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District Court 23 February 2024

R v Young

[2024] NSWDC 24

Assault & violence
CRIME SENTENCING OFFENDER JOINT CRIMINAL ENTERPRISE VICTIM IMPACT STATEMENT SUBSTANTIAL EMOTIONAL HARM

Citation: R v Young [2024] NSWDC 24
Court: District Court of New South Wales
Date: 23 February 2024
Judge: Fitzsimmons SC DCJ

Background

The offender pleaded guilty to a single charge of reckless grievous bodily harm in company, contrary to s 35(1) of the Crimes Act 1900. The offence carries a maximum penalty of 14 years' imprisonment and a standard non-parole period of five years. The matter was committed for sentence from Nowra Local Court in October 2023.

The offence occurred on the evening of 11 September 2022 in Ulladulla. The offender and his partner were engaged in a street argument when the victim, a passing pedestrian, approached out of concern for the woman. What followed was a violent joint assault. The co-offender struck the victim to the head with a sharp object multiple times, and the offender then punched the victim in the face, causing him to fall. Both continued to assault the victim, with evidence suggesting his head was stomped and kicked. The victim fell in and out of consciousness and suffered catastrophic injuries as a result.

The offence was committed while the offender was on parole, and he was subsequently arrested on 28 October 2022. He had been in custody solely referrable to this offence from that date.

  • What was the appropriate starting sentence for this offence, taking into account the agreed facts and the standard non-parole period as a sentencing guidepost?
  • What weight should be given to the offender's personal background and disadvantage under the principles established in Bugmy v The Queen?
  • How should the principles in Director of Public Prosecutions (Cth) v De La Rosa apply to fixing the non-parole period relative to the head sentence?
  • Were there aggravating factors present, including commission of the offence while on conditional liberty and the severity of harm caused to the victim?
  • Was a finding of special circumstances warranted to adjust the statutory ratio between the head sentence and non-parole period?

Decision

The court assessed the gravity of the offending as serious. The victim, an innocent bystander acting out of concern for another, suffered permanent and life-altering injuries including multiple facial and orbital fractures, seizures requiring an induced coma, permanent vision loss, post-traumatic stress disorder, ongoing neurological complications, and severely diminished independence. The medical evidence and victim impact statement painted a stark picture of the lasting consequences.

In considering aggravating factors, the court noted the offence was committed in company and that the victim was in a particularly vulnerable position during the assault. The commission of the offence while on parole was noted as a serious matter, though the court acknowledged it occurred near the expiry of the parole period. The court applied Bugmy principles in recognising the offender's deprived background and the relevance of that background to his moral culpability, while affirming that this did not eliminate the need for appropriate punishment.

The offender received a 25% discount on sentence for his early guilty plea, reducing the sentence from a starting point of three years and four months to two years and six months. The court found the prospects of rehabilitation guarded, given the escalation of violent offending, the commission of the offence while on conditional liberty, and what was described as a lack of significant remorse. However, the court accepted that the offender had developed some insight into how his personal background contributed to the offending, and that he had the support of a new partner on release.

The court made a finding of special circumstances under the De La Rosa principles, warranting a departure from the standard statutory ratio of the non-parole period to head sentence. This was influenced by the view that a custodial sentence would weigh more heavily on the offender and that an extended period on parole would better support rehabilitation. The sentence was backdated to commence on 28 October 2022, the date of arrest.

Orders Made

  • The offender was convicted of reckless grievous bodily harm in company.
  • A sentence of imprisonment of 2 years 6 months was imposed, commencing 28 October 2022 and expiring 27 April 2025.
  • A non-parole period of 1 year 6 months was imposed, commencing 28 October 2022 and expiring 27 April 2024.
  • The offender's earliest eligible date for release on parole was 27 April 2024.

Key Takeaways

  • The District Court confirmed that the standard non-parole period of five years for s 35(1) offences serves as a sentencing guidepost or reference point rather than a fixed benchmark, consistent with Muldrock v R.
  • Under Bugmy principles, evidence of an offender's deprived and disadvantaged background remains relevant to moral culpability at sentencing, even in cases involving serious violence, though it does not displace the need for deterrence and punishment.
  • Commission of an offence while on parole is a recognised aggravating circumstance, though the court here treated it with some moderation given the proximity to the parole expiry date.
  • A finding of special circumstances can justify extending the parole period beyond the standard statutory ratio where an offender's particular circumstances suggest a longer supervised period on release would better support rehabilitation.
  • Severe and permanent physical and psychiatric harm to a victim, including vision loss, ongoing seizures, PTSD, and loss of independence, featured prominently in the court's assessment of the seriousness of the offending, informed by detailed expert medical evidence and the victim impact statement.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 10A, 21A(2)(g)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Muldrock v R (2011) 244 CLR 120
- Alkanaan v R [2017] NSWCCA 56
- DC v R [2023] NSWCCA 82
- Dungay v R [2020] NSWCCA 209
- Giles-Adams v R; Preca v R [2023] NSWCCA 122
- Huynh v R [2015] NSWCCA 179
- Josefski v R [2010] NSWCCA 41
- KR v R [2012] NSWCCA 32
- Luque v R [2017] NSWCCA 226
- R v Wickham [2004] NSWCCA 193
- Ryan v Regina [2017] NSWCCA 209