Citation: R v Webb [2025] NSWDC 112
Court: District Court of New South Wales
Date: 7 February 2025
Judge: Haesler SC DCJ
Background
The offender pleaded guilty in the Local Court to affray under s 93C(1) of the Crimes Act 1900 (NSW), arising from a violent incident in Wollongong on 24 April 2023. The incident began when two men, Brown and Williams, entered premises and attempted to rob or extort the occupants. After the would-be robbers fled, the offender and a co-offender, Lawrence, gave chase.
The offender caught Williams, who had slipped and fallen, and struck him multiple times with a chair leg, including at least one blow to the head. He then joined Lawrence in attacking Brown, kicking him to the head and upper torso. Lawrence, who was armed with a knife, fatally stabbed Brown. Lawrence was separately convicted of manslaughter: R v Lawrence [2024] NSWDC 485. The offender was unaware that Brown had been stabbed and played no part in causing his death.
The offender, born in 1985, had a prior criminal record and was subject to an Intensive Correction Order (ICO) at the time of the offence. That ICO was subsequently revoked for non-compliance. He had spent time in pre-sentence custody solely for this matter.
Legal Issues
- What was the objective seriousness of the affray, taking into account the conduct of both the offender and the co-offender?
- How should provocation be weighed against the nature and extent of the violence used?
- What weight should be given to the offender's deprived background, drug dependence, and the principles in Bugmy v The Queen, when assessing moral culpability?
- How should the breach of the ICO be treated as an aggravating factor?
- Was an immediate custodial sentence required, and if so, what length of sentence and non-parole period was appropriate?
Decision
Objective seriousness. Haesler SC DCJ assessed the affray as a serious example of its type. Relevant factors included the level of violence used, the existence of two victims of unlawful violence, the group nature of the attack, and the fact that a person died in the course of the affray. While the incident was spontaneous rather than premeditated (which would ordinarily attract a more serious assessment), the offender's response to the initial robbery was excessive and involved gratuitous violence. The court was careful to confine its assessment to conduct constituting the affray, not to the conduct of the co-offender that resulted in manslaughter.
Provocation. The court accepted that the offender had been the victim of a robbery and that some provocation existed under s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, it found he went well beyond what was necessary to apprehend the robbers, and that the violence inflicted was unnecessary and gratuitous.
Subjective matters and moral culpability. The offender's background was extensively canvassed through a Sentence Assessment Report and a psychological report from Dr Sidhu. His upbringing was characterised by parental criminality, maternal drug addiction, neglect, removal into care, disrupted schooling, and significant loss. The court applied the principles from Bugmy v The Queen (2013) 249 CLR 571, acknowledging that these disadvantages reduced, but did not eliminate, his moral culpability. The court also noted his high assessed risk of recidivism, his tendency to minimise his offending, and his prior failure to comply with the ICO. The breach of the ICO was treated as one of many factors to be synthesised, but not a significantly aggravating one, given that the ICO had already been revoked and the balance served in custody.
Sentence. The court declined to order immediate release. A custodial sentence was required, with a finding of special circumstances made so that the non-parole period could be reduced and the period of supervised parole extended, providing maximum opportunity for rehabilitation. The 25% discount for the early guilty plea was applied, with the sentence rounded in the offender's favour.
Orders Made
- Total sentence of 1 year and 10 months imprisonment, commencing 14 April 2024.
- Non-parole period of 1 year and 2 months, commencing 14 April 2024; the offender to be released to supervised parole on 13 June 2025.
- Balance of term of 8 months commencing 14 June 2025, expiring 13 February 2026.
- Parole to be supervised.
- A copy of Dr Sidhu's psychological report to be sent with the warrant to Community Corrections.
Key Takeaways
- In sentencing for affray, the District Court confirmed that the offender's conduct must be assessed in the context of co-offender conduct insofar as it contributed to the affray, but the sentence cannot extend to the separate criminal acts of the co-offender, even where those acts resulted in death during the same incident.
- A finding of special circumstances, reducing the minimum term and extending the parole period, remains an available tool where long-term supervision is assessed as the most effective mechanism for reducing recidivism.
- Under Bugmy v The Queen, a severely deprived and chaotic childhood can reduce an offender's moral culpability, but does not displace the need for a custodial sentence where the offence is objectively serious.
- Provocation arising from being a robbery victim may operate as a mitigating factor under s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, but carries limited weight where the responsive violence was disproportionate and gratuitous.
- Where an ICO has already been revoked and the balance served in custody, a court may treat the breach as a relatively minor aggravating factor in the synthesis of sentence, rather than as a basis for significant uplift.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 93C(1) (affray)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(c) (provocation as mitigating factor), s 24 (pre-sentence custody)
Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- R v Eleter [2003] NSWDC 130
- R v Lawrence [2024] NSWDC 485
- Usaia v R [2023] NSWCCA 57