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District Court 25 February 2022

R v Assaf

[2022] NSWDC 466

Assault & violence

Citation: R v Assaf [2022] NSWDC 466
Court: District Court of NSW
Date: 25 February 2022
Judge: M L Williams SC DCJ

Background

The offender, born in 1998, pleaded guilty to one count of reckless wounding in company contrary to 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 was lured into a car in Rockdale under the pretense of facilitating a drug transaction, then violently assaulted by the offender and two other men as the car travelled through Bardwell Valley.

The assault was triggered by the offender confronting the victim over a text message the victim had accidentally sent to the wrong number, in which he had threatened to call police. During the assault, the victim suffered a 16-centimetre wound running from his right ear across his right cheek, requiring emergency surgery including repair to a facial nerve, muscle, and parotid gland. The precise instrument that caused the wound could not be attributed to any one of the three men in the car.

The offender had been sentenced alongside a co-offender, Mr Daher, whose sentence of two years and nine months (with an 18-month non-parole period, including a 25% plea discount) had been imposed by the same judge in November 2021. This prior sentence created both a reference point and a complication for the current sentencing exercise, particularly on the question of parity between co-offenders.

  • What was the appropriate sentence given the offender's participation in the joint criminal enterprise, including his role as initiator of the confrontation?
  • How should pre-sentence custody be calculated, including periods served on remand and under an unrelated custodial sentence?
  • Did parity principles require that the offender receive a lesser sentence than the co-offender Mr Daher, given differences in criminal history, plea discount, and level of physical involvement?
  • How should the two additional matters on the s 166 certificate (failing to disclose identity and possession of cannabis) be dealt with?

Decision

The court accepted that the offender participated in the assault on the basis of a joint criminal enterprise in its extended form. Although the reckless wounding itself was incidental to the agreed plan, the offender foresaw the possibility of actual bodily harm occurring. The court found that the word "also" inserted in the agreed facts for this proceeding, which was absent in the Daher sentencing, supported the inference that all three men, including the offender, were equally involved in throwing punches. This distinguished the offender's level of physical involvement from a finding that he had been more culpable than Daher.

On the question of parity, the court noted that the offender had initiated the antagonism that led to the assault. However, it accepted the defence submission that the offender's less serious criminal history, combined with a greater plea discount (5% compared to Daher's 25%), and better rehabilitation prospects, balanced against that initiating role. The court declined to find a difference in moral culpability under the De La Rosa framework but concluded that the starting point of 44 months applicable to Daher was equally applicable to the offender.

On pre-sentence custody, the court calculated that the offender had spent approximately four months on remand after arrest in November 2019, plus three additional months in custody awaiting sentencing on this matter (arising from a delay in being sentenced on an unrelated larceny). Taking into account principles of totality, the court allowed a total of ten months of backdated custody, commencing the sentence on 25 April 2021.

The two matters on the s 166 certificate, failing to disclose the identity of the driver or passenger and possessing 1.58 grams of cannabis, were each dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999, meaning a conviction was recorded but no further penalty imposed.

Orders Made

  • The offender was convicted of reckless wounding in company.
  • A sentence of 41 months imprisonment was imposed (reflecting a 5% plea discount), commencing 25 April 2021.
  • A non-parole period of 22 months was imposed, expiring 24 February 2023.
  • Special circumstances were found.
  • Both s 166 certificate matters (failing to disclose identity; possession of cannabis) were dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999: convictions recorded, no further penalty imposed.

Key Takeaways

  • Where co-offenders are sentenced by the same judge for involvement in the same joint criminal enterprise, parity principles require that any disparity in outcome be explicable and not produce a justifiable sense of grievance, as confirmed by reference to R v Postiglione (1991) 24 NSWLR 58.
  • Differences in plea discounts between co-offenders are a legitimate factor in the parity analysis; a larger discount received by one offender can justify a lower head sentence without necessarily reflecting a difference in objective culpability.
  • The District Court treated the offender's role as initiator of the confrontation as an aggravating feature, even where his level of physical participation was found to be equivalent to that of a co-offender.
  • Pre-sentence custody calculations can encompass periods spent in custody on unrelated matters where those periods are sufficiently connected to the delay in sentencing for the offence in question, subject to the court's discretion and principles of totality.
  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction for minor offences on a s 166 certificate without imposing any further penalty, a course the District Court took here for both a drug possession charge and a charge of failing to identify a driver or passenger.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 166

Cases
- R v Daher [2021] NSWDC 739
- R v Thomas [2007] NSWCCA 269
- R v Qutami (2001) 127 A Crim R 369
- Imbornone v The Queen [2017] NSWCCA 144
- Bugmy v The Queen (2013) 249 CLR 571
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- R v Postiglione (1991) 24 NSWLR 58