R v Dillon; R v Rivera

[2019] NSWSC 1750

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Dillon; R v Rivera [2019] NSWSC 1750
Hearing dates:	6 December 2019
Date of orders:	06 December 2019
Decision date:	06 December 2019
Jurisdiction:	Common Law - Criminal
Before:	Campbell J
Decision:	(1) Joshua Dillon you are convicted of affray occurring on 18 July 2016. For this offence I sentence you to a term of imprisonment of 3 years duration, having a non-parole period of 2 years, commencing on 30 October 2017 and expiring on 29 October 2019, with an additional term of 1 year commencing on 30 October 2019 and expiring on 29 October 2020. (2) On this sentence under s 158 Crimes (Administration of Sentences) Act 1999 (NSW) you became eligible for release on parole on 29 October 2019. (3) I direct that you report to Community Corrections about your parole by 11 December 2019. (4) James Rivera you are convicted of affray occurring on 18 July 2016 and sentenced to a fixed term of imprisonment of 6 months, commencing on 18 July 2016 and expiring on 17 January 2017.
Catchwords:	Crime – Sentencing – affray – no question of principle
Legislation Cited:	Crimes (Sentencing Procedure Act) 1999 Sentencing Act ss 3A; 24
Cases Cited:	Stevens v R [2007] NSWCCA 152 Khanwaiz v R [2012] NSWCCA 168 R v Daetz; R v Wilson [2003] NSWCCA 216; R v Colgan [1999] NSWCCA 292
Category:	Sentence
Parties:	Crown Joshua Dillon James Rivera
Representation:	Counsel: Neil Adams (Crown) Luke Brasch (for the accused, Dillon) A Francis (for the accused, Rivera) Solicitors: Solicitor for Public Prosecution (Crown) Rivera Legal (for the accused, Dillon) Elie Rahme & Associates (for the accused, Rivera)
File Number(s):	2016/2174352016/217438
Publication restriction:	In the interest of the administration of criminal justice, judgment not to be published until the completion of the trial arising out of the murder of Brayden Dillon - Non Publication Order revoked 14 August 2020

Judgment

1. Joshua Dillon and James Rivera have both pleaded guilty to affray under s 93C(1) of the Crimes Act 1900 (NSW) and it is my duty to sentence them for that offence. The particulars of the charge are that on 18 July 2016 they did use unlawful violence towards Adam Abu-Mahmoud at Panania by conduct such that a person of reasonable firmness if present at the scene would have feared for their safety.

2. Affray carries a maximum penalty of imprisonment for 10 years. Additionally, under s 93C(2) if 2 or more persons use or threaten unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1). It is not a standard non-parole period offence.

Factual Narrative

3. The charges arise out of a street brawl that occurred in the small shopping centre near Panania Railway Station shortly after 5 30 pm, a time when many passing members of the public were making their way home from work and other activities of daily life. The following narrative of material fact is drawn from the Statement of Agreed Facts signed by counsel supplemented to some small extent with evidence from the trial of Joshua Dillon.

4. When initiated the fight involved Joshua Dillon, James Rivera, and a third person who, as he was then a juvenile, I will refer to as JTR, on the one side and Adam Abu-Mahmoud and his two companions, on the other. Although I heard much evidence about the matter as context evidence in the trial of Joshua Dillon for the subsequent murder of Adam Abu-Mahmoud, of which he was acquitted by the jury, the genesis of the dispute remains obscure. There is no evidence of any previous animosity between these two groups of young men, other than the account of Joshua Dillon to Bradley Jones, psychologist, that some unspecified incident had transpired between the two groups some days previously. To that extent then, although involving conscious deliberation and a decision to fight, the combustion was more or less spontaneous.

5. Adam Abu-Mahmoud’s group of young men had gone to the shops to purchase cigarettes and soft drinks. Adam Abu-Mahmoud remarked to a shop keeper who inquired after his health that he was “angry today”. The reason for his disgruntlement is not elucidated.

