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District Court 8 December 2022

R v STOLL; R v McGRATH; R v SMITH; R v TRIFFIT

[2022] NSWDC 612

Assault & violence
SENTENCE GRIEVOUS BODILY HARM WITH INTENT EXTENDED JOINT CRIMINAL ENTERPRISE FACT FINDING AFTER TRIAL BY JURY

Citation: R v Stoll; R v McGrath; R v Smith; R v Triffit [2022] NSWDC 612
Court: District Court of New South Wales
Date: 8 December 2022
Judge: Lerve DCJ

Background

Four offenders were convicted by a jury on 5 July 2022 of causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years. All four had pleaded not guilty, requiring the Crown to prove its case at trial.

The offence occurred in the early hours of 14 May 2020 at Junee, at the home of one of the offenders (McGrath), who had previously been in a relationship with the victim. Text message evidence established significant prior planning, particularly between two of the offenders (Smith and McGrath), to have the victim assaulted. The victim attended McGrath's home that night and, after McGrath left the bedroom, another offender (Stoll) struck the victim across the face with a machete, causing grievous bodily harm. The victim then wounded Stoll with a knife. The remaining two offenders (Smith and Triffit) arrived shortly after and transported Stoll to hospital.

The Crown's case rested on the doctrine of extended joint criminal enterprise, under which all four offenders were held criminally responsible for the assault even though only one physically delivered the blow.

  • Whether the sentencing court was obliged, following a jury verdict, to find facts in the manner most favourable to the offender
  • How the applicable standard of proof applied to fact-finding at the sentencing stage after a contested trial
  • What sentences were appropriate having regard to the significantly different roles and circumstances of each of the four offenders

Decision

On the fact-finding question, Lerve DCJ considered submissions that, following Cheung v The Queen (2001) 209 CLR 1, any reasonable doubt must be resolved in favour of the offender, effectively requiring sentencing on the most favourable version of the facts. His Honour rejected a broad reading of that proposition. Relying on Filippou v The Queen (2015) 256 CLR 47 and R v Olbrich (1999) 199 CLR 270, His Honour held that a sentencing court is not bound to accept an offender's favourable version of events simply because the prosecution has not disproved it beyond reasonable doubt. Where neither a prosecution-adverse fact nor an offender-favourable alternative is established to the applicable standard, the court may proceed on the basis that neither version is known.

His Honour then determined the appropriate sentences individually, giving weight to each offender's distinct role, personal circumstances, and the principles relevant to extended joint criminal enterprise. Stoll, as the person who physically struck the victim with the machete, received the longest sentence. Smith and McGrath, whose planning was central to the enterprise, received equal sentences reflecting that organisational role. Triffit, whose involvement was assessed as lesser, received a reduced starting point of four years, further discounted by ten per cent for assistance provided to authorities, producing a total sentence of three years and six months. Special circumstances were found for all four offenders, producing a non-parole period of 63 per cent of the total sentence in each case, rather than the statutory default of 75 per cent.

Certain additional matters appearing on certificates under s 166 of the Criminal Procedure Act 1986 (NSW) were dealt with by recording convictions but imposing no further penalty, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Orders Made

All four offenders convicted of causing grievous bodily harm with intent on 14 May 2020 at Junee.

  • Stoll: Total sentence 5 years. Non-parole period 3 years 2 months (commencing 9 December 2020, expiring 8 February 2024). Balance of term expiring 8 December 2025.
  • Smith: Total sentence 5 years 6 months. Non-parole period 3 years 6 months (commencing 9 May 2021, expiring 8 November 2024). Balance of term expiring 8 November 2026. (Note: sentence reopened on 21 December 2022 under s 43 of the Crimes (Sentencing Procedure) Act to correct the commencement date.)
  • McGrath: Total sentence 5 years 6 months. Non-parole period 3 years 6 months (commencing 21 December 2021, expiring 20 June 2025). Balance of term expiring 20 June 2027.
  • Triffit: Total sentence 3 years 6 months (reflecting a 10% reduction for assistance). Non-parole period 2 years 2 months (commencing 5 May 2022, expiring 4 July 2024). Balance of term expiring 4 November 2025.
  • Special circumstances found for all four offenders; non-parole period 63% of total sentence in each case.
  • Release to parole recommended for all four offenders at the expiration of their respective non-parole periods.
  • A copy of Ms Gumbert's report directed to be forwarded to the Department of Corrective Services in relation to Stoll.

Key Takeaways

  • A sentencing court is not obliged to sentence on the version of facts most favourable to an offender simply because that version has not been disproved. Filippou and Olbrich establish that where neither an adverse circumstance nor a favourable alternative is proved to the applicable standard, the court may proceed on the basis that neither is established.

  • The standard of proof at sentencing operates asymmetrically: facts adverse to an offender must be proved beyond reasonable doubt, while facts urged in an offender's favour need only be established on the balance of probabilities.

  • Under extended joint criminal enterprise, each participant's sentence appropriately reflects their individual degree of involvement, even where all share the same conviction. The District Court here imposed sentences ranging from three years and six months to five years and six months across the four offenders.

  • Where an offender has not pleaded guilty, no sentencing discount is available, though the court confirmed that proceeding to trial does not of itself increase the sentence.

  • A finding of special circumstances permitted the non-parole period for each offender to be set at 63 per cent of the total sentence, departing from the statutory default that would otherwise require a non-parole period of 75 per cent.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 43
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Bugmy v The Queen [2013] HCA 37
- Cheung v The Queen (2001) 209 CLR 1
- DPP (Cth) v De la Rosa (2010) 79 NSWLR 1
- Dungay v R [2020] NSWCCA 209
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- FS v R [2008] NSWCCA 301
- Hoskins v R [2016] NSWCCA 157
- Kinchela v R [2010] NSWCCA 167
- Knight v R [2010] NSWCCA 51
- Mbele v R [2021] NSWCCA 182
- McCullough v R [2009] NSWCCA 94
- Muldrock v The Queen [2011] HCA 39
- Nowak v R [2008] NSWCCA 89
- Quinn v DPP (Cth) [2021] NSWCA 294
- R v AD [2008] NSWCCA 289; (2008) 191 A Crim R 409
- R v Anderson [2012] NSWC