R v Buddle

[2024] NSWDC 334

District Court

New South Wales

Medium Neutral Citation:

R v Buddle [2024] NSWDC 334

Hearing dates:

05 April 2024, 02 August 2024

Date of orders:

08 August 2024

Decision date:

08 August 2024

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

(1)   The offender is convicted of the offences.

(2)   I impose a total aggregate sentence of imprisonment of 6 years 6 months to expire on 24 September 2029.

(3)   I impose a non-parole period of 3 years 11 months to expire on 24 February 2027.

(4)   The earliest date the offender is eligible to be released on parole is 24 February 2027.

Catchwords:

CRIME – sentencing – affray – cause grievous bodily harm to person with intent – assault occasioning actual bodily harm in company – form 1 offences - co-offender - parity - guilty plea on first day of trial – aggregate sentence

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999, ss 25D(2)(c), 37

Crimes Act 1900, ss 33(1)(b), 59(1), 93C(1)

Cases Cited:

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

R v Sharrouf [2023] NSWCCA 13

Regina v JW [2010] NSWCCA 10

Sheen v R [2014] NSWCCA 42

TM v R [2023] NSWCCA 185

Category:

Sentence

Parties:

Rex
Brett Buddle (Offender)

Representation:

Counsel:
Mr S. Schaudin (Offender)

Solicitors:
Director of Public Prosecutions (DPP) (Crown)
Velasquez Legal (Offender)

File Number(s):

2023/0037810

Publication restriction:

NIL

Judgment

1. The offender pleaded guilty on the first day of trial on 18 March 2024 to the following offences: –

1. Count 1 – Affray, contrary to section 93C(1) of the Crimes Act 1900 carrying a maximum penalty of 10 years imprisonment.

2. Count 4 - Cause grievous bodily harm to person with intent, contrary to s 33(1)(b) of the Crimes Act 1900 carrying a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years.

2. The following additional offences are to be dealt with on a Form 1: -

1. Counts 1, 2, and 3 - Assault occasioning actual bodily harm in company of others contrary to section 59(2) of the Crimes Act 1900 carrying a maximum penalty of 7 years imprisonment.

3. The maximum penalty for each of these offences are an indication of their seriousness and acts as a sentencing guidepost or reference point. The standard non parole period for count 4 is a further sentencing guideline and also reflects the seriousness of the offence.

4. Admitted on behalf of the Crown were the following: -

1. Exhibit C1 - Indictment (v.34.2)

2. Exhibit C2 - Indictment (v.32.3)

3. Exhibit C3 - Form 1

4. Exhibit C4 - Custodial History

5. Exhibit C5 - Criminal History

5. Admitted on behalf of the Offender were the following:

1. Exhibit O1 - Psychiatric report of Dr Chew dated 27 July 2024

2. Exhibit O2 - Character reference of Rose Buddle dated 10 June 2024

3. Exhibit O3 - Character reference of Jay Marcysiak dated 12 June 2024

4. Exhibit O4 - Character reference of Sharon Bealey, undated

Agreed Facts

6. The offences occurred in Adams Parade, Woonona on the evening of New Year's Eve 2022. On the morning of that day the offender arrived at a friend's home on Adams Parade occupied by Gregory Downie and Eitaro Manurere. He remained at the premises throughout the day and evening. Residing next door were Sean Petersen and Stacey Evangelou. The victim of the offence of cause grievous bodily harm with intent, Kevin Gamble, was at the residence of Petersen and Angelou on the same evening. Later that evening the co-offender Krajanovic and Bozinov arrived at the premises of Manurere and Downie in the company of others. The victims to the affray (Jay Haig and Jenny Lee) were also visiting the home of Petersen and Evangelou.