6. As Adam Abu-Mahmoud and his two companions were consuming their purchases on the footpath outside the shops Joshua Dillon, James Rivera and JTR were returning from a gymnasium where they had spent about an hour working out. They were travelling in a white Toyota Hilux utility driven by James Rivera with Joshua Dillon and JTR travelling as passengers across the front bench seat. As they approached Panania shops Adam Abu-Mahmoud and his friends were standing near the corner of Marco and Anderson Avenues. James Rivera slowed the vehicle down and the occupants stared at Adam Abu-Mahmoud and his companions. Adam Abu-Mahmoud offered a challenge in offensive language to the effect of “what are you looking at?” The Toyota continued through and past the intersection. The occupants apparently thought it a good idea to drive around the block and the staring and the challenge were replayed. On this occasion the Toyota was brought to an abrupt stop a short distance from the corner where Adam Abu-Mahmoud and his friends were standing.

7. After some short discussion the three occupants alighted from the vehicle and strode purposefully towards Adam Abu-Mahmoud and his friends with Joshua Dillon taking the lead. He agreed in cross-examination when he gave evidence at his trial that he then had the intention of picking a fight with Adam Abu-Mahmoud and his friends.

8. Joshua Dillon was deprived of the opportunity of picking the fight because as he came face to face with Adam Abu-Mahmoud the latter threw the first punch striking Joshua Dillon in the face. Joshua Dillon, James Rivera and JTR all retaliated by punching Adam Abu-Mahmoud while he and one of his companions threw return punches. At this stage both groups were throwing punches and kicks towards one other.

9. Joshua Dillon then threw a punch at one of Adam Abu-Mahmoud’s friends knocking him to the ground. Someone yelled out “you wanna fucking king hit me?” and Adam Abu-Mahmoud yelled “you fucking Aussie dogs”.

10. The brawl moved along the footpath and JTR kneed Adam Abu-Mahmoud in the head causing the latter to fall to the ground. While he was down and vulnerable, Joshua Dillon stomped on his head.

11. A witness working in an adjacent shop saw what was occurring and yelled out “cut it out, otherwise I’ll call the police”. Adam Abu-Mahmoud managed to regain his feet and continued to throw punches.

12. A number of other unknown males joined the fray, in aid of Adam Abu-Mahmoud and his friends. By this stage the affray had moved from the footpath to the middle of the carriageway of Marco Avenue. By then there were up to ten males who had become involved in the fight.

13. At 5:48 p.m. the shop assistant called 000 and reported a fight between about 15 people on the corner of Anderson and Marco Avenues. She bravely left her store and observed the fight continue into Marshall Lane around the corner, off Marco Avenue.

14. Joshua Dillon’s then partner and one of her friends arrived at the location in the partner’s black Mitsubishi Lancer. Their infant son was also in the vehicle.

15. The partner exited the vehicle and tried to break up the fight by pulling Joshua Dillon away and guiding him towards the passenger side of her vehicle. In his attempt to extricate himself from the fight Joshua Dillon said, “My son’s in the car”. The partner, her girlfriend, and Joshua Dillon were then able to leave the scene in the Mitsubishi, returning to their home nearby.

16. JTR pulled James Rivera away from the fight and they left the scene in the white Toyota. Some of the other participants attempted to stop them leaving. Probably Adam Abu-Mahmoud was amongst them as his fingerprint was found on the exterior of the Toyota. As JTR and James Rivera were leaving, they were chased by three or four of the males who ran beside the car as they drove down Anderson Avenue and into Marco Avenue.

17. James Rivera drove the Toyota to JTR’s home which was also nearby. JTR went inside to speak to his mother and step-father to tell them what had happened as he was concerned from what had been said at the scene of the brawl that the people he had fought may come looking for him. James Rivera and JTR then drove to Joshua Dillon’s home.

18. At 5:51 p.m. Adam Abu-Mahmoud called his brother who ran from their nearby home to the location of the fight.

19. As a result of this incident, Adam Abu-Mahmoud received numerous blunt force injuries to his face including contusions over the left side of his forehead, extensive contusions to his nose, a patterned contusion over the left side of his face with associated deep subcutaneous injury, and superficial linear lacerations involving the inner aspect of his lower lip.

20. Adam Abu-Mahmoud also sustained an injury to his head consisting of numerous closely associated dot-like haemorrhages over the right parietal bone and an associated subgaleal haemorrhage. He also received contusions and abrasions over the right knee and right shin and abrasions over both elbows.

