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District Court 20 July 2023

R v Caulfield, R v Russell, R v Mansfield

[2023] NSWDC 347

Assault & violence
CRIME VIOLENT OFFENCES RECKLESSLY CAUSE GRIEVOUS BODILY HARM IN COMPANY

Citation: R v Caulfield, R v Russell, R v Mansfield [2023] NSWDC 347
Court: District Court of New South Wales
Date: 20 July 2023
Judge(s): Priestley SC DCJ

Background

Four offenders attacked a single victim in the early hours of 27 November 2021 in Coffs Harbour. The assault arose after the victim had himself attacked a member of the offenders' group, who then telephoned others to come to the scene. All four offenders ran toward the victim, pursued him into the street, and kicked and hit him while he lay on the ground. The victim suffered very serious injuries and was hospitalised for weeks before being transferred to assisted living. He later died, though not as a result of the assault.

Three offenders, Caulfield, Russell and Mansfield, were sentenced in these proceedings. The fourth offender, Bridge-Johnson, had his objective seriousness assessed but was not sentenced to finality, pending a sentence assessment report. A separate person, Lucy Fitzgerald, also assaulted the victim after the four offenders had walked away.

Each offender pleaded guilty to recklessly causing grievous bodily harm in company, contrary to section 35(1) of the Crimes Act 1900 (NSW), which carries a maximum of 14 years imprisonment and a standard non-parole period of five years. Mansfield also faced a Form 1 intimidation offence to be taken into account on sentence.

Legal Issues

  • What was the objective seriousness of each offender's conduct, given the involvement of Fitzgerald's subsequent assault and the varying degrees of participation?
  • To what extent did the victim's earlier assault on a member of the group ("provocation") reduce the offenders' moral culpability?
  • How did each offender's subjective circumstances, including criminal history, mental health, childhood trauma, and prospects of rehabilitation, affect the appropriate sentence?
  • Whether special circumstances existed in each case justifying a departure from the standard ratio of non-parole period to head sentence?
  • How should the parity principle be applied across three co-offenders with materially different subjective cases?

Decision

Objective Seriousness

The court assessed the offending of Caulfield, Russell and Mansfield as below the mid-range of objective seriousness for a section 35(1) offence (at [69]). The 50-second assault, while brief, constituted an extended period of hitting and kicking for the victim (at [43]). However, because Fitzgerald's subsequent assault meant the Crown could not prove beyond reasonable doubt that all injuries were wholly caused by the four offenders, the extent of harm could not be entirely attributed to them (at [41]-[42]). The offending also fell short of being impulsive: some time elapsed between Ward's call and the offenders' arrival, and the victim had to be pursued before the assault occurred (at [47]). Bridge-Johnson's conduct was placed at the top of the low range, lower than the other three, because he desisted after one or two blows and left before the assault ended (at [68]).

Provocation and Moral Culpability

The court accepted that the victim's prior assault on Ward constituted a form of provocation that reduced the moral culpability of all four offenders, without justifying or excusing their conduct (at [37]). Relying on the Court of Criminal Appeal's approach in Smith v R and R v Swan, the court found that motive is relevant to moral culpability and the weight given to personal and general deterrence, even if not determinative of objective seriousness under section 54A (at [34]-[37]).

Caulfield's Subjective Case

Caulfield was 23 at the time of the offending and was on parole, which aggravated his conduct (at [71]). He had a criminal history of violence. His psychological report identified a history of childhood sexual abuse on two occasions in government institutions, leading to substance abuse and possible schizophrenia. The court found this reduced his moral culpability, representing a second basis for leniency alongside the provocation finding (at [112]). However, his poor response to supervision and high risk of reoffending required a sentence structured around community protection (at [109]). A head sentence of four and a half years (reducing to three years and four months after a 25% plea discount) was imposed, with a non-parole period of two years commencing 28 January 2022, with special circumstances found (at [115]-[116]).

Russell's Subjective Case

Russell was 20 at the time of the offending, had a negligible criminal history, and was not on conditional liberty (at [71], [117]). The offending was found to be out of character and an aberration (at [141]). His supportive family, employment history, expressions of genuine remorse, and good prospects of rehabilitation distinguished him from the other two sentenced offenders (at [133]-[134]). The court imposed a head sentence of 30 months (after a 25% discount on a starting point of three and a half years), with a non-parole period of 15 months commencing 20 May 2023, reflecting a finding of special circumstances (at [142]-[145]). The court noted that this head sentence precluded an intensive correction order under section 68 of the Crimes (Sentencing Procedure) Act (at [142]).