7. There had been various exchanges between the parties on Adams Parade in the hours before the incidences giving rise to the relevant offences. Later that evening a “scuffle” occurred between Bozinov and Petersen which was followed shortly by both Krajanovic and Bozinov assaulting Petersen. Krajanovic, armed with a knife, stood over and stabbed Petersen's head whilst the latter was wrestling with Bozinov. Krajanovic then stabbed Petersen in the abdomen. During this, whilst Gamble and Lee attempted to break up the melee, Krajanovic swung a knife at Gamble resulting in a deep laceration to Gamble's arm. Bozinov, whilst wrestling with Petersen, managed to “flip" Petersen over so Bozinov was on top of Petersen. Having heard the fracas, Evangelou and Haig walked onto the street and was somewhat successful in breaking up the melee.

8. The group then moved towards the property from which they had come when one participant in the joint criminal enterprise in which the offender was involved approached Haig and swung a piece of wood at him, connecting with his left shoulder area causing a welt and bruising (Count 2). When attempting to intervene, one of the same participants in the joint criminal enterprise swung a piece of wood at Brandt which struck the left side of the neck causing swelling (Count 1). Thereafter again one of the participants in the joint criminal enterprise opened the front gate of the premises and swung a piece of wood directly at Lee's arm, contacting her right shoulder, causing a bruise (Count 3).

9. The offender was standing nearby at the time. The offender, aware that one of the participants in the joint criminal enterprise was armed with a piece of wood, approached Gamble and Lee. One of the participants swung the piece of wood directly at Gamble's head, who raised his left arm to protect himself. The blow connected with Gamble's left arm causing an un-displaced proximal ulna fracture (Count 4). The three offenders left the scene at different times.

10. On 4 January, police attended the offender’s premises at which time the offender was cautioned, arrested and conveyed to Wollongong police station. He declined to participate in an electronically recorded interview with a suspected person. However, in body worn video, the offender accepted that he was present at the scene at the time of the offences. However, he claimed to have been inside when he heard screaming and departed immediately because of mental health issues.

11. Gamble was treated at Wollongong Hospital with an examination confirming he had suffered a deep left arm laceration and left arm ulna comminuted fracture. Gamble subsequent underwent surgery involving wound debridement and open reduction and internal fixation of the fracture with a plate and 10 screws.

The offender’s criminal record

12. The offender was aged 31 at the time of the offending and is now aged 32. His record is relatively limited. The offender was convicted of stalk/intimidate intend to cause physical harm and destroy or damage property in 2011. His next offence was not committed until May 2020 of take person in company with intent to commit serious indictable offence for which he was sentenced to 1 year 1 month to be served by way of an intensive correction order. The offender was the subject of this order at the time of the offences for which is to be sentenced. The balance of the offender's criminal record relates to driving offences from 2009 and more recently in 2022.

Subjective material

Report of Dr Gerald Chew

13. Dr Chew assessed the offender via audiovisual link on 24 July 2024. At the time of the assessment the psychiatrist had available the indictment, statement of agreed facts, the criminal record and various testimonials which are before the Court on the sentence. The offender immediately expressed remorse, having pleaded guilty. He expressed some disgust with respect to his offending behaviour. The offender had apparently been drinking alcohol since earlier that morning as well as having consumed prescription medication. He was unable to recall many of the details of what had occurred. The offender told the psychiatrist that he had avoided illicit drugs whilst incarcerated and had been performing work. He had found custody difficult and indeed had attempted self-harming. He had initially had difficulties accessing his medication and was concerned about a potential seizure.

14. The offender had apparently been diagnosed with anxiety and depression in 2020 and had been trialled on various prescription medication. He described a long history of periods of depression and anxiety with panic attacks. He turned to alcohol and drugs to try and manage his condition. There was also a history of epilepsy which was supervised and prescribed medication.

15. The offender described a significant history of substance use commencing with cannabis and ecstasy in his mid-teenage years. In his later teenage years, he also abused alcohol and used speed. After the death of his brother from an overdose in 2021 he attended rehabilitation and was clean. However, he relapsed into further use of illicit substances including alcohol and methamphetamines.

16. By way of background, the offender’s mother had abused heroin and alcohol during his pregnancy. His parents separated when he was two and was generally raised by his paternal grandmother. Tragically, all his brothers have substance abuse issues including alcohol, cannabis and methamphetamine. He left school at year 8 with learning difficulties. He referred to a toxic relationship with his mother during his contact with her in his teenage years. He had undertaken various work and had spent some time working with the Aboriginal Lands Council.

