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District Court 2 July 2021

R v Jung; R v Tonazzi

[2021] NSWDC 289

Assault & violence

Citation: R v Jung; R v Tonazzi [2021] NSWDC 289
Court: District Court of New South Wales
Date: 2 July 2021
Judge: R. J. Weber SC DCJ

Background

Two offenders pleaded guilty to one count each of recklessly causing grievous bodily harm in company, contrary to section 35(1) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of five years. The joint sentencing proceedings arose from a single incident at a hotel in Neutral Bay on 20 March 2020.

The victim attended the Oaks Hotel to meet work colleagues. The offenders were at the same venue for a friend's birthday. Earlier in the evening, a member of the offenders' party believed the victim had made a racially stereotypical remark about an African friend. This led to a verbal exchange and the parties returned to their separate tables.

Several hours later, one offender approached the victim on a staircase to confront him about the earlier comment. Both offenders interpreted the victim's response, in fact he was speaking on his mobile phone and unaware of their approach, as a dismissive smirk. Both then punched the victim to the left side of his face. The victim fell to the ground and suffered catastrophic injuries, including the complete and permanent loss of vision in his left eye.

  • What was the appropriate head sentence for each offender, having regard to objective seriousness, the victim's permanent injuries, and the standard non-parole period?
  • What weight should be given to mitigating factors, including good character, early guilty pleas, remorse, mental health, and the absence of prior criminal history?
  • Whether the perceived racial provocation provided meaningful context for, or mitigation of, the offending behaviour.
  • Whether mental health issues were causatively connected to the offending and, if so, what bearing that had on each offender's moral culpability.
  • Whether the interests of justice permitted the head sentence to be served by way of an Intensive Correction Order (ICO) rather than full-time custody.

Decision

The court found the offending to be objectively serious. The victim sustained a shattered eye socket, ruptured eyeball, fractured nose and cheekbone, nerve damage, and back trauma. He lost permanent vision in his left eye and faces an ongoing risk of glaucoma, retinal detachment, and potential loss of sight in his remaining eye. The severity and permanence of those injuries weighed heavily in the sentencing exercise.

The court accepted several significant mitigating factors for both offenders. Each had no prior criminal history, had not planned or organised the violence, entered early guilty pleas attracting a 25 percent utilitarian discount, demonstrated genuine remorse, and was unlikely to reoffend. The court noted that the earlier perceived racial slight provided some context for the offending but did not constitute legal provocation. Post-incident text messages in which the offenders appeared to celebrate the attack were noted as doing them no credit, although the court also observed they did not ultimately lie to police.

Mental health material was considered in relation to each offender's moral culpability. The court accepted that mental health issues were causatively connected to the offending, which reduced each offender's moral culpability to a degree. Expert reports were tendered for both offenders, and treatment plans formed part of the orders ultimately made.

On the question of whether an ICO was appropriate, the court determined that the interests of justice were best served by the offenders serving their terms of imprisonment within the community. The court imposed identical sentences of 1 year and 10 months on each offender, to be served by way of an ICO, with conditions including psychiatric treatment and 200 hours of community service.

Orders Made

  • Each offender convicted of one count of recklessly causing grievous bodily harm in company.
  • Each offender sentenced to a term of imprisonment of 1 year and 10 months, commencing 2 July 2021 and expiring 1 May 2023.
  • Each sentence directed to be served by way of an Intensive Correction Order in the community.
  • Standard ICO conditions imposed on each offender: no further offending; supervision by a Community Corrections Officer for the duration of the order.
  • Additional conditions for Jung: compliance with the treatment plan in Dr Rafe Pulley's report dated 1 June 2021; 200 hours of community service; contact with Burwood Community Corrections within seven days.
  • Additional conditions for Tonazzi: compliance with the treatment plan in Dr Anthony Henderson's report dated 5 June 2021; 200 hours of community service; contact with Hornsby Community Corrections within seven days.

Key Takeaways

  • The District Court confirmed that the permanent and serious nature of a victim's injuries remains a central factor in assessing objective seriousness, even where offending is spontaneous and unplanned.
  • A perceived racial slight, even one that generated genuine indignation, was treated as context for the offending rather than as formal provocation reducing culpability at law.
  • Where expert evidence establishes a causative link between an offender's mental health and the commission of an offence, that connection is capable of reducing moral culpability and influencing the sentencing outcome.
  • An early guilty plea, genuine remorse, good character, and the absence of any prior record collectively carried significant mitigating weight, contributing to the court's decision to impose an ICO rather than full-time custody.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), an ICO remains available where the court is satisfied that the interests of justice are better served by community-based imprisonment, even for offences of real seriousness involving permanent injury to the victim.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Biddle v R [2017] NSWCCA 128
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Lawson v R [2018] NSWCCA 215
- Markarian v The Queen (2005) 228 CLR 357
- MDZ v R [2011] NSWCCA 243
- Pullen v R [2018] NSWCCA 264, 275 A Crim R 509
- R v Douglas [2007] NSWCCA 31
- Tepania v R [2018] NSWCCA 247, 275 A Crim R 233
- Waterfall v R [2019] NSWCCA 281
- Yun v R [2017] NSWCCA 317