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District Court 11 August 2022

R v Whittall

[2022] NSWDC 664

Assault & violencePublic order & justice offences
CRIME AFFRAY SENTENCING RELEVANT FACTORS ON SENTENCE BUGMY FACTORS

Citation: R v Whittall [2022] NSWDC 664
Court: District Court of New South Wales
Date: 11 August 2022
Judge: Haesler SC DCJ

Background

The offender had previously appeared before the same judge in 2020, when he was sentenced for an intimidation offence and placed on an Intensive Correction Order (ICO) for 18 months rather than a full-time custodial sentence. His compliance with that order was described as reasonably satisfactory.

In February 2021, the offender became involved in a physical altercation at a Wollongong club. The dispute originated from damage to a car the offender had been minding for the victim while the victim was in custody. The offender punched the victim, while a co-offender attacked the victim with a knife, causing injury. The offender was charged with reckless wounding causing actual bodily harm and affray under s 93C(1) of the Crimes Act 1900.

The offender denied the wounding charge but offered to plead guilty to affray in the Local Court. That offer was not accepted at the time. The serious charge triggered a breach of his ICO, and he was bail refused, spending eight months in custody serving out the remainder of that order. The affray plea was ultimately accepted when the matter came before the District Court on indictment, and the wounding charge did not proceed.

  • Whether the seriousness of the affray offence, committed while the offender was subject to an ICO, crossed the threshold requiring a custodial sentence under s 5 of the Crimes (Sentencing Procedure) Act 1999
  • Whether Bugmy factors (disadvantaged background, mental health, and normalised drug use from childhood) bore on the appropriate sentence
  • How the parity principle applied, given the co-offender (who wielded the knife) received an ICO of seven months
  • Whether the practical effect of time already served, and the absence of any supervision available under a fixed-term sentence, justified a non-custodial disposition

Decision

Haesler SC DCJ accepted that the offence was a serious example of its type and would ordinarily warrant a custodial sentence. It was committed while the offender was on an ICO, occurred in a public setting, involved a co-offender armed with a knife, and put others in fear. The Crown submitted the s 5 threshold had been crossed.

The judge gave significant weight to the Bugmy factors identified in a forensic psychology report. The offender grew up in a household marked by mental illness and drug use, attended behavioural schools, and had drug use normalised before he could make rational choices. His lack of insight into his offending was noted, but attributed to his personal history rather than treated as an aggravating circumstance.

Parity with the co-offender was also relevant. The co-offender, who had a worse criminal record and had used the knife, received a seven-month ICO. Imposing more than seven months on this offender would, the judge found, give rise to a justifiable sense of grievance.

Critically, the judge reasoned that because any custodial sentence would have effectively expired by the sentencing date (given the eight months already served), imposing a fixed term would have resulted in release with no supervision, no monitoring, and no community support. That outcome was characterised as contrary to both the community interest and the offender's own interests. Pragmatism therefore required a lesser disposition, and a Community Correction Order was imposed instead.

Orders Made

  • Convicted of affray
  • Guilty plea discount of 25% applied under s 25D of the Crimes (Sentencing Procedure) Act 1999
  • Community Correction Order imposed for 12 months under s 8(1) of the Crimes (Sentencing Procedure) Act 1999 (in lieu of imprisonment)
  • Standard conditions of the order apply
  • Additional conditions: 100 hours of community service work; supervision by Community Corrections NSW (Wollongong District Office) for the duration of the order; report to Community Corrections within 7 days
  • Forensic psychology report of Anne Lucas (dated 9 August 2022) to be forwarded to the Community Corrections Officer at Wollongong
  • Common assault charge withdrawn and dismissed

Key Takeaways

  • Where a custodial sentence, if imposed, would have already effectively expired by the sentencing date, the District Court held that a fixed term releasing an offender without any supervision or support is contrary to the community interest and may justify a non-custodial order.
  • Bugmy factors, including a deprived upbringing, childhood exposure to drug use and mental illness, and limited opportunities for rational choice formation, were treated as mitigating circumstances that reduced the weight of general deterrence even for a serious public-order offence.
  • The parity principle constrained the available range: because the co-offender (who had the worse record and used the weapon) received a seven-month ICO, a longer or harsher sentence for this offender would have produced a justifiable grievance.
  • A plea offer made in the Local Court and refused, then accepted later on indictment, was noted as a factor affecting the course of proceedings; the delay meant a matter that might have been resolved summarily instead came before the District Court.
  • Practical sentencing considerations, including the offender's current employment, available supervision plans, and the absence of any monitoring under a spent custodial term, were weighed alongside orthodox sentencing principles in reaching the disposition.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93C(1) (affray)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 8(1), 25D

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- R v Whittall [2020] NSWDC 146