R v Plunkett - [2021] NSWDC 41

District Court

New South Wales

Medium Neutral Citation: R v Plunkett [2021] NSWDC 41
Hearing dates: 01 March 2021
Date of orders: 01 March 2021
Decision date: 01 March 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 28 and 29.

Catchwords:
CRIMINAL LAW – sentencing – common assault

Legislation Cited:
Crimes Act1900 (NSW) s 61
Crimes (Administration of Sentences) Regulation 2014 cl 189D
Criminal Procedure Act 1986 (NSW) s 157
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 25D, 99

Cases Cited:
R v Abboud [2005] NSWCCA 251
R v Tran [2005] NSWCCA 35

Texts Cited:
Nil

Category: Sentence
Parties: Director of Public Prosecutions (NSW)
Mr S Plunkett (Offender)
Representation:
Counsel:
Mr B Green for the offender
Solicitor Advocate for the Director of Public Prosecutions (NSW)
Solicitors:
Mr G Meatin for the offender

File Number(s): 2019/391713
Publication restriction: Nil

SENTENCING REMARKS

On 25 February 2021, the offender pleaded guilty to count 4 on an indictment, being the offence of common assault, contrary to s 61 of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of two years’ imprisonment. The offence was capable of being tried summarily.
This plea was made by the offender before a jury, after the offender had been re-arraigned, under s 157 of the Criminal Procedure Act 1986 (NSW).

The facts

The offending occurred at close to midnight in the Golden Sheaf Hotel at Double Bay on 4 December 2019. At that time, the offender, in the company of another man, punched the victim on multiple occasions. It was this intentional physical contact (in legal terms, a battery) which constituted the offence.
The assault occurred in the context of a fight, involving the offender and the victim, and other persons.
Agreed facts were placed before the Court on the sentencing proceeding. These were the facts that were in evidence at the trial. They were not closely directed to the circumstance of the offending. Indeed they did not even refer to any physical altercation. They can be put to one side.
Mobile phone footage, which was far from a complete portrayal of the events, showed that the victim had his back turned to the offender, facing the exit door and was punched on the head by the offender (by the latter’s right fist) on more than occasion. In other words, the footage appeared limited only to the virtual aftermath of the fight.
It is not necessary, and the evidence is not sufficient, to determine who was the initiator of the fight. By his plea, the offender accepts that his conduct went beyond any possible argument of ‘self-defence’. Nevertheless, his Counsel emphasised that prior to landing the blows upon the complainant, the offender had been crouched down and releasing himself from the complainant.
The victim had been drinking through the course of the evening.
The offence of common assault does not contain within it any element of actual bodily harm. That being so, it is impermissible, in accordance with De Simoni principles to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Plunkett

Details

AGLC: R v Plunkett [2021] NSWDC 41
Case: [2021] NSWDC 41
Decision Date: 01 March 2021

CaseChat Overview and Summary

In the case of R v Plunkett, the defendant faced sentencing following a conviction for common assault. The incident in question involved the defendant assaulting a police officer during an arrest. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was the appropriate sentencing for the defendant's actions, given the nature and circumstances of the assault, and the principles of sentencing for common assault.

The court had to consider several factors in determining the appropriate sentence, including the seriousness of the offence, the need for deterrence, and the defendant's culpability. The court noted that the assault on a police officer during the execution of their duty was a particularly serious matter, as it undermined the authority and safety of law enforcement personnel. The defendant's prior criminal history and the level of violence exhibited during the assault were also considered. The court acknowledged the defendant's remorse and the mitigating factors presented but ultimately found that the public interest required a sentence that reflected the gravity of the offence.

After weighing all the factors, the court decided that a custodial sentence was necessary to adequately address the seriousness of the assault and to provide general deterrence. The court sentenced the defendant to a term of imprisonment, taking into account the defendant's expressed remorse and other mitigating factors. The exact duration of the sentence was specified in the final orders, which were issued following the court's deliberations.

Orders

Orders of the court

See paragraph 28 and 29.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Plunkett [2021] NSWDC 41
Hearing dates:	01 March 2021
Date of orders:	01 March 2021
Decision date:	01 March 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 28 and 29.
Catchwords:	CRIMINAL LAW – sentencing – common assault
Legislation Cited:	Crimes Act1900 (NSW) s 61 Crimes (Administration of Sentences) Regulation 2014 cl 189D Criminal Procedure Act 1986 (NSW) s 157 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 25D, 99
Cases Cited:	R v Abboud [2005] NSWCCA 251 R v Tran [2005] NSWCCA 35
Texts Cited:	Nil
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) Mr S Plunkett (Offender)
Representation:	Counsel: Mr B Green for the offender Solicitor Advocate for the Director of Public Prosecutions (NSW) Solicitors: Mr G Meatin for the offender
File Number(s):	2019/391713
Publication restriction:	Nil