The death of Adam Abu-Mahmoud

21. Although not strictly relevant to the offence for which I am to sentence Joshua Dillon and James Rivera, it would be inapt for me to omit reference to the circumstances of Adam Abu-Mahmoud’s death. On the evidence I heard at the trial of Joshua Dillon for Adam Abu-Mahmoud’s murder, I am satisfied that not being satisfied with the outcome of the brawl with which I am concerned at this stage, Adam Abu-Mahmoud, his brother and one of his two friends drove to Joshua Dillon’s home. They arrived there just as James Rivera and JTR pulled into the driveway in the Toyota. At that stage Joshua Dillon was on the front porch holding his infant son. Before JTR and James Rivera could alight from the Toyota Adam Abu-Mahmoud and his brother attacked the vehicle armed with at least a hammer. It is reasonably possible that each also carried a knife. The brother smashed the driver’s door window of the Toyota, James Rivera got out and started struggling with him while Adam Abu-Mahmoud assisted his brother in the struggle. JTR apparently took the opportunity to take cover. Joshua Dillon emerged from the house armed with a knife. He saw the brother attempting to swing the hammer at James Rivera and believed he saw a weapon in Adam Abu-Mahmoud’s hand. He rushed to his friend’s aid stabbing Adam Abu-Mahmoud in the back a number of times.

22. He was charged with murder, as I have said, but acquitted by the jury. On the evidence I heard at the trial, the jury’s acquittal must have been based on the failure of the Crown to satisfy them beyond reasonable doubt that in stabbing Adam Abu-Mahmoud, Joshua Dillon had not acted in defence of his friend, James Rivera.

23. These facts then can be put to one side and are not relevant to sentencing Joshua Dillon except in one respect. Other evidence received by me on the voir dire during the trial indicated that in retaliation for the death of Adam Abu-Mahmoud certain persons procured another to murder Brayden Dillon, the younger brother of Joshua Dillon. Other apparently retaliatory acts were carried out or attempted. I will return to these matters of retaliation later in these reasons.

Objective gravity

24. It is a fundamental principle of sentencing law that the punishment must fit the crime. This finds expression in the proportionality principle expressed in s 3A Crimes (Sentencing Procedure Act) 1999 (“Sentencing Act”), which inter alia provides that it is a purpose of punishment “to ensure that an offender is adequately punished”. The proportionality principle requires that the sentence should neither exceed nor be less than the gravity of the crime having regard to its objective circumstances. Application of this principle as part of the instinctive synthesis which governs the sentencing task requires the Court to make an assessment of the gravity of the offending viewed objectively. This assessment is to be made wholly by reference to the objective circumstances of the offending and without reference to matters personal to the offender or class of offenders.

25. Mr Brasch of Counsel has pointed out in his written submissions by reference to the judgment of Price J in Stevens v R [2007] NSWCCA 152 (at [25]) that the factors relevant to objective seriousness of the offence of affray are as follows:

In determining an appropriate sentence for an offence of affray contrary to s 93C of the Crimes Act an offender’s conduct is to be considered in the context of the conduct of a co-offender. The level of violence used and the scale of the affray are relevant. An offender, however, may only be sentenced for that part of his conduct and the conduct of the co-offender which gave rise to the offence of affray and not that conduct which resulted in some other offence being committed by him or by the co-offender: see R v Huynh[2000] NSWCCA 18; R v Eleter[2003] NSWCCA 130 and R v Fajka[2004] NSWCCA 166.

Moreover, Beech-Jones J in Khanwaiz v R [2012] NSWCCA 168 (at [50]) pointed out that the offence of affray is an offence against public order. His Honour said: “The effect of the attack upon persons at the scene, cannot be understated.” The policies underpinning s 93C, “have a wider focus than just the impact on the direct victim of the unlawful violence”. Instances of affray risk undermining public confidence in the safety of our streets and homes.

Objective seriousness of Joshua Dillon’s offending

26. The Crown submitted that Joshua Dillon’s offending was a serious example of affray registering above the middle of the range for offences of this type. The violence was significant and Joshua Dillon stomping on Adam Abu-Mahmoud’s head while he was vulnerable was particularly despicable. Joshua Dillon was the ring leader who led James Rivera and JTR into action. It was submitted that the offending involved a high degree of actual violence perpetrated on a public street during peak hour when many members of the public were exposed to a situation which would have caused them to fear for their personal safety.