17. The offender’s mental state examination was generally unremarkable apart from reporting stress, depression and anxiousness. Dr Chew diagnosed the offender as having suffered persistent depressive disorder in the context of significant developmental trauma and substance use disorder. Dr Chew was satisfied that the offender was suffering from these conditions at the time of his offending. He had relapsed into drug and alcohol use in part to manage his negative emotions which in turn affected his behaviour and judgement. Dr Chew considered that access to treatment for his condition was more difficult in custody and accordingly it was likely that incarceration would be somewhat detrimental to his mental health. It will result in harsher conditions whilst in custody. Dr Chew also acknowledged the difficulties arising from the COVID-19 restrictions in the prison system. Various treatment was recommended.

Rose Buddle

18. Rose Buddle was the offender’s paternal grandmother and has been his carer since an early age. She noted that the offender was born with withdrawal symptoms having been exposed to heroin in utero. She confirmed the excessive use of alcohol and drugs by the offender’s mother during his early years. She also referred to the offender having been diagnosed with various conditions including epilepsy, bipolar and split personality disorder. His mental health had declined during his period of incarceration. Ms Buddle noted she had a close and loving relationship with the offender. She attested to his caring and compassionate character demonstrated throughout his life. She also referred to his volunteer work which involved considerable personal hardship. Ms Buddle also noted the offender’s poor relationship with his father and the extent to which he would look out for his brother who suffered from schizophrenia. Ms Buddle attested to the offender's commitment to his daughter who was born in 2010. She confirmed the offender’s expressions of remorse and regret. She considered that the offender had positive prospects of rehabilitation.

Jay Marcysiak

19. Jay Marcysiak was a support worker for the offender’s brother and in this capacity had known the offender for a period of eight years. Reference was made to the offender’s good character and his commitment to his family. The offender had also expressed considerable remorse and suffered depression as a consequence. It was considered that the offender was unlikely to reoffend.

Sharon Bealey

20. Ms Bealey is the offender’s aunt who had known the offender since he was young. She also attested to his good character including his caring, polite, and honest demeanour. She had never known the offender to be violent, abusive or disrespectful towards others.

Crown submissions

21. The Crown acknowledged that the offender was entitled to a 5% discount given the timing of his guilty plea. Reference was made to the maximum penalty provided for each of the offences. It was noted that in the context of a joint criminal enterprise that each of the participants were equally liable for the full range of acts committed in the course of carrying out the enterprise.

22. The Crown noted the relevant considerations in determining the objective seriousness of the two offences for which the offender is to be sentenced. The Crown contended that with respect to Count 4, whilst it was unable prove that it was the offender that actually struck the victim, his participation in the joint criminal enterprise made him equally responsible. However, the Crown acknowledged in oral submissions the Court was entitled to the consider the respective roles of the participants in the joint criminal enterprise.

23. The Crown noted the three offences to be dealt with on the Form 1. An aggravating factor was the offences were committed whilst the offender was on conditional liberty. The Crown in oral submissions withdrew its written submission that a further aggravating factor was that the offence occurred in the presence of a child. The Crown referred to principles of totality and the relevant subjective mitigating factors. The Crown contended ultimately that when considering the purposes of sentencing the Court would find no penalty other than imprisonment was appropriate.

Offender’s submissions

24. The offender addressed the issue of objective seriousness of each of the offences for which the offender is to be sentenced and the relevant principles applicable to assessing this issue. Submissions were also made as to the culpability of the offender in the context of the joint criminal enterprise, noting the relevant authorities that the Court was entitled to consider the particular conduct of the participants. It was contended that ultimately the offender assisted or encouraged the principal by standing in the vicinity and watching the acts occur.

25. The offender agreed that that he was entitled to 5% discount given the timing of the plea. Detailed submissions were made as to the offender’s subjective circumstances and the relevant principles applicable to offenders suffering a mental disability or disorder at the time of the commission of the offences.

