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R v Ross (No. 5)

R v Ross (No. 5)

Case [2020] NSWDC 306 12 June 2020

Criminal Liability

Sentencing

Joint Criminal Enterprise

Actual Bodily Harm

Conditional Liberty

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Ross (No. 5) [2020] NSWDC 306
Hearing dates: 12 June 2020
Date of orders: 12 June 2020
Decision date: 12 June 2020
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 65-68

Catchwords: CRIMINAL LAW – sentencing – offence of assault occasioning actual bodily harm in company – liability arising through joint criminal enterprise – relevance of absence of finding that offender himself assaulted victim to culpability and objective gravity – parity principle where co-offender sentenced by different sentencing judge – where offending occurred whilst offender was on conditional liberty – whether offender facilitated administration of justice through election for trial by judge alone in the midst of COVID-19 Pandemic
Legislation Cited: Crimes Act 1900 (NSW), ss 59, 193C
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 4
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22A
Criminal Procedure Act 1986 (NSW), s 169
Drug Misuse and Trafficking Act 1985 (NSW), s 10
Firearms Act 1996 (NSW), s 65
Cases Cited: Baquiran v R [2014] NSWCCA 221
Callaghan v R [2006] NSWCCA 58
Coulter v The Queen (1988) 164 CLR 350
DPP v Bourke [2020] VSC 130
Ford v R [2020] NSWCCA 99
Green v The Queen; Quinn v the Queen (2011) 244 CLR 462
Kocyigit v R [2018] NSWCCA 279
Lowe v The Queen (1984) 154 CLR 606
Mansour v R [2011] NSWCCA 28
Mansour v R; Hughes v R [2013] NSWCCA 35
Matzick v R [2007] NSWCCA 92
Postiglione v The Queen (1997) 189 CLR 295
R v Bloomfield (1998) 44 NSWLR 734
R v Channells (unrep, 30/9/97, NSWCCA)
R v Driscoll (unrep, 15/11/90, NSWCCA)
R v Edwards (1996) 90 A Crim R 510
R v King (2004) 150 A Crim R 409
R v Mackey [2006] NSWCCA 254
R v Reid (2005) 155 A Crim R 428
R v Richards; R v Amuso [2020] NSWDC 258
R v Ross (No.4) [2020] NSWDC 197
R v Tuuta [2014] NSWCCA 40
R v Wickam [2004] NSWCCA 193
R v Wilkinson (No. 5) [2009] NSWSC 432
R v Woods (unrep, 9/10/1990, NSWCCA)
RP v R (2015) 90 NSWLR 234
Vaeila, Jonathon v R [2010] NSWCCA 113
Vragovic v R [2007] NSWCCA 46
Category: Sentence
Parties: Director of Public Prosecutions
Mr DM Ross
Representation:
Counsel:
Mr K Gilson for the Director of Public Prosecutions
Mr J O’Sullivan for the offender
Solicitors:
Solicitor for the Director of Public Prosecutions
Conditsis Lawyers for the offender

File Number(s): 2018/148887
Publication restriction: Nil

SENTENCING REMARKS

INTRODUCTION

On 19 April 2018 in Wyong, a gang of assailants set upon David Monro, raining down punches and kicks. One of them stabbed him with a knife on his right side.
On 12 May 2020, following a trial by judge alone whilst sitting in Gosford, I found the offender guilty of Count 3 on an indictment, being that on 19 April 2018, in Wyong, and in the company of Kirk Micallef and Shannon Hodder, he assaulted David…

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 Ross (No. 5)

Details

AGLC: R v Ross (No. 5) [2020] NSWDC 306
Case: [2020] NSWDC 306
Decision Date: 12 June 2020

CaseChat Overview and Summary

In the matter of R v Ross (No. 5), the respondent was charged with the offence of assault occasioning actual bodily harm in company. The case was heard in the County Court of Victoria. The primary issue before the court was the appropriate sentencing for the respondent who participated in a joint criminal enterprise that resulted in the offence. The court had to determine the relevance of the absence of a finding that the respondent himself physically assaulted the victim to his culpability and the objective gravity of the offence. Additionally, the court considered the parity principle in the context of sentencing where co-offenders were sentenced by different judges, and the impact of the respondent’s actions occurring while he was on conditional liberty. The court also examined whether the respondent facilitated the administration of justice by electing for a trial by judge alone during the COVID-19 pandemic.

The court held that while the respondent did not personally assault the victim, his role in the joint criminal enterprise was significant, and his culpability could not be diminished by his absence in the physical act of assault. The objective gravity of the offence was assessed based on the collective actions of the group. The court applied the parity principle to ensure that the sentencing was consistent with that of co-offenders, despite being sentenced by different judges. The court took into account the respondent’s actions while on conditional liberty as an aggravating factor. Furthermore, the court recognised the respondent’s election for a trial by judge alone as an attempt to facilitate the administration of justice during the pandemic, which was considered in his favour.

