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District Court 14 December 2020

R v Stanley

[2020] NSWDC 879

Assault & violencePublic order & justice offences
CRIME PUBLIC ORDER OFFENCES AFFRAY

Citation: R v Stanley [2020] NSWDC 879
Court: District Court of New South Wales
Date: 14 December 2020
Judge(s): Buscombe DCJ

Background

The offender, a convicted inmate at Parklea Correctional Centre, pleaded guilty to affray under s 93C of the Crimes Act 1900 (NSW). The charge arose from a violent incident on 1 September 2019 in the correctional centre's five gate area, during which the offender and another inmate, along with others, engaged in a brief but serious physical altercation.

The entire incident was captured on CCTV footage, which the Crown tendered. No participants, other than correctional officers, made statements about the matter. The CCTV and agreed facts formed the basis of the sentencing proceedings.

The offender was aged 29 at the time of the offence and was already serving an aggregate sentence of six years with a non-parole period of three years and four months. He had a lengthy criminal history dating back to his juvenile years.

Legal Issues

  • What was the appropriate assessment of the objective seriousness of the affray, given the circumstances of the incident?
  • What weight should be given to the offender's subjective circumstances, criminal history, and early guilty plea?
  • How should the new sentence be structured in relation to the non-parole period the offender was already serving, pursuant to s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW)?

Decision

Objective seriousness of the offence

The court found that, while the offender threw the first punch, there was a reasonable inference from the CCTV footage that the victim and other inmates had planned for an incident to occur before the altercation began (at [9]-[10]). The offender and the victim had both deliberately hung back from the group moving through the gate, suggesting mutual anticipation of a confrontation (at [10]). The incident was brief, lasting approximately one minute and 20 seconds in total, with the physical altercation itself lasting about 24 seconds (at [8]). No participant suffered a significant injury, though the offender appeared to suffer the most, being set upon by multiple other inmates who punched and kicked him while he was on the ground (at [8]-[11]). The court assessed objective seriousness as towards the lower end of the scale but not at the very bottom, noting that the custodial setting made the offence more serious (at [11]).

Subjective circumstances

The offender was 30 years old at sentencing, with a criminal history dominated by property and drug offences and few offences of violence (at [12]). His record disentitled him to leniency, and his prospects for rehabilitation were assessed as no better than guarded (at [20]). He showed no evidence of remorse, though the court acknowledged that his attitude required assessment in light of the circumstances he faced in gaol that day (at [19]). The court noted that the offender had spent a very considerable part of his adult life in custody, with the longest continuous period out of custody since June 2009 being six months, placing him at risk of institutionalisation (at [21]).

Plea discount and sentencing principles

The court allowed a 25 percent discount for the utilitarian value of the early guilty plea (at [21]). The court held that offences of violence committed by inmates in prison are always serious because they undermine gaol discipline, and that both general and personal deterrence were required features of the sentencing discretion (at [22]). Imprisonment was the only appropriate sentence.

Accumulation and concurrency

Section 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied because the offender was a convicted inmate at the time of the offence, requiring the new sentence to be accumulated upon the non-parole period he was serving unless the court directed otherwise (at [23]). The court directed that the sentence run substantially concurrently with the existing non-parole period, on the basis that the offender's first opportunity to return to the community since his 2018 sentencing should not be substantially delayed (at [24]). The practical effect of the sentence was to extend his non-parole period by one month (at [24]).

Orders Made

  • The offender was convicted of affray under s 93C of the Crimes Act 1900 (NSW).
  • A fixed term of six months imprisonment was imposed, commencing 15 October 2020 and expiring 14 April 2021.

Key Takeaways

  • The District Court confirmed that violence between inmates in a custodial setting is treated as an aggravating factor in assessing objective seriousness, even where the overall seriousness falls towards the lower end of the scale (at [11]).

  • Under s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentence imposed on a convicted inmate for an in-custody offence must be accumulated upon the non-parole period being served, unless the court exercises its discretion to direct otherwise (at [23]-[24]).

  • General and personal deterrence are significant sentencing considerations for in-custody violence offences, given their potential to undermine prison discipline (at [22]).

  • Where a sentencing court directs substantial concurrency under s 56, the reasoning may include preserving a realistic prospect of the offender returning to the community within a reasonable timeframe (at [24]).

  • A 25 percent discount for an early guilty plea applied in the ordinary way, notwithstanding the offender's lack of remorse, which the court assessed in the context of the circumstances the offender faced inside the correctional centre (at [19], [21]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 93C
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 56

Cases
- Not stated