27. Mr Brasch submitted that although Joshua Dillon sought out a physical confrontation, it was Adam Abu-Mahmoud who struck the first blow. He submitted there is no actual evidence that the members of the public passing nearby were actually frightened. The fight did not involve the use of any weapon or improvised weapon and other than a degree of deliberation when the Toyota came to a halt there was no planning or premeditation. Learned counsel, however, accepted that this affray was “one of relative seriousness”.

28. I am of the view that the circumstances of Joshua Dillon’s participation in this affray render it a relatively serious one. I am not persuaded that, so far as it may be relevant to say it registers above the midrange. Still he was the ring leader who initiated contact. He would have picked a fight had Adam Abu-Mahmoud not beat him to the first punch. His leadership led James Rivera and JTR into the fight and I accept that stomping on the head of an opponent when he is down is cowardly and despicable.

The objective seriousness of James Rivera’s offending.

29. The Crown submissions did not distinguish between James Rivera and Joshua Dillon for the purpose of assessing objective seriousness. Ms Francis of Counsel submitted that James Rivera is only to be sentenced on the basis of his conduct and that of his co-offenders to the extent he is appraised of the latter. It was submitted he did not know precisely what Joshua Dillon intended.

30. Bearing in mind Price J’s statement that an offender’s conduct is to be considered in the context of the conduct of a co-offender, which accords with the express terms of s 93C, there may be little to distinguish James Rivera from Joshua Dillon. On the other hand, he was a follower, not a leader, and did not engage directly in the same range of violence as Joshua Dillon. But all in all, it is difficult to distinguish between them when one takes the whole of their conduct as co-offenders together. I would only make a slightly lesser assessment of objective seriousness having regard to the objective circumstances in James Rivera’s case than I made in Joshua Dillon’s case.

Joshua Dillon’s subjective circumstances

31. Joshua Dillon was born in August 1997 and was aged 18 at the date of the offending. He is 22 now. Much of the subjective circumstances relevant to Joshua Dillon are derived from the report of Bradley Jones, forensic psychologist dated 5 December 2019. I acknowledge that Joshua Dillon gave evidence exposing himself to cross-examination, during the trial.

32. Joshua Dillon was born to young parents. He was the elder of their two sons. His parents separated when he was 5. His mother subsequently formed a new relationship and he has two younger half siblings from that new relationship.

33. He was brought up in humble but stable circumstances. He described his mother as a very loving, caring and supportive woman. After his parents’ separation, he saw his father only every two or three months. Since the events of July 2016 he has rekindled his relationship with his father and they are now very close.

34. Although money was very tight when he was growing up, he played rugby league between the ages of 6 and 18. He attended school, but experienced learning difficulties relating to his ability, or rather inability, to retain information. He left school at the end of Year 9. He was lucky enough to obtain an apprenticeship as a roof tiler and he completed the requisite trade certificate. He worked in that trade for about two years, then in scaffolding for six months, demolition work for a year and was working as a fencer at the time of the offending. While on remand he worked as a sweeper for about 12 months.

35. He did not drink alcohol before the age of 17, and on his history to Mr Jones, it seems he did not abuse alcohol. He was a frequent smoker of cannabis from the age of 16 years. There is no suggestion that substance abuse played any part in this offending.

36. There was no history of mental illness prior to Joshua Dillon’s arrest. However, according to the report of Mr Jones, which I accept, as a result of the shocking reprisal killing of his younger brother, Brayden, to whom he was very close, he experienced symptoms of sadness, depression, guilt and loss. He suffered an abnormal grief reaction and at times while dropping off to sleep he experienced auditory hallucinations “such as people laughing and conversing, footsteps and individuals calling his name”. He received treatment for this condition in custody including the prescription medications Seroquel and Prazosin. His symptoms in custody included a degree of suicidal ideation and he reported one fortunately unsuccessful attempt to take his own life. He was afforded between 20 and 30 mental health treatment sessions while in custody.

37. Mr Jones administered a battery of familiar psychological tests and conducted a mental state examination. He diagnosed Joshua Dillon as suffering from a moderately severe Major Depressive Disorder with features of anxiety. Although Joshua Dillon has discontinued his medication since being released on bail, Mr Jones is of the view that he does require ongoing treatment and has recommended that he re-engage with treatment. He is also of the view that monitoring by community corrections personnel would be beneficial “to limit destabilising influences”.