26. It was contended that the offender assisted authorities by admitting he was at the scene of the crime. I do not accept that this is relevant assistance for the purpose of section 23 given the offender otherwise denied any involvement in the offending.

27. The offender referred to the relevant principles in dealing with the offences on the Form 1. Reference was also made to the principles of totality when considering the aggregate sentence. It was contended that a finding of special circumstances would be made and that the Court would also consider the difficulties during the COVID-19 pandemic referred to in the report of Dr Chew.

Consideration

28. The offender is to be sentenced with respect to offences of affray (Count 1) and cause grievous bodily harm with intent (Count 4). The offender asks the Court take into account in passing sentence an additional three offences of assault occasioning actual bodily harm in company with others.

29. Several recent decisions of the Court of Criminal Appeal have observed that whilst there is a need for the sentencing judge to assess the objective seriousness of the offence for which the offender is to be sentenced, there is no requirement that it be assessed by reference to some hypothetical mid-point: DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; Pender v R [2023] NSWCCA 291.

30. With respect to Count 4, the offence involved a considerable degree of violence consisting of an unprovoked attack on the victim by swinging a piece of wood directly at the victim's head. The injury was sustained to the victim's left arm when he raised that arm to prevent the wood connecting with his head. Whilst the injury sustained by the victim was significant, as documented in the report of Dr Bateman, there was the potential for more serious injury given the weapon used was directed at the victim's head.

31. The offender has pleaded guilty to the offence on the basis he was part of a joint criminal enterprise. The agreed facts record as follows: –

“34. Buddle, was aware that one of the participants in the joint criminal enterprise (‘JCE') was armed with a piece of wood (possibly a baseball bat) approached Gamble and Lee.

35. One of the JCE participants swung the piece of wood directly at Gamble's head, who raised his left arm to protect himself, and connected with Gamble's left arm, breaking it (undisplaced proximal ulna fracture).''

32. I accept the offender’s submission that, in appropriate circumstances, it is relevant to consider the particular conduct of each of the participants in a joint criminal enterprise, particularly if it is apparent that one particular participant has taken a more active role in the joint criminal enterprise: Regina v JW [2010] NSWCCA 10; R v Goundar [2001] NSWCCA 198; Sheen v R [2014] NSWCCA 42.

33. In oral submissions the Crown was not prepared to concede that the offender was not the person carrying the piece of wood, despite the agreed facts and earlier written submissions conceding this to be the case. However, a plain reading of the agreed facts is consistent with a finding, on the balance of probabilities, that whilst the offender was aware that another participant in the joint criminal enterprise was carrying the piece of wood, he was not the actual carrier. Whilst this is a factor in assessing the objective seriousness, it does not detract from the fact that the offender was a participant in a joint criminal enterprise involving the unprovoked violent attack on an innocent victim who was exposed to serious injury.

34. The offence (cause grievous bodily harm) contemplates a range of possible injuries. Whilst the injury suffered by the victim was serious, self-evidently it was not the most serious contemplated by the offence. I accept that the offending was spontaneous and there was no planning or pre-meditation. In effect the offender was caught up in a melee with his co-offenders.

35. I find the offence, whilst a significant example of the offending contemplated by the section, is far from the most serious.

36. With respect to Count 1 (affray), the offence contemplates a range of offending from “pitched street battles of rival gangs to the more spontaneous responses to unforeseen events”: R v Huynh [2000] NSWCCA 18.

37. The agreed facts fail to identify with any precision the relevant conduct constituting the offence. It is important that the Court, in assessing the objective seriousness of this offence, does not consider the separate offences of assault occasioning actual bodily harm in company which the offender asked the Court to take into account in passing sentence.

38. The offence of affray involves the use or threat of unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear his or her personal safety. It is also important that the Court not take into account the separate offence of cause grievous bodily harm with intent to which the offender has separately pleaded guilty. Apart from this conduct, the offender was engaged in a significant melee on a public street in a residential area involving considerable violence by multiple persons in the presence of or directed at multiple victims. I am satisfied that this is a significant example of the conduct contemplated by this offence.