Mansfield's Subjective Case

Mansfield, aged 26 at the time, presented the most extensive history of disadvantage. The court found a causal link between his background, including parental abandonment, exposure to domestic violence, parental substance abuse, sexual assault while in juvenile detention, and subsequent mental health diagnoses including PTSD, persistent depressive disorder, and ADHD, and his commission of the offence (at [185]-[186]). This causal finding, combined with the provocation finding, produced a greater reduction in moral culpability than in Caulfield's case, justifying a lesser head sentence despite Mansfield's more serious criminal history (at [198]). A head sentence of three years (after a 25% discount on a starting point of four years) was imposed, with a non-parole period of 21 months commencing 29 November 2021 and a finding of special circumstances, with the Form 1 intimidation offence taken into account (at [199]-[205]).

Parity

The court applied the parity principle throughout, ensuring no offender had a justifiable sense of grievance. The differences in sentence between Caulfield and Russell were explained by Russell's lack of criminal history, good prospects, youth, supportive environment, and the out-of-character nature of his conduct (at [143]). The lesser sentence for Mansfield compared to Caulfield reflected the stronger finding of causal connection between disadvantage and offending in Mansfield's case (at [198]).

Orders Made

  • Caulfield: Convicted of recklessly causing grievous bodily harm in company (s 35(1) Crimes Act 1900). Sentenced to imprisonment with a non-parole period of 2 years commencing 28 January 2022 and expiring 27 January 2024, with a balance of term of 1 year and 4 months expiring 27 April 2025.
  • Russell: Convicted of recklessly causing grievous bodily harm in company (s 35(1) Crimes Act 1900). Sentenced to imprisonment with a non-parole period of 15 months commencing 20 May 2023 and expiring 19 August 2024, with a balance of term of 15 months expiring 19 November 2025.
  • Mansfield: Convicted of recklessly causing grievous bodily harm in company (s 35(1) Crimes Act 1900), with the Form 1 intimidation offence taken into account. Sentenced to imprisonment with a non-parole period of 21 months commencing 29 November 2021 and expiring 28 August 2023, with a balance of term of 15 months expiring 28 November 2024.

Key Takeaways

  • The District Court confirmed that provocation, in the sense of a prior assault on a member of the offenders' group, can reduce an offender's moral culpability and lessen the weight given to personal and general deterrence, even where it neither justifies the conduct nor reduces the objective seriousness of the offence for the purposes of section 54A of the Crimes (Sentencing Procedure) Act (at [34]-[37]).

  • Where a subsequent assault by a third party occurs after co-offenders have walked away from a victim, the Crown must prove beyond reasonable doubt that injuries were wholly caused by the offenders' conduct; where that cannot be established, the court must sentence on the basis that the injuries may have been contributed to by the third party (at [41]-[42]).

  • A causal link between an offender's severely disadvantaged background, including childhood sexual abuse, exposure to domestic violence, and parental substance abuse, and the commission of a violent offence can be established on a broad view, and justifies a finding of reduced moral culpability and greater leniency even where the connection is not direct (at [185]-[186]).

  • Parity does not require identical sentences for co-offenders with materially different subjective cases; differences in criminal history, age, prospects of rehabilitation, and the strength of any causal link between background and offending are all legitimate bases for differentiation, provided no offender is left with a justifiable sense of grievance (at [143], [198]).

  • Under section 68 of the Crimes (Sentencing Procedure) Act, the length of the sentence arrived at through the standard sentencing process may itself preclude consideration of an intensive correction order, making the determination of an appropriate head sentence the critical threshold question in cases where such an order is sought (at [142]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Muldrock v R (2011) 244 CLR 120
- Smith v R [2011] NSWCCA 209
- R v Swan [2006] NSWCCA 47
- R v Craddock [2004] VSC 397
- McLaren v R [2012] NSWCCA 284.
- Lowe v R (1984) 154 CLR 606
- Director of Public Prosecutions (DPP) (Cth) v De la Rosa [2010] NSWCCA 194
- Bugmy v R [2013] HCA 37
- R v Millwood [2012] NSW CCA 2
- R v Pham & Ly (1991) 55 A Crim R 128
- R v Goundar [2001] NSWCCA 198
- Shaw v R [2008] NSWCCA 58
- Hoare v The Queen (1989) 167 CLR 348
- R v Dodd (1991) 57 A Crim R 349
- R v Whyte [2002] NSWCCA 343
- R v Henry [1999] NSWCCA 111
- De la Rosa [2010] NSWCCA 194