King v The Queen

[2020] NSWDC 565

District Court

New South Wales

Medium Neutral Citation:

King v R [2020] NSWDC 565

Hearing dates:

17 July 2020

Decision date:

17 July 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

1. The sentence appeal is upheld in part.

2. I confirm the conviction but vary the sentence imposed below.

Catchwords:

APPEALS - District Court - Appeal against sentence in Local Court

CRIME - Affray - Assault occasioning actual bodily harm company of others

CRIME — Violent offences — Assault occasioning actual bodily harm - street violence – retributive sentence required - moderation in length of Non-parole period required to reflect efforts toward rehabilitation

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Crimes (Administration of Sentences) Act 1999.

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Herring (1956) 73 WN (NSW) 203

RvLoveridge [2014] NSWCCA 120

Category:

Principal judgment

Parties:

Bradley King (Appellant)
Director of Public Prosecutions (Respondent)

Representation:

Solicitors:
Mr A Williamson, Williamson Isabella Lawyers (for the appellant)
Ms K McCosker, Director of Public Prosecutions

File Number(s):

2019/00394235

Judgment – ex tempore revised

1. On Sunday 9 December 2019, a man and two women, were waiting on Fairy Meadow Railway Station. They saw a young person behaving badly. They asked him to pick up his rubbish and put it in the bin.  The young person threatened the man, who was ultimately the victim in this matter.  Following his threats, the young person left and met up with others. 

2. What occurred thereafter was shown in CCTV: exhibit D. The victim in the matter is standing on the railway platform; the train is pulling into the station; he is set upon by a number of young men, who run towards him and start punching him in the head. Initially not all were involved; the man in the yellow shirt is seen putting down a drink, before he joins the affray.

3. The facts say, and the CCTV indicates, that the victim was fortunate not to have rolled into the train that was entering the station.  He is then, in the station waiting area, assaulted by a number of men, including the man in the yellow shirt, who punches him a number of times to the head.  Although the assault lasts less than a minute, quite a number of blows are struck by each of the assailants.

4. The victim was not really in a position to do anything other than try and protect himself from further assaults, given the rapidity with which he is hit, and the number of assailants coming at him from different directions.  He is effectively finished off by another man, who I am told is Dylan Pike. Pike holds the victim's head, pulls his head down and moves his knee up to connect with the victim’s head.  It appears this particular act, for which all must assume responsibility, led to the perforation of the victim’s left eardrum. The victim also had cuts to his nose and facial swelling. He was obviously distressed, as were those with him.