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District Court 10 December 2021

R v NICHOLS

[2021] NSWDC 661

Assault & violence
CRIME SLIGHT PROVOCATION PARITY WITH CO OFFENDER DIAGNOSIS OF ADHD GENERAL DETERRENCE

Citation: R v Nichols [2021] NSWDC 661
Court: District Court of New South Wales
Date: 10 December 2021
Judge(s): Lerve DCJ

Background

In the early hours of 30 June 2019, an argument between two groups of young men on the Manly Corso escalated into a serious street brawl. The offender was one of three men involved in a sustained attack on the victim, who had been walking with friends after a night out. The altercation began with minor banter about littering and spiralled after one member of the victim's group punched one of the offender's group.

During the brawl, the offender struck the victim to the face and then, along with his co-offenders, repeatedly kicked the victim while he lay on the ground in a foetal position. The victim sustained severe injuries including multiple facial fractures and two fractures to his left leg, requiring multiple surgeries and a hospitalisation of around nine days.

The offender was sentenced on one count of recklessly causing grievous bodily harm in company, contrary to s 35(1) of the Crimes Act 1900. He pleaded guilty on the first day of trial, having communicated his intention to plead approximately two weeks earlier.

  • What was the appropriate objective seriousness of the offence, given that the offender was sentenced only in respect of the leg injuries and not the more serious facial injuries caused primarily by the co-offender?
  • How should the 5% utilitarian plea discount apply, and what weight should the plea carry for remorse?
  • How should parity with the co-offender Lachlan Foster (sentenced to 2 years 9 months with an 18-month non-parole period) inform the sentence?
  • Whether a diagnosis of ADHD warranted any reduction in sentence, and how it bore on moral culpability and prospects of rehabilitation.
  • Whether the offender's sentence could be served by way of Intensive Correction Order (ICO) rather than full-time custody, particularly in light of the need for general deterrence.
  • Whether special circumstances existed to justify a non-parole period below the statutory default ratio.

Decision

Lerve DCJ assessed the objective seriousness of the offence as a moderately serious example of its kind. Relevant factors included the gratuitous nature of the assault, the fact it occurred in company, the sustained nature of the attack on a defenceless victim on the ground, and the serious injuries resulting. The court noted, however, that the offender's liability was confined to the leg injuries, with the more severe facial fractures attributable principally to the co-offender Foster. The presence of slight provocation from the victim's group, while not excusing the conduct, was also acknowledged.

On parity, the court worked from the same starting point applied to Foster (2 years 9 months), noting that Foster had received a 25% plea discount compared to the 5% available to the offender. Had Foster received only a 5% discount, his total sentence would have been 3 years 6 months. This analysis meant the offender's lower plea discount did not, in context, produce an unjust disparity.

Regarding ADHD, Lerve DCJ acknowledged that the offender, like Foster, had been diagnosed with the condition. The diagnosis had some relevance to moral culpability and rehabilitation, but did not substantially alter the sentencing outcome. The court rejected the submission that the sentence should be served by way of ICO. Even accepting a sentence of two years or less might otherwise have supported an ICO, the need for general deterrence in cases of group violence of this nature required a term of full-time custody.

A substantial finding of special circumstances was made, reducing the non-parole period to approximately 55% of the total sentence. The court pointed to the offender's youth, the fact this was his first period of custody, and the need for an extended period of supervised parole to support reintegration and address alcohol-related risk.

Orders Made

  • The offender was convicted of recklessly causing grievous bodily harm in company, contrary to s 35(1) of the Crimes Act 1900.
  • Sentenced to a total term of 2 years 7 months (31 months).
  • Non-parole period of 1 year 5 months, commencing 10 December 2021 and expiring 9 May 2023.
  • Balance of term of 1 year 2 months (14 months), commencing 10 May 2023 and expiring 9 July 2024.
  • The offender is to be released to statutory parole at the expiration of the non-parole period.

Key Takeaways

  • A co-offender's more favourable plea discount is a relevant factor in a parity analysis: the District Court adjusted its comparison with the co-offender Foster by notating what his sentence would have been under the same 5% discount, rather than treating the discounted figures as directly comparable.
  • Where a group assault results in injuries of varying severity caused by different participants, a sentencing court may confine one offender's liability to those injuries specifically attributable to that offender's conduct, which can significantly affect the objective seriousness assessment.
  • An ADHD diagnosis may be relevant to both moral culpability and rehabilitation prospects, but the judgment does not treat it as a standalone mitigating factor capable of substantially reducing a sentence for serious group violence.
  • General deterrence in cases of gratuitous group violence can preclude an Intensive Correction Order even where the total sentence might otherwise have fallen within the two-year threshold for ICO eligibility.
  • Special circumstances justifying a reduced non-parole period were found where the offender was young, had no prior custodial experience, and required an extended supervisory period on parole to address alcohol use and support community reintegration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25C(2)

Cases:
- R v Foster [2020] NSWDC 648
- R v Mitchell; R v Gallagher (2007) 177 A Crim R 94
- McCullough v R [2009] NSWCCA 94
- Stevens v R [2017] NSWCCA 216
- Quinn v DPP (Cth) [2021] NSWCA 294
- Park v The Queen [2021] HCA 37
- Doan v R (2000) 50 NSWLR 115
- Dungay v R [2020] NSWCCA 209
- Elphick v R [2021] NSWCCA 167; R v Elphick [2021] NSWDC 1
- Greaves v R [2020] NSWCCA 140
- Imbornone v R [2017] NSWCCA 144
- Karout v R [2019] NSWCCA 253
- Lai v R [2021] NSWCCA 217
- Locke v R (2009) 207 A Crim R 34
- Mbele v R [2021] NSWCCA 182
- Toller v R [2021] NSWCCA 204
- Valentine v R [2020] NSWCCA 116
- Zrieka v R (2012) 223 A Crim R 460