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District Court 8 August 2024

R v Buddle

[2024] NSWDC 334

Assault & violence
CRIME SENTENCING AFFRAY FORM 1 OFFENCES OFFENDER PARITY

Citation: R v Buddle [2024] NSWDC 334
Court: District Court of New South Wales
Date: 8 August 2024
Judge: Fitzsimmons SC DCJ

Background

On New Year's Eve 2022, a group confrontation unfolded on a residential street in Woonona, in the Illawarra region south of Sydney. The offender had spent the day at a nearby property and became involved in a joint criminal enterprise with co-offenders Krajanovic and Bozinov. What began as a neighbourhood dispute escalated into a violent group assault involving knives and pieces of wood, with multiple victims injured.

The offender's most serious individual act involved approaching one of the victims, Kevin Gamble, while another participant in the group swung a piece of wood directly at Gamble's head. Gamble raised his arm to protect himself and sustained a displaced proximal ulna fracture. He subsequently required surgery involving wound debridement and open reduction and internal fixation of the fracture with a plate and ten screws. Other victims suffered lacerations, bruising, and swelling from separate acts carried out by other participants in the joint enterprise.

The offender pleaded guilty on the first day of trial, 18 March 2024, to affray and causing grievous bodily harm with intent. Three additional counts of assault occasioning actual bodily harm in company were dealt with on a Form 1 (meaning they were taken into account in sentencing without separate convictions being recorded). At the time of the offending, the offender was subject to an intensive correction order for a prior offence.

  • What weight should be given to a late guilty plea entered on the first day of trial?
  • How should parity with co-offenders be applied in determining an appropriate sentence?
  • What role did the offender's mental health, developmental trauma, and substance use disorder play in mitigation?
  • How should the aggregate sentence be structured to reflect totality without producing a crushing or disproportionate outcome?
  • How should the resentencing for the revoked intensive correction order interact with the commencement date of the new sentence?

Decision

Guilty plea discount: The offender's plea came on the first day of trial, which is a late concession. Fitzsimmons SC DCJ acknowledged the utilitarian value of the plea (avoiding a trial and sparing victims the need to give evidence) but applied a reduced discount commensurate with the lateness of the concession, consistent with the principles in cases such as Green v R; Quinn v R (2011) 244 CLR 462.

Parity with co-offenders: The court considered the sentences imposed on Krajanovic and Bozinov and examined the offender's relative culpability within the joint criminal enterprise. Krajanovic was the most culpable, having been armed with a knife and directly stabbing victims. The offender's role, while serious, was assessed as less culpable than Krajanovic's. The court was required to avoid any justifiable sense of grievance the offender might have if the sentence was disproportionately more severe than those of co-offenders with greater culpability.

Subjective circumstances: Psychiatric evidence from Dr Gerald Chew established that the offender suffered persistent depressive disorder against a background of significant developmental trauma and substance use disorder. The offender's difficult upbringing, the death of his brother from an overdose, his relapse into alcohol and methamphetamine use, and the impact of incarceration on his mental health were all taken into account. The court accepted that these factors diminished, to some extent, his moral culpability. Dr Chew's opinion that custody would likely be more detrimental to this offender's mental health than to a person without his conditions was also accepted, warranting an additional, though modest, reduction in sentence.

Aggregate sentence and totality: The court imposed an aggregate sentence, noting that while some accumulation of terms was warranted given the multiple victims, the offences occurred over a short period and shared an underlying factual basis. The court applied the principle that an overly long total sentence risks a "crushing" effect that destroys any realistic prospect of rehabilitation. The revoked intensive correction order sentence was taken to have commenced at arrest, and the new aggregate sentence was ordered to commence two months after that date to avoid double punishment, consistent with Edquist-Wheeler v R [2024] NSWCCA 49.

Orders Made

  • The offender is convicted of all offences.
  • A total aggregate sentence of imprisonment of 6 years 6 months is imposed, expiring on 24 September 2029.
  • A non-parole period of 3 years 11 months is imposed, expiring on 24 February 2027.
  • The earliest date the offender is eligible to be released on parole is 24 February 2027.

Key Takeaways

  • The District Court confirmed that a guilty plea entered on the first day of trial attracts a materially reduced utilitarian discount compared with an early plea, though it retains some value where it spares victims from testifying.
  • Parity principles require a sentencing court to assess each co-offender's relative culpability individually; a less culpable participant in a joint criminal enterprise is entitled to a sentence that reflects that difference.
  • A diagnosis of persistent depressive disorder, developmental trauma, and substance use disorder can reduce an offender's moral culpability and also support a finding that custody will be more burdensome for that individual, both of which are relevant to the sentencing exercise.
  • Under the totality principle, where offences arise from a single episode involving multiple victims, some accumulation of sentences is appropriate, but the aggregate must not produce an outcome so severe as to be crushing or to destroy all realistic hope of rehabilitation.
  • Where a sentence for a revoked intensive correction order runs immediately from the date of arrest for the triggering offences, the new head sentence should be structured to avoid double punishment, with the commencement date adjusted accordingly.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(b), 59(1), 93C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D(2)(c), 37

Cases:
- Alkanaan v R [2017] NSWCCA 56
- Baden v R [2020] NSWCCA 23
- DC v R [2023] NSWCCA 82
- DH v R [2022] NSWCCA 200
- Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Edquist-Wheeler v R [2024] NSWCCA 49
- Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1
- Giles-Adam v R; Preca v R [2023] NSWCCA 122
- Green v R; Quinn v R (2011) 244 CLR 462
- Hall v R [2021] NSWCCA 220
- KM v R [2023] NSWCCA 10
- LN v R [2020] NSWCCA 131
- Moiler v R [2021] NSWCCA 73
- Muldrock v R (2011) 244 CLR 120
- Pender v R [2023] NSWCCA 291
- R v Eaton [2023] NSWCCA 125
- R v Goundar [2001] NSWCCA 198
- R v Huynh [2000] NSWCCA 18
- R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381