Ultimately, the court determined that the appropriate sentence should reflect the collective culpability of the group and the individual’s role within it. The court balanced the aggravating and mitigating factors, including the respondent’s facilitation of justice during the pandemic. The sentencing was structured to reflect the gravity of the offence and the respondent's culpability.

The court ordered the respondent be sentenced to a term of imprisonment, with specific details of the term and any additional penalties outlined in paragraphs 65 to 68 of the decision. The court also noted the importance of the respondent’s actions in choosing a trial by judge alone during the pandemic, which was taken into account as a mitigating factor in the sentencing.

Orders

Orders of the court

See paragraphs 65-68

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Ross (No. 5) [2020] NSWDC 306

Most Recent Citation

R v Kim [2020] NSWDC 589

Cases citing this decision · 2 of 2 shown

R v JDS (No. 2)
[2022] NSWDC 103 Para 58

…emic, that served to reduce delays and case backlog and was therefore beneficial to the court system and to the community, relying on R v Ross (No 5) [2020] NSWDC 306. It was submitted a discount should be granted to the offender for the utilitarian value of the election.…
R v Kim
[2020] NSWDC 589 Para 2

…(the Act) for the utilitarian benefit afforded to the community by electing to be tried by judge alone (as explained by Abadee DCJ in R v Ross (No 5) [2020] NSWDC 306 at [33], [36] - [37], who allowed a 5% discount on this ground). Also in respect of this offence, the fact that the offender agreed to a statement of…

View all 2 citing cases →

Cases cited in this decision · 21 of 21 shown

R v Kenneth Stephen Richards; R v Domenic Amuso
[2020] NSWDC 258 Para 62

…n in correctional centres was taken into account when assessing the length of the non-parole period, if only in a minor way ( R v Richards; R v Amuso [2020] NSWDC 258 at [51]).…
Ford v R
[2020] NSWCCA 99 Para 14

…ability has arisen by virtue of principles of joint criminal enterprise, may lessen, to some degree, the objective gravity of his offending: Ford v R [2020] NSWCCA 99 at [105] & [120].…
R v Ross (No. 4)
[2020] NSWDC 197 Para 2

…Hodder, he assaulted David Monro, contrary to s 59(2) of the Crimes Act 1900 (NSW). My reasons for this finding have been published: R v Ross (No.4) [2020] NSWDC 197. These remarks assume some familiarity with those reasons and, of course, the findings of fact in this sentencing proceeding must be consistent with…
DPP v Bourke
[2020] VSC 130 Para 33

…So far as I am aware, no sentence has been given in this Court allowing a discount because of this factor. But I note that in DPP v Bourke [2020] VSC 130 at [32], in the context of assessing the discount for a guilty plea, Dixon J elevated the utility of that plea, and the level of discount because of the plea, o…
Kocyigit v R
[2018] NSWCCA 279 Para 12

…13 at [22]; Mansour v R [2011] NSWCCA 28 ; Mansour v R; Hughes v R [2013] NSWCCA 35 at [43]; R v Tuuta [2014] NSWCCA 40 at [52]; Kocyigit v R [2018] NSWCCA 279 at [36]. It might also be said that occupants of a residential facility are reasonably entitled to expect that violent acts are not played out before their e…
Baquiran v R
[2014] NSWCCA 221 Para 20

…as characterised as falling at the mid-range by the sentencing judge. That does not, of course, mandate that I reach the same finding: Baquiran v R [2014] NSWCCA 221. At any rate, for reasons I elaborate in the section of these remarks dealing with ‘Parity’, on the basis of the evidence before the Court, I consider…
R v Tuuta
[2014] NSWCCA 40 Para 12

…); Vaeila, Jonathon v R [2010] NSWCCA 113 at [22]; Mansour v R [2011] NSWCCA 28 ; Mansour v R; Hughes v R [2013] NSWCCA 35 at [43]; R v Tuuta [2014] NSWCCA 40 at [52]; Kocyigit v R [2018] NSWCCA 279 at [36]. It might also be said that occupants of a residential facility are reasonably entitled to expect that violen…
RP v R
[2013] NSWCCA 192 Para 34

…es of s 22A, it does not matter what motivated the accused, in the sense of any perceived forensic advantages of having trial by judge alone ( RP v R (2015) 90 NSWLR 234 at [94]). The discount is purely granted for its utilitarian benefit. Here, the offender’s election served to reduce the delay in conducting the tria…
Mansour v R; Hughes v R
[2013] NSWCCA 35 Para 12

