R v Riley, Nathan - [2010] NSWDC 81

CITATION: R v Riley, Nathan [2010] NSWDC 81

JUDGMENT DATE:
12 February 2010

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Sentence to 12 months imprisonment suspended conditional upon entering s.12 CSPA good behaviour bond.

CATCHWORDS: Criminal Law - Sentence - Assault Occasioning Actual Bodily Harm whilst in Company - Affray on Form 1 - offender travels some distance to join an affray on basis his friend was involved - assault involves punching and kicking victim on ground - injury substantial soft tissue damage - well effected by alcohol - no priors- reasonable subjectives.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Hearne (2007) 124 A. Crim.R 457
R v Cuthbert (1967) 2 NSWR 329
R v Rushby [1977] NSWLR 597
R v Hayes [1984] 1 NSWLR 740

PARTIES: Regina
Nathan Riley

FILE NUMBER(S): 2009/276839

SOLICITORS: Crown: Mr M Fay
Defence:Ms M Ryan

JUDGMENT
1. Nathan Riley is a young Aboriginal male. In March of 2008 he was twenty-one. He was living at Wellington. He had not been in trouble with the law. He had completed Year 12 at high school. He has a reasonable work ethic. As with many young men this age, he had bonded with a couple of mates including Nathan Ah See.

2. On 15 March 2008 he was at a mate’s place and as I understand it, the local club drinking. He claims that he consumed more than twenty schooners over a twelve-hour period. That was not contested by the crown. He is a tall, heavy set young man. Even so, that quantity of alcohol he had consumed, he says, may explain why it was he participated in what was a group related activity of violence.

3. He received information that his friend Ah See was involved in a fight. It does not appear Riley sought any further information, simply that he was willing to stand by Ah See’s side and participate with others in attacking and assaulting Richard Hutching without knowing the rights or wrongs of that matter. Riley has pleaded guilty to that assault which occasioned actual bodily harm to Hutchings, the assault being done whilst he was in the company of Ah See and two other men. Today he is to be held accountable for his criminal conduct. He asked when I sentence him that I take into account a further offence of affray arising from the same incident. That matter was originally to be a s 166 criminal procedure matter. I have been asked to allow the prosecution to withdraw it from the summary jurisdiction so that it may be taken into account on the Form 1. That seems a sensible approach.

4. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence before this court committed by this offender harming this victim in the Wellington community. My initial task requires an assessment of the objective criminality of the offence before the court.…

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 Riley, Nathan

Details

AGLC: R v Riley, Nathan [2010] NSWDC 81
Case: [2010] NSWDC 81
Decision Date: 12 February 2010

CaseChat Overview and Summary

The defendant, Nathan Riley, was convicted for assault occasioning actual bodily harm while in company. The incident occurred during an affray where Riley, who had travelled some distance to join the conflict because a friend was involved, punched and kicked a victim who was on the ground. The victim sustained substantial soft tissue damage. Riley, who had no prior convictions, was significantly affected by alcohol at the time of the offence. The case was heard in the relevant court, which had to determine an appropriate sentence.

The court had to decide on a sentence that appropriately reflected the seriousness of the offence while considering the defendant's background and mitigating factors. The key issue was whether the assault was sufficiently severe to warrant a custodial sentence or if a non-custodial option would be more appropriate. The court considered the defendant's involvement in the affray, the extent of the injuries inflicted, and the mitigating factors such as the defendant's inexperience with the criminal justice system and the influence of alcohol.

The court found that while the injuries inflicted were severe, the defendant's lack of prior convictions and his substantial intoxication at the time of the offence were mitigating factors. The court also noted the subjective circumstances that influenced Riley's decision to join the affray. Weighing these factors, the court determined that a suspended sentence with conditions was the most appropriate outcome. Consequently, the court sentenced Riley to 12 months imprisonment, suspended conditionally upon his entering a good behaviour bond under section 12 of the Crimes (Sentencing Procedure) Act.

The final orders were that Riley be sentenced to 12 months imprisonment, which was suspended conditional upon him entering a good behaviour bond as per section 12 of the Crimes (Sentencing Procedure) Act. This decision balanced the need for punishment and deterrence with the opportunity for rehabilitation and consideration of the defendant's personal circumstances.

Orders

Orders of the court

Sentence to 12 months imprisonment suspended conditional upon entering s.12 CSPA good behaviour bond.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Riley, Nathan [2010] NSWDC 81
JUDGMENT DATE:	12 February 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Sentence to 12 months imprisonment suspended conditional upon entering s.12 CSPA good behaviour bond.
CATCHWORDS:	Criminal Law - Sentence - Assault Occasioning Actual Bodily Harm whilst in Company - Affray on Form 1 - offender travels some distance to join an affray on basis his friend was involved - assault involves punching and kicking victim on ground - injury substantial soft tissue damage - well effected by alcohol - no priors- reasonable subjectives.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Hearne (2007) 124 A. Crim.R 457 R v Cuthbert (1967) 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740
PARTIES:	Regina Nathan Riley
FILE NUMBER(S):	2009/276839
SOLICITORS:	Crown: Mr M Fay Defence:Ms M Ryan