38. Joshua Dillon expressed guilt and remorse to Mr Jones in the following terms:

I wish I had never done that, had never gotten out of the ute. It was the worst mistake I have ever made. I could never have considered how bad things could have gotten because of that decision. It has resulted in pain for many people and many families. I wish I could go back in time and tell myself not to get out of the ute.

Although Joshua Dillon has not given sworn testimony on the proceedings on sentence, I have had the advantage, as I have said, of seeing and hearing him give evidence during his trial. I am prepared to accept Mr Jones’s record as an accurate and truthful expression of remorse by Joshua Dillon.

39. Joshua Dillon’s plea of guilty to the charge of affray was not entered until 8 October 2019, the first day of the trial after the hearing of preliminary legal arguments. It is a late plea of little utilitarian value, but in accordance with usual practice some discount should be afforded him in the sentence that would otherwise would be passed in respect of it. I propose to allow a discount of 10 per cent.

40. Although I have accepted that he is remorseful a number of factors render the assessment of his prospects of rehabilitation somewhat guarded. These relate mainly to his criminal record. There is a body of offending prior to July 2016 when he was a juvenile including a conviction for an aggravated break and enter and commit serious indictable offence. The aggravating factor was the circumstance he was in company. There is also a conviction for dishonestly obtaining property by deception and an associated larceny conviction. More significantly, after his arrest on charges relating to the events of 18 July 2016, he has committed three violent offences while in custody. They are: an affray for which he was arrested on 30 April 2017; common assault on 27 January 2018; and assault occasioning actual bodily harm on 14 July 2018. In respect of the first and third of these matters he received a sentence of imprisonment. For the first matter, the sentence was 15 months with a non-parole period of 7 months; and for the third, a sentence of 12 months with a non-parole period of 7 months. The common assault matter was dealt with by the imposition of a community corrections order of 12 months duration. Additionally, there were 8 significant breaches of prison discipline attracting punishments between 16 January 2018 and 20 August 2019, set out in the Crown’s written submissions. Each of those matters, among many other breaches, involved aspects of violence.

41. Although Joshua Dillon spent 3 years, 3 months and 12 days in custody until granted bail by me on the return of the jury’s verdict of not guilty of murder, he had been serving the other sentences during part of that time. The Crown calculate that the total time in custody solely referrable to this offending is 2 years and 1 month, an approach with which Mr Brasch does not disagree.

Subjective circumstances of James Rivera

42. James Rivera was born in October 1995, making him 19 at the date of offending and 24 now. Ms Francis of Counsel, who appears on his behalf has submitted that his subjective case is “exceptional”. It is certainly a strong one. He gave evidence at the trial and I formed a favourable impression of his honesty and reliability. His affidavit sworn on 4 December 2019 was read without objection and he was briefly cross-examined. Likewise the affidavit of his mother, Melissa Rivera sworn on the same date was read and she was not cross-examined.

43. James Rivera was the first of his parents’ two children. His parents were hard working, respectable people of limited means who provided a loving family environment and good home to their children. James Rivera did very well at primary school and was vice captain of his school. However, his father died tragically in 2006, when James Rivera was only 11, from liver disease contracted as a long-term complication of childhood hepatitis. Although he attempted to assume more responsibility in the family following his father’s death, his mother noticed that when he started high school he associated with older kids and she felt he lacked the guidance that a strong father figure would have provided. He became increasingly uninterested in his studies, but he still managed to complete his higher school certificate.

44. From the age of 13 he had undertaken part time paid employment to assist at home. Initially he obtained work as a lawn mower mechanic and mowing lawns. He also worked for Toll Freight doing “pick-packing” in the evenings after school. Upon leaving school he obtained an apprenticeship as a diesel mechanic for a bus company and also did extra work in a friend’s trucking business. When arrested on 18 July 2016 he was only one week away from the completion of his apprenticeship. He hopes to return to his trade following the completion of these proceedings.

45. He coached the local under 13’s rugby league team.

46. He and his partner have recently welcomed their first child into the world.

47. He has no relevant criminal record either before or after 18 July 2018, although he was on a bond for a drug possession offence at the time of this offending and I bear that in mind as an aggravating factor.