32. An aggravating factor on sentence is that the offender was on conditional liberty at the time of commission of the offences in that the offender was the subject of a community corrections order (not called up) and an intensive correction order.

33. It is agreed that the offender is entitled to a discount of 5% on a sentence that would otherwise be imposed given the timing of the plea of guilty pursuant to section 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (‘CSPA’).

34. However, I accept that the plea is also a further factor in mitigation. As Yehia J (with whom Chen and Wright JJ agreed) observed in Giles-Adam v R; Preca v R [2023] NSWCCA 122, “the utilitarian value of a plea of guilty and the willingness of an offender to facilitate the course of justice are conceptually different." As her Honour observed the former is an objective factor requiring quantification whilst the latter is a subjective factor which has the potential to mitigate the sentence “as part of the process of instinctive synthesis".

35. Bell P (as his Honour then was) in Baden v R [2020] NSWCCA 23 observed:

“In Cameron, Gaudron, Gummow and Callinan JJ differentiated in terms between the utilitarian value of an early plea and an accused’s “willingness to facilitate the course of justice” which might be manifested in an early plea (see, for example, at [19]), even though the outcome or result of such a willingness may (and perhaps typically would) be a useful saving in time and expense, with obvious ramifications for the efficient deployment of scarce and valuable public resources.”

43. I am not satisfied that the plea was merely an acceptance of the inevitable in the face of an overwhelming Crown case, but rather a willingness to facilitate the course of justice which included the fact that the victims did not have to suffer the ordeal of giving evidence in Court. I further accept that the plea of guilty is an expression of remorse, consistent with the statements of the offender to Dr Chew, psychiatrist and to his grandmother, Rose Buddle.

44. It is apparent from the history provided to Dr Chew that the offender experienced a difficult upbringing from his infancy. I accept that the offender was exposed to heroin and alcohol in-utero given the abuse of these substances by his mother during her pregnancy. His parents separated before his first birthday, and he was ultimately raised by his paternal grandmother. However, I accept that there was an ongoing toxic relationship with the offender’s mother and indeed, in his early teens, he was exposed to the further use of alcohol and cannabis by reason of his mother’s behaviour. It is unsurprising in the circumstances that the offender was smoking cigarettes and using illicit substances during his teenage years.

45. I accept that the offender has been a long-term sufferer of persistent depressive disorder in the context of significant developmental trauma. I further accept, given the offenders early use of illicit substances. and the history provided to Dr Chew, that the offender is also a long-term sufferer of a substance use disorder. Further, I accept the opinion of Dr Chew that at the time of the offending the offender was suffering from these conditions. This was in the context of the offender relapsing into drug and alcohol use in part to manage negative emotions which thereafter impacted his behaviour and judgement.

46. As to the effect of a mental condition reducing an offender’s moral culpability, Yehia J (with whom Rothman and Wilson JJ agreed) in DC v R [2023] NSWCCA 82 observed:

“[74] A reduction in moral culpability results where an offender’s mental health (or impaired intellectual functioning) has contributed to the commission of the offence. The applicant does not need to demonstrate that his actions were beyond his control, or that he had no understanding of what he was doing. Rather, the question is whether the applicant has established, on the balance of probabilities, that his actions are mitigated on the basis that the complex PTSD and/or intellectual impairment played a role of some significance in his offending.

[75] The sentencing task should not be approached in “an unduly technical or restrictive way”: see Luque v R [2017] NSWCCA 226 at [114]. In determining whether a causal link or nexus exists, a sentencing Judge should not approach the task as though deciding the issue of causation in a civil case. Where the mental illness or intellectual impairment explains or sheds light on the offending conduct in some material way, such a finding may operate to reduce moral culpability and the weight afforded punishment and deterrence.

[76] While a sentencing Judge should not become preoccupied with the issue of “causation” as a technical matter, the mental health issue or intellectual impairment should be capable of demonstrating a link, direct or indirect, between the offending and the mental health issues in question: see Ryan v Regina [2017] NSWCCA 209 at [15] per Hamill J (Leeming JA and Button J agreeing).” (Emphasis added).

