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District Court 16 September 2021

R v Drummond

[2021] NSWDC 510

Assault & violence

Citation: R v Drummond [2021] NSWDC 510
Court: District Court of New South Wales
Date: 16 September 2021
Judge: Sutherland SC DCJ

Background

The appellant, a 20-year-old man, was convicted in Hornsby Local Court of two counts of common assault arising from a night out in December 2020. The offences occurred at and outside the Orchard Hotel in Chatswood against the backdrop of an earlier altercation at the Greengate Hotel in Killara, where the appellant had made a lewd and offensive comment to a woman he did not know.

At the Orchard Hotel, the same woman approached the appellant and took a photograph of him on her mobile phone. The appellant snatched the phone, triggering a struggle before staff intervened. During the process of being physically ejected from the hotel, the appellant struck an uninvolved bystander on the left side of the head. After leaving the premises, he struck the woman in the face with his fist, knocking her to the ground. A separate charge relating to the destruction of the woman's phone had been resolved by the Local Court by way of a release order without conviction.

The appeal to the District Court was not a challenge to the findings of guilt. Rather, the appellant challenged the recording of a conviction on the two assault charges, arguing that a conditional release order without conviction was the appropriate outcome given his age, personal circumstances, and the isolated nature of the conduct.

  • Whether the recording of a conviction was necessary in the circumstances, or whether a conditional release order without conviction adequately addressed the relevant sentencing considerations, including general deterrence.
  • Whether the Local Court magistrate's decision to record convictions was excessive in light of the appellant's age, prior good character, personal circumstances during 2020, and the degree of provocation present in the lead-up to at least one of the assaults.

Decision

His Honour accepted that the assaults on both the woman and the innocent bystander required appropriate judicial disapprobation, and he acknowledged the Crown's submission that general deterrence was an important consideration in cases involving unprovoked physical violence. The court noted, however, that the conduct was properly characterised as an isolated aberration by a young man with no prior record, occurring against the background of significant personal difficulties and excessive alcohol consumption.

Drawing on the Court of Criminal Appeal's analysis in The Queen v Mauger [2012] NSWCCA 51, Sutherland SC DCJ reaffirmed that a decision not to record a conviction is not automatically equivalent to imposing an inadequate or lenient sentence. The conditional release order itself, by virtue of its terms and duration, carries a sufficient deterrent connotation.

His Honour found that the requirements of general deterrence were adequately met by the conditional release orders, and that the necessity of recording a conviction had not been established. The appeal was upheld, the conviction quashed, and the appellant released on conditional release orders confirming those imposed by the magistrate, running from the date of the District Court's orders.

Orders Made

  • The appeal is upheld.
  • The conviction is quashed.
  • The appellant is released on conditional release orders confirming those imposed by the magistrate:
  • Nine months in relation to the common assault on the male bystander.
  • Fourteen months in relation to the assault on the woman.
  • The orders run from the date of the District Court's decision (16 September 2021).

Key Takeaways

  • The District Court confirmed that declining to record a conviction is not, of itself, indicative of an inadequate or unduly lenient sentence, consistent with the principle established in Mauger.
  • A conditional release order without conviction can satisfy the requirements of general deterrence where its terms and duration reflect the seriousness of the conduct, even in cases involving physical violence.
  • Age, prior good character, genuine rehabilitation steps, and the isolated nature of offending are relevant factors when a court considers whether recording a conviction is necessary.
  • Where at least one victim contributed a degree of provocation, that consideration may weigh in favour of a less punitive outcome, though it does not excuse the conduct.
  • In upholding the appeal, the District Court confirmed that the magistrate's decision to record convictions was not the only appropriate outcome on the facts, and that the conditional release order without conviction more suitably balanced the relevant sentencing principles.

Legislation and Cases Referenced

Cases:
- The Queen v Mauger [2012] NSWCCA 51

Legislation:
- Section 10 of the (then applicable) Crimes (Sentencing Procedure) Act 1999 (NSW) (conditional release order without conviction, now replicated in the terms of the current sentencing framework)