48. Following his arrest he spent 7 months and 28 days on remand before being granted bail. His remand related specifically to the charge of murdering Adam Abu-Mahmoud which was no-billed prior to the commencement of the recent trial. He was granted bail by this Court and has been subject to fairly onerous conditions of bail for a period approaching 3 years, a factor which I will take into account for sentencing purposes as a matter of mitigation.

49. He pleaded guilty at committal in the Local Court and he is entitled to a 25 percent discount in the sentence that would otherwise be imposed for that early plea.

50. I am satisfied that he is remorseful. In his affidavit he stated ([4] – [5]):

I am writing to your Honour today to express my sincere apologies to the Court; the innocent bystanders; my family and the wider community for my role in the incident that took place on the evening of 18 July 2016.

In making this apology I wish to convey to your Honour and to the Court that I am deeply ashamed of my actions and acknowledge that the events of 18 July 2016 will remain with me for the rest of my life.

He also said (at [12] – [14]):

The reality of all this is that, aside from what I have experienced over the last 3 years, my life will be changed for ever as a result of the events of 18 July 2016. It will not be an event that has shaped the course of my life, but rather an event that will shift the direction that my life takes. For me there is my life before 18 July 2016, and my life after 18 July 2016.

I have experienced a great deal over the last 3 years of my life which have taught me a great deal. It’s a learning experience I would not wish upon anyone else. I have spent 9 months in custody at Parklea Correctional Centre. This was my first time in custody, and while it was an incredibly difficult experience, I resumed my strong work ethic, progressing to become the “leading hand” at the laundry.

I should never have become involved in the fight that night. I should not have stopped the vehicle or been provoked by the actions of others. The experiences since of having been custody; the court proceedings; the death of Brayden Dillon; and the risks I have exposed myself and my family to are hard to come to terms with. I deeply regret my actions that night.

I fully accept the sincerity of that statement and from it I infer that he is deeply remorseful for his part in this offending. This not only augers well for his rehabilitation but I am satisfied that his rehabilitation is complete and that it is exceedingly unlikely that he will ever offend in this way, or at all, again.

Extra-curial punishment

51. Both Joshua Dillon and James Rivera have relied upon the reprisals that followed the events of 18 July 2016, and in particular the murder of Brayden Dillon on 14 April 2017 as a form of extra judicial punishment to be taken into account in mitigation of their penalties.

52. In his written submissions Mr Brasch referred me to the decision in R v Daetz; R v Wilson [2003] NSWCCA 216; 139 Aust Crim R 398 where James J said (at [62]):

[The authorities establish] that, while it is a function of the courts to punish persons who have committed crimes, a sentencing court, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender, the court takes into account what extra-curial punishment the offender has suffered because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment.

I am satisfied that the effect upon each of Joshua Dillon and James Rivera of the shocking reprisal killing of Brayden Dillon has been profound, albeit in different ways. As James Rivera said in his affidavit:

When I learned that Brayden Dillon had been murdered on Friday 14 April 2017, the reality of what I was part of really set in. It has changed the way I live my life. I have installed cameras at my house, and I am immediately on edge whenever I hear a Harley Davidson or modified car come into the residential complex where I live. Out of sheer habit I am always careful about where I go and I like to make sure that I am never alone.

53. I add that from her affidavit, that matter has also visited hardship upon Mr James Rivera’s mother and changed her circumstances of life. I would regard that hardship to her as a member of Mr Rivera’s family as falling into the exceptional category which justifies my having regard to it also as a mitigating factor in sentencing.

54. So far as Joshua Dillon is concerned, he has lost his brother, lives in constant fear that the reprisals will extend to him and has suffered as I have explained the mental illness diagnosed by Mr Jones, substantially as a result of the killing of his brother. I will take these factors into account in mitigation.

Parity

55. As I have said, there were 3 offenders. The co-offender JTR who was a juvenile and was dealt with as such in relation to this crime. He received a 2 years’ probation order, without conviction in the Childrens Court at Parramatta on 31 January 2019. JTR was born in November 1998 and was therefore 17 going on 18 when the offending occurred. Obviously there is not much of an age difference between any 2 of the 3 of them. Although Joshua Dillon and James Rivera fall to be dealt with as adults, the report of Mr Jones speaks eloquently of the incomplete neurodevelopment of males in late adolescence and how that may contribute to offending behaviour. This observation is equally applicable to each of the co-offenders.