47. Whilst authorities such as Muldrock v R (2011) 244 CLR 120 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 have held that deterrence, retribution, and denunciation carry less weight where an offender was suffering from a mental condition at the time of commission of the offences, they are not authorities for the proposition that such purposes of sentencing have no relevance. Muldrock referred to the fact that in “most cases" mental impairment or disability will substantially lessen the offender’s moral culpability for the offence. In Alkanaan v R [2017] NSWCCA 56 Harrison J (with whom Payne JA and Schmidt J agreed) observed at [108]: –

“The mere fact of mental illness is not of itself a necessary or sufficient indicator for a more lenient sentence. The principles described by McClellan CJ in De La Rosa are no more than indications of what experience has shown commonly arise in such cases. As Simpson J has said, however, there is no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for."

48. Whilst I have accepted that the offender was suffering from various mental conditions at the time of the offending, the evidence is insufficient to find a direct link between the offending and the mental health issues in question. However, I accept that there is a connection between the offender’s difficult upbringing, his early exposure to illicit substances, the developmental trauma and the substance use disorder. To this extent I am satisfied that there is an indirect link between the offender’s mental condition and his offending to the extent that his underlying drug disorder was a contributor to the offending in the context of a relapse into drug use: Moiler v R [2021] NSWCCA 73.

49. Apart from a range of driving offences, the offender’s criminal record is relatively limited. In 2020 the offender committed the offence of take person in company with intent to commit serious indictable offence for which he was sentenced to a relatively short period of imprisonment to be served by way of an intensive correction order. It is apparent, in the circumstances, that the offending for which the offender is to be sentenced was somewhat isolated and in the context of a relapse in drug use.

50. However, it is also apparent on the evidence that the offender has considerable support from his grandmother. He has acknowledged the seriousness of the offending and has expressed considerable remorse. The report of Dr Chew is consistent with an acknowledgement by the offender of the difficulties with his background and his ongoing battle with drug use. I am satisfied that, with the support of his grandmother and other persons, and with an appropriate and suitable treatment plan, the offender has reasonable prospects of rehabilitation.

51. Further, and in this context, the offender should be afforded an opportunity for additional time in the community to obtain treatment to address these issues which would not otherwise be available in a custodial setting. In the circumstances, it is appropriate that a finding of special circumstances should be made such that there should be an adjustment of the statutory ratio of the non-parole period. I find that indeed this is a suitable case for leniency in considering the non-parole period: TM v R [2023] NSWCCA 185 at [103] (Yehia J with whom Payne and Stern JJA agreed).

52. In determining the appropriate sentence, I have also taken into account the hardships suffered during the COVID 19 pandemic and difficulties that have been and will be experienced by the offender by reason of his mental health whilst incarcerated.

53. That said, in considering the purpose of sentencing provided in section 3A of the CSPA, it is still necessary that the offender is adequately punished for the offences for which he is to be sentenced. Despite the mental impairments which I found subsisted at the time of the offending, specific and general deterrence remain relevant in determining the appropriate sentence. Recognition must also be given to the harm suffered by the victims of his offending.

54. With respect to the Form 1 offences, as Beech-Jones CJ at CL (as his Honour then was) observed in Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 at [23]:

“First, the Form 1 offences can be taken into account on sentencing as demonstrating an “additional need for personal deterrence and retribution” in respect of the substantive offences on the indictment (citations omitted). To this extent, the attachment of a Form 1 offence to a substantive offence may warrant the imposition of a greater sentence for the latter (Attorney General’s Application at [18]).”

55. Whilst the inclusion of offences on a Form 1 do not of themselves increase the assessment of objective seriousness of the substantive offence, the facts and circumstances of the Form 1 offences might be relevant to the assessment in that, for example, the circumstances of the Form 1 offences might place the substantive offence in context: Director of Public Prosecutions (NSW) v TH [2023) NSWCCA 81 at [24] per Beech-Jones CJ at CL (as his Honour then was); LN v R [ 2020] NSWCCA 131.

