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District Court 25 February 2022

R v Toko

[2022] NSWDC 39

Assault & violence
SENTENCING

Citation: R v Toko [2022] NSWDC 39
Court: District Court of New South Wales
Date: 25 February 2022
Judge(s): Abadee DCJ

Background

The offender, an 18-year-old male, pleaded guilty to recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900 (NSW). The offence arose from a single punch thrown at a party in Blue Haven on 13 March 2021. The maximum penalty for the offence is 10 years imprisonment, with a standard non-parole period of four years.

The offender and the victim were not previously acquainted but shared a mutual friend, a young woman toward whom the offender harboured possessive feelings. Over the course of the evening, the offender made hostile overtures toward the victim, physically restrained the mutual friend on multiple occasions, and issued threats to the victim before delivering a single punch to the left side of his face.

The punch caused the victim to lose consciousness. Investigations at hospital revealed a base skull fracture, pneumocephalus (air in the skull cavity), a fracture through the left petrous temporal bone, a small blood clot, and permanent left-sided hearing loss requiring a cochlear implant. The victim was hospitalised for a week at Gosford Hospital following transfer from Wyong Hospital.

  • What was the appropriate sentence for a first-time offender who pleaded guilty to recklessly causing grievous bodily harm by way of a single punch?
  • What weight should be given to the offender's intoxication (alcohol and methylamphetamine) at the time of the offence?
  • Whether the offender's youth, background, and rehabilitation prospects constituted mitigating factors, including whether special circumstances existed to justify a longer parole period.
  • What discount applied to the sentence by reason of the guilty plea?
  • From what date the sentence should be backdated to account for time in custody.

Decision

Abadee DCJ found the offending to be objectively serious within the range of offences of this type. The assault was unprovoked, the victim had explicitly told the offender he did not want any conflict, and the injuries were severe and enduring. The offending was further aggravated by the fact that it was committed while the offender was on bail, which the court characterised as a disregard for lawful restrictions.

The court acknowledged several mitigating factors, including the guilty plea, the offender's youth and status as a first-time offender, and his difficult background as documented in the forensic psychologist's report. The offender reported consuming a full bottle of vodka and using methylamphetamine ("ice") that evening. While intoxication was not treated as an excuse, it was taken into account in assessing moral culpability in the context of the offender's overall circumstances, consistent with the principles in R v Fernando and Bugmy v R.

The court identified a starting term of three years imprisonment, then applied a discount for the guilty plea to arrive at a term of two years and three months. Because this term exceeded two years, the offender was ineligible to serve it by way of an intensive correction order. The court added that, even if the term had fallen below the two-year threshold, the offender's recent violent conduct and rehabilitation concerns would have made an intensive correction order inappropriate in any event.

Special circumstances were found to exist, warranting a longer-than-usual ratio of parole to non-parole period. These circumstances were the offender's youth, his status as a first-time offender, and significant identified needs relating to drug, alcohol, and underlying psychological issues. The court preferred the Crown's submission on the commencement date of the sentence, backdating it to 15 March 2021.

Orders Made

  • The offender was convicted of recklessly causing grievous bodily harm.
  • Sentenced to imprisonment for 2 years and 3 months, commencing 15 March 2021 and expiring 14 June 2023.
  • Non-parole period of 1 year, 4 months and 7 days, expiring 21 July 2022, after which the offender became eligible for parole.
  • The court directed that the forensic psychologist's report (Ms Leah Vircoe, dated 6 February 2022), insofar as it contained treatment recommendations, be brought to the attention of Corrective Services personnel responsible for the offender's supervision.

Key Takeaways

  • A single punch can constitute the basis for a conviction of recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900 (NSW) where the resulting injury meets the threshold for grievous bodily harm, including permanent or serious physical consequences such as a skull fracture and hearing loss.
  • Intoxication by alcohol and illicit drugs did not excuse the offending, but the sentencing court treated it as relevant to the assessment of moral culpability when considered alongside the offender's youth and background, consistent with established principles in R v Fernando and Bugmy v R.
  • Committing an offence while on bail operates as an aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW), reflecting a disregard for lawful restrictions.
  • Special circumstances justifying a longer parole period relative to the non-parole period can be established by a combination of factors including youth, first-offender status, and significant rehabilitation needs, particularly where drug and alcohol dependency intersects with a difficult personal background.
  • The District Court declined to impose an intensive correction order not only because the sentence length exceeded the two-year statutory threshold, but also on the independent ground that community protection concerns and the offender's rehabilitation prospects made such an order unsuitable.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 33, 68(1)

Cases:
- Bugmy v R (2013) 302 ALR 192
- McCullough v R (2009) 194 A Crim R 439
- Muldrock v The Queen (2011) 244 CLR 120
- Pattalis v R [2013] NSWCCA 171
- R v Bird-Walton (A pseudonym) (No 2) [2021] NSWDC 23
- R v Channells (unreported, 20 September 1997, NSWCCA)
- R v Fernando (1992) 76 A Crim R 58
- R v Loveridge [2014] NSWCCA
- R v Rosamond [2019] NSWDC 827
- Stevens v R [2017] NSWCCA 216