56. Ms Francis, in her written submission, referred me to the judgment of Spigelman CJ in R v Colgan [1999] NSWCCA 292. There the Chief Justice indicated that parity considerations did not truly arise when comparing a person sentenced in the Childrens’ Court to adults. However, his Honour also said:

… that does not mean that the sentence imposed on a person in the Children’s Court, which would otherwise give rise to issues of parity, is irrelevant. This is so for the reason that an individual sentenced as an adult may very well have a justifiable sense of grievance with respect to that very difference of the regimes.

His Honour’s wise observation must be applicable here where all three co-offenders were of similar age and were friends engaged in the same conduct.

57. Questions of parity directly arise between James Rivera and Joshua Dillon. The parity principle is an aspect of a more fundamental principle of equality before the law. That fundamental principle requires like to be treated alike and differences to be acknowledged. There are significant differences between the offending and subjective cases of James Rivera and Joshua Dillon. So far as the offending is concerned Joshua Dillon was, as I have said, the ring leader. Although all must be taken to have agreed to engage in the brawl, so far as these three co-offenders were concerned Joshua Dillon instigated their participation in it and as the Statement of Facts makes clear, he engaged in a particularly despicable act by stomping on Adam Abu-Mahmoud’s head when he was down. But I bear in mind (I repeat) that, as Price J said in Stevens v R:

An offender however, may only be sentenced for that part of his conduct and the conduct of the co-offender which gave rise to the offence of affray and not that conduct which resulted in some other offence being committed by him or by the co-offender.

58. It must also be said that the subjective case of James Rivera is far more compelling than the subjective case of Joshua Dillon mainly because of the difference in criminal record involving Joshua Dillon’s subsequent violent offending when in custody and the negative impact that has upon his prospects for rehabilitation and his risk of re-offending. Finally, there is of course the difference in the value of the discount for the plea of guilty due to each. I will bear all these things in mind.

Sentencing James Rivera

59. The cases have emphasised the importance in sentencing an offender for an offence of affray, of the underlying consideration that such an offence is an offence against public order and that the violence inflicted on the primary victim is not the sole consideration. Passers-by going about their daily lives in the near vicinity of the affray are likely to be afraid for their own safety and the safety of their companions or family. For these reasons, considerations of denunciation and general deterrence need to be clearly in focus amongst the various purposes of sentencing set out in s 3A Sentencing Act.

60. Ms Francis persuasively argued that bearing in mind the order made in JTR’s case and having regard to James Rivera’s compelling subjective case, I should not be satisfied that having considered all possible alternatives, no penalty other than imprisonment is appropriate. In this regard it is important to bear in mind s 5(2) Sentencing Act which requires a court to make a record of its reasons for sentencing an offender to a term of imprisonment for 6 months or less, explaining why no penalty other than imprisonment is appropriate and why an available intervention or other program for treatment or rehabilitation has not been preferred.

61. Ms Francis argued that all the purposes of punishment would be satisfied in this case by dealing with Mr James Rivera under s 10A of the Sentencing Act by recording a conviction without imposing any other penalty.

62. I have given this matter anxious consideration, but I am not satisfied that that would be an appropriate order. This offending, as James Rivera’s expressions of remorse themselves indicate, involved more than a degree of deliberation. Although Joshua Dillon was the ring-leader, James Rivera willingly participated in the brawl. The brawl lasted several minutes and eventually involved as many as 10 or so people. During the whole of that time, although no specific acts of particular violence may be attributed to him, it is open to infer from the agreed facts that he was fully involved in trading blows with fists or feet with other participants in the affray. That he and his companions became outnumbered and had difficulty extracting themselves from the affray may explain the duration of it. However, notwithstanding the insults Adam Abu-Mahmoud offered them, had James Rivera not stopped the Toyota, had he not agreed with Joshua Dillon to confront the others and to fight them, the brawl and the public violence it involved would not have occurred. For these reasons including the consideration that denunciation and general deterrence must figure in the reckoning and having regard to the proportionality principle, I am satisfied that no sentence other than imprisonment is appropriate in this case.

