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District Court 8 April 2022

R v Maw

[2022] NSWDC 683

Assault & violence

Citation: R v Maw [2022] NSWDC 683
Court: District Court of NSW
Date: 8 April 2022
Judge: Buscombe DCJ

Background

The offender, a 23-year-old man, pleaded guilty to recklessly causing grievous bodily harm in company, contrary to s 35(1) of the Crimes Act 1900 (NSW). The offence occurred on 14 February 2021 at Toongabbie Train Station, where the offender and his two brothers attacked a stranger who was walking down a ramp from the concourse after buying food.

The assault lasted approximately 90 seconds and was captured on CCTV. The victim was pushed to the ground, kicked near the head, stomped on repeatedly, pursued when he tried to flee, and kicked again to the body and head while lying in the street. The offenders briefly moved away before returning to continue the attack. Friends of the offenders eventually intervened and the victim, left unconscious or semi-conscious, was assisted by members of the public and taken by ambulance to hospital for a three-day admission.

The victim sustained multiple rib fractures, fractures to both scaphoid bones in his hands requiring surgical fixation (including a bone graft), fractures to both orbital walls around his eye sockets, and a scalp haematoma. The screws inserted during wrist surgery are permanent.

  • What was the appropriate total sentence for an offence of recklessly causing grievous bodily harm in company, having regard to the objective seriousness of the offending?
  • How should the offender's individual role within a joint criminal enterprise be assessed against that of his co-offenders?
  • What weight should be given to the offender's youth, social disadvantage, and mental health conditions as mitigating factors?
  • Were special circumstances established justifying a departure from the standard non-parole period of five years?

Decision

Buscombe DCJ assessed the objective seriousness of the offence as falling close to the middle of the mid-range. The attack was essentially unprovoked, carried out in a public place on a Sunday afternoon against a person going about ordinary business. The offender played a persistent and significant role: he was the first to apply violence, he pursued the victim when he tried to escape, and he returned to continue the assault after briefly withdrawing. His conduct was assessed as roughly equivalent to that of his brother Daw Maw, and significantly greater than that of the younger brother, LN.

His Honour acknowledged that the victim's injuries, while not life-threatening, were significant and required surgery. The relative absence of even more severe harm was attributed to good fortune rather than any restraint on the part of the offenders.

On the subjective case, the offender was a relatively young adult at 23. His Honour applied the principle that rehabilitation and treatment should receive greater weight than general deterrence, denunciation, and retribution when sentencing young adult offenders. The offender's background of early social disadvantage and his mental health conditions were taken into account as further mitigating factors, reducing (to some degree) the weight given to general deterrence. His early guilty plea was also taken into account.

His Honour found special circumstances existed, justifying a departure from the otherwise applicable standard non-parole period of five years, and structured the sentence to allow a longer period on parole to support rehabilitation. The total sentence of three years and four months reflected an instinctive synthesis of the seriousness of the offending and the mitigating factors present.

Orders Made

  • The offender was convicted of recklessly causing grievous bodily harm in company.
  • A total sentence of three years and four months imprisonment was imposed, comprising:
  • A non-parole period of one year and ten months (expiring 10 March 2023), and
  • A balance of term of one year and six months.
  • The sentence commenced on 11 May 2021 and expires on 10 May 2024.

Key Takeaways

  • Within a joint criminal enterprise, each participant bears equal legal responsibility for all acts carried out in furtherance of the enterprise, but individual culpability is assessed by reference to each participant's specific conduct.
  • The District Court confirmed that a participant who initiates the violence, pursues the victim when he attempts to flee, and returns to continue the assault will be assessed as playing a more significant role than a participant whose involvement is more limited.
  • Sentencing young adult offenders generally calls for greater emphasis on rehabilitation and treatment over general deterrence and retribution, particularly where the offender also has a background of social disadvantage and mental health conditions.
  • Special circumstances can justify a non-parole period shorter than the standard, where the structure of the sentence better supports the offender's rehabilitation during the parole period.
  • Under s 35(1) of the Crimes Act 1900 (NSW), recklessly causing grievous bodily harm in company carries a maximum of 14 years imprisonment and a standard non-parole period of five years, which operates as a legislative guidepost rather than a fixed floor.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases
- BP v R [2010] NSWCCA 159
- Bugmy v R (2013) 249 CLR 571
- Bullock v R [2016] NSWCCA 131
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Lloyd v R [2022] NSWCCA 18
- Muldrock v R (2011) 244 CLR 120
- R v Henry (1999) 45 NSWLR 346