
Judge: Bright DCJ

Background

The offender, a 22-year-old man, pleaded guilty to one count of assault causing death under s 25A(1) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 20 years' imprisonment with no prescribed standard non-parole period.

The victim was a 57-year-old man with significant health vulnerabilities, including stroke-related mobility impairment, cirrhosis, and a dependence on a walking stick. On the evening of 6 November 2018, the offender verbally abused the victim outside a liquor store in Gosford, then pushed him from behind. When the victim swung his walking stick in response, the offender struck him on the left side of the face or head with an open hand. The victim fell immediately, struck the ground, and never regained consciousness. He died on 8 November 2018 from blunt force head injury.

The offender was arrested the same night and had remained in custody on a bail-refused basis since 6 November 2018. He also faced breach proceedings in relation to two bonds imposed by the Maitland Local Court in July 2018.

  • What sentence was appropriate for assault causing death, taking into account the objective seriousness of the offence and the offender's subjective circumstances?
  • What discount should apply for the guilty plea, given its timing?
  • What weight should be given to the offender's intoxication at the time of the offence?
  • What weight should be given to the offender's mental health history, including ADHD and substance use issues?
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the parole period.
  • How to deal with the breaches of the two Maitland Local Court bonds.

Decision

Bright DCJ found the objective criminality to be very serious. The offence was a completely unwarranted act of violence against a visibly frail and vulnerable victim, committed in a public place for no legitimate reason. The Court observed that general and specific deterrence are significant considerations in cases of this kind, and that the community is entitled to expect that those who commit unprovoked acts of violence causing death receive substantial sentences.

The Court applied a 25% discount to reflect the guilty plea, which had been entered at the Gosford Local Court on 6 December 2019. The starting sentence before discount was 6 years and 6 months. The Court also accepted that the offender's period in custody during the COVID-19 pandemic had been more onerous than usual, given the suspension of in-person visits.

In addressing subjective matters, the Court took into account the offender's age, his ADHD diagnosis, and his substance use difficulties. Intoxication was also a relevant factor, though it does not excuse the conduct. The Court was satisfied that imprisonment was the only appropriate penalty.

Special circumstances were found to exist. The offender's first time in custody, combined with his need for ongoing treatment for ADHD and substance use issues upon release, justified a variation of the statutory one-third ratio between the non-parole period and the balance of term. The Court imposed equal non-parole and balance-of-term periods, each of 2 years and 5 months.

Orders Made

  • The offender was convicted of one offence of assault causing death under s 25A(1) of the Crimes Act 1900 (NSW).
  • Total sentence of 4 years and 10 months' imprisonment, backdated to commence on 6 November 2018.
  • Non-parole period of 2 years and 5 months, expiring 5 April 2021; balance of term of 2 years and 5 months, expiring 5 September 2023.
  • First eligible for parole on 5 April 2021.
  • Special circumstances found; statutory ratio varied accordingly.
  • Breaches of both Maitland Local Court bonds found proved; each bond revoked.
  • Community correction order of 12 months imposed for the bond breaches, commencing 23 November 2020 and expiring 22 November 2021, subject to standard conditions.

Key Takeaways

  • Assault causing death under s 25A(1) of the Crimes Act 1900 (NSW) carries a maximum of 20 years' imprisonment and no standard non-parole period, leaving the sentencing court with significant discretion calibrated to objective seriousness and subjective circumstances.
  • A guilty plea entered at the Local Court stage, rather than closer to the trial date, attracted a 25% discount in this case, reflecting the utilitarian value of the early resolution.
  • Where an offender is serving their first period of custody and has identifiable rehabilitation needs, such as treatment for ADHD and substance use disorders, a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) may be justified to extend the parole period beyond the statutory one-third balance.
  • The vulnerability of the victim, including pre-existing physical frailty and reliance on a walking stick, was a relevant feature of the objective circumstances of the offending.
  • Custody conditions during the COVID-19 pandemic, particularly the suspension of personal visits, were accepted as a factor making the period of imprisonment more onerous, and were taken into account in the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 44(2)

Cases
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
- Pattalis v R [2013] NSWCCA 171
- R v Garth No 2 [2017] NSWDC 471
- R v Imbornone [2017] NSWCCA 144
- R v Johnson (No 5) [2017] NSWSC 1169
- R v Wood [2014] NSWCCA 184
- R v Yardley [2019] NSWCCA 291