63. I acknowledge that given his prior good character and the leaps and bounds he has taken towards his rehabilitation in circumstances of not inconsiderable adversity, specific deterrence is not a factor. However, I have decided not to impose a non-custodial option like a community correction order, largely to acknowledge the time that James Rivera has already served on remand under s 24 Sentencing Act and to give due weight to his rehabilitation. So far as the latter consideration is concerned, he does not need ongoing support from Community Corrections in my judgment. The sentence I propose is one of 6 months imprisonment commencing on the day of his arrest on 18 July 2016 and expiring on 17 January 2017. But for the early plea I would have imposed a term of 8 months.

Sentencing Joshua Dillon

64. The difficult issue in sentencing Joshua Dillon is his criminal record, particularly his record for crimes of violence while in custody subsequent to his arrest on 18 July 2016. Related to this of course are the breaches of prison discipline involving aspects of violence as detailed in the Crown’s written submissions. As I have said, notwithstanding his relative youth and the positive aspects of his subjective case, including his genuine remorse, the matters of concern leave a very large question mark over his prospects for rehabilitation and make it difficult therefore to assess the risk of re-offending. I could not find other than his record shows a continuing risk, although his remorse is a positive factor, suggesting too much pessimism would be misplaced.

65. In his case, quite apart from denunciation and general deterrence, one must have regard to specific deterrence and the need to promote his rehabilitation. His mental illness issues, of course, arose after the death of his brother in April 2017 and do not reduce his moral culpability for this offending. I acknowledge the condition would have made his time in custody more onerous. I also acknowledge that his record of violence in custody may be explained, but certainly not justified, by an aspect of self-preservation. He was an 18 year old admitted to adult prison on remand. His circumstances must have been very difficult. I repeat that on the calculations of the Crown, of the 3 years and 3 months he spent in custody on remand, the total time solely referable to this offending was 2 years and 1 month.

66. Much of the argument at the proceedings on sentence concerned Joshua Dillon’s continuing need for treatment for his mental health issues, anger management, and the consideration, according to Mr Jones, that he would benefit from “monitoring” by Community Corrections. Given his record and my reservations about his prospects a continuing community based order would be in his interests and, of course, would serve to protect the community from the risk of him offending further. However, my reservation about making such an order really turns on two considerations. First, I am satisfied for reasons similar to those expressed in the case of James Rivera, all the more so in the case of Joshua Dillon, because he was the ring leader, that having considered other options no sentence other than full time imprisonment is appropriate. Secondly, however, I am concerned about the application of the principle of proportionality. Around two years in full-time custody represents a significant penalty having regard to the objective circumstances of the offending for a relatively youthful offender.

67. But, having regard to: the maximum penalty of 10 years; the relative seriousness of this example of affray; the need for community protection; and my findings about rehabilitation and the risk of re-offending, after the discount of 10 percent, I am of the view that the appropriate sentence of imprisonment in Mr Dillon’s case is one of 3 years. Having regard to his youth and the difficulty his mental illness imposes, I find special circumstances and I would structure the sentence with a non-parole period of 2 years and an additional term of 1 year. Bearing in mind the provisions of s 158 Crimes (Administration of Sentences) Act 1999 (NSW) I would also direct that he not be taken back into custody at this time, but that he report to Community Corrections in relation to his parole by 11 December 2019.

68. I have decided that the provision of parole is the more appropriate way of providing that degree of community protection and supervision to which I have referred, rather than an intensive correction order.

64. Orders:

1. Joshua Dillon you are convicted of affray occurring on 18 July 2016. For this offence I sentence you to a term of imprisonment of 3 years duration, having a non-parole period of 2 years, commencing on 30 October 2017 and expiring on 29 October 2019, with an additional term of 1 year commencing on 30 October 2019 and expiring on 29 October 2020.

2. On this sentence under s 158 Crimes (Administration of Sentences) Act 1999 (NSW) you became eligible for release on parole on 29 October 2019.

3. I direct that you report to Community Corrections about your parole by 11 December 2019.

4. James Rivera you are convicted of affray occurring on 18 July 2016 and sentenced to a fixed term of imprisonment of 6 months, commencing on 18 July 2016 and expiring on 17 January 2017.

Amendments

14 August 2020 - Paragraph 48: Spelling of Abu-Mahmoud corrected

14 August 2020 - Non publication order revoked 14 August 2020

Decision last updated: 14 August 2020