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District Court 30 November 2021

R v Daher

[2021] NSWDC 739

Assault & violence

Citation: R v Daher [2021] NSWDC 739
Court: District Court of New South Wales
Date: 30 November 2021
Judge: M L Williams SC DCJ

Background

The offender, a 23-year-old man, pleaded guilty to one count of reckless wounding in company under s 35(3) of the Crimes Act 1900, carrying a maximum penalty of ten years imprisonment and a standard non-parole period of four years. The offence arose from an incident in November 2019 in which the victim, a passenger in a car, was attacked by the offender and two co-offenders following a misunderstanding over a text message. The attack caused a serious laceration approximately 15 centimetres long across the victim's face, requiring emergency surgery involving repair of a facial nerve and permanent scarring.

The offender was on bail and subject to a community corrections order at the time of the offending. He had a criminal history beginning in the Children's Court in 2013, including prior offences of affray and possession of a prohibited firearm, the latter leading to the community corrections order that was current at the time of this offence.

Between his arrest on 28 November 2019 and 19 July 2021, the offender spent approximately 600 days in pre-sentence custody, including a separate four-month fixed term served within that period for hindering an investigation. The sentencing exercise required the court to weigh that custodial history against the seriousness of the offence and the offender's subjective circumstances.

  • What weight, if any, should be given to the offender's letter expressing remorse, given that it also contained exculpatory statements and the offender had not given sworn evidence?
  • Whether it could be inferred beyond reasonable doubt that the offender personally threw punches during the group assault, given that this was not an agreed fact.
  • How the court should exercise its discretion to backdate the sentence commencement date having regard to the pre-sentence custody period and the concurrent fixed term served for a separate offence.
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the total sentence.
  • Whether the lesser charge of failing to disclose the identity of co-offenders warranted any penalty beyond a finding of conviction.

Decision

The court accepted a 25% discount on the sentence to reflect the utilitarian value of the early guilty plea, as conceded by the Crown. On the question of the offender's letter, the court applied the caution endorsed in Lai v R [2021] NSWCCA 217 and R v Elfar [2003] NSWCCA 358, noting that exculpatory material not tested by sworn evidence must be treated carefully. The letter was not entirely discounted; the court accepted the expressions of regret as carrying some weight while giving limited weight to the self-serving portions.

On the contested factual question of whether the offender personally threw punches beyond his initial attempt, the court declined to draw that inference against him, observing that had the Crown intended to establish this, it would have been reflected in the agreed facts rather than left to inference at sentence.

The court exercised its discretion to backdate the commencement of the sentence to 28 December 2019, allowing for some degree of concurrency with the separate fixed term that had been served. The court acknowledged that, absent the bail refusal on the principal charge, the offender may not have received that earlier custodial term, though it declined to second-guess the Magistrate's decision on that sentence. Both general and specific deterrence were treated as significant sentencing considerations, given the nature of the offending: group violence involving a weapon causing serious injury, committed while the offender was already on conditional liberty.

Special circumstances were found on the basis of the offender's significant mental health issues, the need for an extended supervisory period to support ongoing drug and alcohol rehabilitation, and the additional hardship of custody during the COVID-19 pandemic. These factors together justified a non-parole period shorter than the statutory standard proportion. An intensive corrections order was considered and rejected as inappropriate given the length of the term and the purposes of sentencing.

Orders Made

  • Reckless wounding in company (s 35(3), Crimes Act 1900): Convicted; sentenced to imprisonment for two years and nine months, commencing 28 December 2019, with a non-parole period of 18 months expiring 27 June 2021; special circumstances found.
  • Failing to disclose identity of driver/passengers (s 166 certificate): Convicted pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999; no further penalty imposed.

Key Takeaways

  • A sentencing court will treat an offender's letter as carrying limited weight where it contains exculpatory assertions that have not been tested by sworn evidence, consistent with the caution expressed in Lai v R and R v Elfar.
  • Where a contested factual matter is not reflected in the agreed facts, a court may decline to draw an adverse inference against the offender beyond reasonable doubt at sentencing, even in a guilty plea proceeding.
  • The District Court exercised its discretion to backdate the sentence commencement date to account for the full pre-sentence custody period, allowing some degree of concurrency where a separate short custodial term was served during that period.
  • Special circumstances justifying a reduced non-parole period ratio can be grounded in a combination of factors, including diagnosed mental health issues, rehabilitation needs, and the additional hardship of custody during the COVID-19 pandemic.
  • General and specific deterrence carry significant weight in sentencing for group violence involving weapons and serious injury, particularly where the offender has a prior record of similar offending and was on conditional liberty at the time.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(3) (reckless wounding in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 66
- Evidence Act 1995 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Devaney [2012] NSWCCA 285
- Lai v R [2021] NSWCCA 217
- R v Elfar [2003] NSWCCA 358
- R v JDX; JDX v R [2017] NSWCCA 9
- R v Qutami [2001] NSWCCA 353
- R v Thomas [2007] NSWCCA 269
- Ryan v R [2017] NSWCCA 209