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District Court 13 December 2021

R v Munshizada

[2021] NSWDC 679

Assault & violencePublic order & justice offences
SENTENCE AFFRAY PROSPECTS OF REHABILITATION HARDSHIP OFFENDERS SENTENCED PARITY PRINCIPLE

Citation: R v Munshizada [2021] NSWDC 679
Court: District Court of New South Wales
Date: 13 December 2021
Judge: Abadee DCJ

Background

The offender, an inmate at Parklea Correctional Centre, was found guilty by jury of affray following a trial in November 2021. The charge arose from an incident on 1 September 2019 in which the offender engaged in violent conduct towards a fellow inmate, Stephen Stanley, in circumstances that would cause a person of reasonable firmness present at the scene to fear for their personal safety, contrary to s 93C(1) of the Crimes Act 1900 (NSW).

CCTV footage from three camera angles captured a substantial portion of the incident. The footage showed Stanley throwing the first punch (which the offender ducked), the offender then delivering repeated punches to Stanley, and co-offender Cameron Scollie moving in behind Stanley to restrain him while the offender continued to punch. Stanley ended up on the ground.

At trial, the offender raised self-defence, arguing he responded only because he believed it was necessary to defend himself against an unprovoked attack. The jury rejected self-defence, finding the Crown had negatived at least one of its required elements to the requisite standard.

  • Whether the facts established at trial, particularly regarding pre-planning and whether the offender stamped on the victim's head, were proved beyond reasonable doubt for sentencing purposes
  • How the objective seriousness of the affray should be assessed, including the relevance of the custodial setting
  • The weight to be given to subjective factors, including the offender's significant criminal history, personal deterrence, prospects of rehabilitation, and the effects of the COVID-19 pandemic on the offender while in custody
  • Whether a fixed term of imprisonment (with no non-parole period) was appropriate, having regard to the imminent Supreme Court sentencing for murder
  • How the parity principle applied given co-offenders (Stanley, Shamim, and Scollie) had also been or were to be sentenced

Decision

Abadee DCJ accepted that, while there were circumstances suggestive of pre-planning, the Crown had not proved pre-arrangement beyond reasonable doubt. The judge reasoned that any such plan would improbably have needed to anticipate that the victim would throw the first punch and precisely when he would do so. The judge also declined to find, on the evidence, that the offender had stamped on the victim's head, preferring the evidence of Corrective Officer Kitson (who attributed the stamping to two other inmates) over that of Officer Brown.

On objective seriousness, the judge characterised the affray as a sustained period of violence, albeit short in duration, with no evidence of substantial injury to Stanley. The judge regarded it as a significant aggravating feature that the offender continued punching Stanley while Scollie restrained the victim, rendering Stanley effectively helpless. The custodial setting was treated as an elevating factor, given that prison violence tends to undermine gaol discipline and respect for authority.

On subjective matters, the offender's significant criminal history heightened the weight given to personal deterrence and community protection. The judge acknowledged the effects of the COVID-19 pandemic on the offender's time in custody, but noted this had limited mitigating force given the overall circumstances.

The judge concluded that a fixed term with no non-parole period was appropriate. The offender was due to be sentenced in the Supreme Court for multiple murders on 17 December 2021, and the sentence imposed in the District Court would effectively be subsumed within the far more severe penalty expected on that occasion. The commencement date was set from the date of sentencing, with the judge declining to backdate it.

Orders Made

  • The offender was convicted of affray on the indictment.
  • A fixed term of imprisonment of 11 months was imposed, commencing 13 December 2021 and expiring 12 November 2022.
  • All COVID-19 forms were directed to be destroyed.

Key Takeaways

  • The District Court confirmed that, following a jury verdict, facts adverse to an offender must be proved beyond reasonable doubt, while mitigating facts need only be established on the balance of probabilities, applying The Queen v Olbrich (1999) 199 CLR 270.
  • Violence committed by inmates within a correctional facility is treated as objectively more serious than comparable conduct occurring outside custody, given its tendency to undermine prison discipline and authority.
  • A continuing assault on a victim who has been rendered effectively helpless by a co-offender's restraint is a significant aggravating feature in assessing the gravity of an affray.
  • Where an imminent and far more severe sentence in a superior court is expected to subsume a District Court sentence, imposition of a fixed term with no non-parole period may be appropriate.
  • Applying the parity principle, the sentencing court was required to have regard to sentences already imposed or anticipated for co-offenders (Stanley, Shamim, and Scollie) so as to avoid any of them having a justifiable sense of grievance about the disparity in their treatment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 93C (affray)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 56

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Clinton v R [2009] NSWCCA 276
- R v Daley [2010] NSWCCA 223
- R v Shamim (District Court (NSW), Herbert DCJ, 19 October 2021, unreported)
- R v Stanley [2020] NSWDC 879
- R v Way (2004) 60 NSWLR 168
- Stevens v R [2007] NSWCCA 152
- The Queen v Olbrich (1999) 199 CLR 270
- Veen v The Queen (No 2) (1988) 164 CLR 465