56. In Re Attorney General's Application under s 37 of the Crime (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002), Spigelman CJ at [42] observed the following: –

"The position, in my opinion, is that, although a Court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of other offences will frequently indicate, or to be given greater weight by reason of the course of conduct which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences."

57. In Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1 Basten JA (with whom Hulme and Latham JJ agreed) said at [146]:

“[…] a course of unlawful conduct may well give rise to a number of possible charges. If the prosecution proceeds on one count only, it does not follow that the surrounding conduct cannot be taken into account in sentencing. The surrounding conduct cannot give rise to a more serious offence, but it can demonstrate the degree of seriousness with which the charged offence should be viewed.”

58. The three offences which the offender asked the Court to take into account in passing sentence involve the infliction of actual bodily harm in company against three victims all who suffered some injury, albeit not significant.

59. In terms of differing charges faced by differing offenders, the majority of the High Court (French CJ, Crennan and Kiefel JJ) stated in Green v R; Quinn v R (2011) 244 CLR 462 at [30]:

“The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v R, [48] there can be significant practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitation, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged.’ (Emphasis added) 

60. With respect to the offence of cause previous bodily harm to persons within intent, I am satisfied that the offender’s offending is less objectively serious than his co-offender. The co-offender inflicted the injury directly on the victim whilst wielding a knife. By way of contrast, the offender whilst criminally responsible for the same offence as part of a joint criminal enterprise, was not wielding the weapon which inflicted the injury.

61. The offence was committed whilst the offender was the subject of both a community corrections order and in intensive correction order. This to be contrasted with the co-offender who was only the subject of community corrections order. Whilst the offender has relevant subjective features, they are not to the same extent as the co-offender. I found that the prospects of rehabilitation of the offender are more positive than for the co-offender. Both have expressed remorse and I have made a finding of special circumstances with respect to both offenders.

62. I am satisfied that the s 5 threshold has been crossed and that no sentence other than imprisonment is appropriate. I am satisfied that this is an appropriate matter for the Court to invoke section 53A of the CSPA and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been made.

63. With respect to Count 1, affray, and taking into account the three offences on the Form 1 of assault occasioning actual bodily harm in company with others, the appropriate sentence is 3 years from which is to be deducted 5% for the plea of guilty resulting in a sentence of 2 year 10 months.

64. With respect to Count 4, cause grievous bodily harm with intent, the appropriate sentence is 5 years 6 months for which is to be deducted 5% for the plea of guilty resulting in a sentence of 5 years 2 months with a non-parole period of 3 years 1 month.

65. In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ).

66. Whilst there will need to be some accumulation reflected in the total aggregate sentence, noting there were multiple victims, it has a lesser role to play in determining the aggregate sentence given the offences occurred over a relatively short period of time and there was some underlying factual commonality.

67. In all the circumstances, an appropriate aggregate sentence is 6 years 6 months.

68. The accused was arrested on 4 January 2023 and has remained in custody since that date. The accused was re-sentenced with respect to the offence for which he was serving an intensive correction order to 4 months 3 weeks imprisonment to date from his arrest for the offences for which he is to be sentenced. I am satisfied that the resentencing of the offender for the intensive correction order was a direct result of the offences for which he is now to be sentenced.

69. In determining when a person’s sentence is to commence it is important to apply the principles of totality and that a similar approach be taken by the Court as with the revocation of parole. It is important that the offender is not doubly punished to the extent that there is a mere accumulation in the various terms of imprisonment: Edquist-Wheeler v R [2024] NSWCCA 49. In the circumstances, I have determined that the sentence is to commence two months after the commencement of the revoked ICO sentence. Accordingly, the sentence is to be backdated to commence on 25 March 2023.

Orders

1. The offender is convicted of the offences.

2. The indicative sentences are set out above. I impose a total aggregate sentence of imprisonment of 6 years 6 months to expire on 24 September 2029.

3. I impose a non-parole period of 3 years 11 months to expire on 24 February 2027.

4. The earliest date the offender is eligible to be released on parole is 24 February 2027.

Decision last updated: 09 August 2024