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District Court 1 March 2021

R v Plunkett

[2021] NSWDC 41

Assault & violence
CRIMINAL LAW SENTENCING COMMON ASSAULT

Citation: R v Plunkett [2021] NSWDC 41
Court: District Court of New South Wales
Date: 1 March 2021
Judge: Abadee DCJ

Background

The offender, a 21-year-old man at the time of sentencing, pleaded guilty to common assault under s 61 of the Crimes Act 1900 (NSW). The offence had been charged by indictment but was capable of being dealt with summarily. The plea was entered on re-arraignment before a jury on 25 February 2021.

The assault occurred in the early hours of 4 December 2019 at a hotel in Double Bay. Mobile phone footage showed the offender punching the victim in the back of the head on multiple occasions, during what appeared to be the aftermath of a broader fight. The offender was 19 years old at the time.

The offender had been on bail for an unrelated drug supply offence at the time of the assault. He was subsequently convicted of that drug offence in February 2020, making it a relevant prior conviction for sentencing purposes.

  • What objective seriousness applied to this common assault, given the circumstances of the fight and that blows were struck from behind?
  • Whether the court could take into account actual bodily harm suffered by the victim or the fact that the assault was committed in company, given the De Simoni principle.
  • Whether the offender had demonstrated genuine remorse and contrition.
  • What sentencing disposition was appropriate, weighing the aggravating and mitigating factors?

Decision

Abadee DCJ assessed the offending as mid-range in objective seriousness for an offence of its kind. The punches were delivered from behind, meaning the victim had no opportunity to take protective steps, creating a real risk of serious injury. However, the assault occurred in the context of a fight whose origins were unknown, and the court could not conclude that the offender had initiated or premeditated the confrontation.

Consistent with the De Simoni principle (which prevents a court from punishing an offender for elements of a more serious offence of which they have not been convicted), Abadee DCJ held that neither the actual bodily harm suffered by the victim nor the fact that another person was present during the assault could be taken into account. The absence of substantial injury was, however, treated as a mitigating factor in the offender's favour.

The court rejected the submission that the offender had demonstrated genuine remorse or contrition. His letter to the court focused on his own injuries and bail conditions rather than accepting responsibility for the assault. The father's reference even suggested the offender believed he had acted in self-defence. The guilty plea attracted a 25% sentencing discount under s 25D(3)(a1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), but the court found little additional basis for leniency on subjective grounds.

Abadee DCJ expressed concern about the offender's pattern of conduct, noting two criminal matters within six months arising from drug and alcohol-related contexts. The court considered the extended bail conditions the offender had already experienced to have had a salutary effect, and took his youth, employment, TAFE studies, and character references into account. A conviction was recorded, and the court declined to impose a custodial sentence, instead making a conditional release order with an additional drug and alcohol rehabilitation direction.

Orders Made

  • The offender was found guilty of common assault contrary to s 61 of the Crimes Act 1900 (NSW).
  • A conditional release order was imposed for one year, commencing 1 March 2021, with standard conditions: no further offences and appearance before the court if called upon.
  • Pursuant to s 99(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the offender was directed to participate in a drug and alcohol rehabilitation program as determined suitable by a community corrections officer under cl 189D of the Crimes (Administration of Sentences) Regulation 2014.
  • A charge on a s 166(1) certificate was withdrawn.

Key Takeaways

  • The De Simoni principle operates strictly in common assault sentencing: courts cannot treat actual bodily harm or the presence of a co-offender as aggravating features, because those matters form elements of distinct, more serious offences.
  • A guilty plea alone does not establish remorse or contrition. The District Court here separated the statutory plea discount from any independent leniency for contrition, finding the latter was not made out on the evidence.
  • Offending committed while on bail remains a recognised aggravating factor, capable of limiting the scope for a more lenient outcome even for a first-time custodial eligible matter.
  • Youth and positive subjective circumstances (employment, study, character references) remained relevant mitigating considerations, even where prior good character could not be unqualifiedly found due to a recent conviction.
  • Under s 99(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a conditional release order can be coupled with a direction to undertake drug and alcohol rehabilitation, allowing the sentencing court to address identified criminogenic risk factors without imposing imprisonment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 61
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 25D, 99
- Criminal Procedure Act 1986 (NSW) s 157
- Crimes (Administration of Sentences) Regulation 2014 cl 189D

Cases
- R v Abboud [2005] NSWCCA 251
- R v Tran [2005] NSWCCA 35