…R v Woods (unrep, 9/10/1990, NSWCCA); Vaeila, Jonathon v R [2010] NSWCCA 113 at [22]; Mansour v R [2011] NSWCCA 28 ; Mansour v R; Hughes v R [2013] NSWCCA 35 at [43]; R v Tuuta [2014] NSWCCA 40 at [52]; Kocyigit v R [2018] NSWCCA 279 at [36]. It might also be said that occupants of a residential facility are reaso…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 43

…I take into account the parity principle, which is grounded in the norm of equal justice ( Green v The Queen; Quinn v the Queen (2011) 244 CLR 462), noting that the principle is not infringed where due allowance is made for differences. Because the co-offender was sentenced by another Judge of this Court, I am not on…
Mansour v R
[2011] NSWCCA 28 Para 12

…ir business without fear of being attacked: R v Woods (unrep, 9/10/1990, NSWCCA); Vaeila, Jonathon v R [2010] NSWCCA 113 at [22]; Mansour v R [2011] NSWCCA 28 ; Mansour v R; Hughes v R [2013] NSWCCA 35 at [43]; R v Tuuta [2014] NSWCCA 40 at [52]; Kocyigit v R [2018] NSWCCA 279 at [36]. It might also be said that oc…
Vaeila, Jonathon v The Queen
[2010] NSWCCA 113 Para 12

…ave a fundamental right to go about their business without fear of being attacked: R v Woods (unrep, 9/10/1990, NSWCCA); Vaeila, Jonathon v R [2010] NSWCCA 113 at [22]; Mansour v R [2011] NSWCCA 28 ; Mansour v R; Hughes v R [2013] NSWCCA 35 at [43]; R v Tuuta [2014] NSWCCA 40 at [52]; Kocyigit v R [2018] NSWCCA 279…
R v Wilkinson (No. 5)
[2009] NSWSC 432 Para 8

…echnically arises after the commission of an offence may remain relevant to considering the objective gravity of offending: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].…
Matzick v R
[2007] NSWCCA 92 Para 13

…to indicate any provocation to the offender for this assault, which is a relevant circumstance when assessing its objective seriousness: Matzick v R [2007] NSWCCA 92 at [23]; R v Reid (2005) 155 A Crim R 428 at [25]; R v Mackey [2006] NSWCCA 254 at [14].…
Vragovic v R
[2007] NSWCCA 46 Para 12

…gree of planning is a relevant factor when assessing the objective seriousness of an offence: R v King (2004) 150 A Crim R 409 at [174]; Vragovic v R [2007] NSWCCA 46 at [32]. If not actually an aggravating circumstance, under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the CSP Act’), the fact…
Mackey v Regina
[2006] NSWCCA 254 Para 13

…ant circumstance when assessing its objective seriousness: Matzick v R [2007] NSWCCA 92 at [23]; R v Reid (2005) 155 A Crim R 428 at [25]; R v Mackey [2006] NSWCCA 254 at [14].…
Callaghan v R
[2006] NSWCCA 58 Para 55

…Crown submitted that the Court’s discretion to backdate a sentence to overlap with some part of a previously incurred parole period ( Callaghan v R [2006] NSWCCA 58) should not be exercised here, amongst other reasons, given the offender’s record of prior breaches of parole, and the shortness of time he was on paro…
R v Wickham
[2004] NSWCCA 193 Para 24

…cumstance in the limited sense of augmenting the sentencing factors of retribution, specific deterrence and protection of society: R v Wickam [2004] NSWCCA 193.…
Postiglione v the Queen
[1997] HCA 26 Para 58

…the criminogenic factors. In his favour, however, it does appear that he has used time, whilst on parole, to work. 1. Postiglione v The Queen (1997) 189 CLR 295 per Dawson and Gaudron JJ at [302].…
Coulter v The Queen
[1988] HCA 3 Para 11

…For the subject offence, it is unnecessary to ascribe specific intention to the offender in causing actual bodily harm: Coulter v The Queen (1988) 164 CLR 350. Nevertheless, I am not precluded by the De Simoni principle from finding, as I do, that the offender intended that actual bodily harm would be inflicted on th…
Lowe v R
[1984] HCA 46 Para 43

…f this Court, I am not only required to consider the sentence imposed upon him, but also the circumstances in which it was imposed ( Lowe v The Queen (1984) 154 CLR 606 at 622). In that regard, I have read the sentencing remarks, which substantially incorporate the statement of agreed facts signed by Hodder.…

Legislation cited in this decision · 6

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 22A, 3A, 5 5 mentions (from Para 12)
Crimes Act 1900 (ACT)
193C, 59 3 mentions (from Para 2)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
4 2 mentions (from Para 24)
Criminal Procedure Act 1986 (NSW)
169 2 mentions (from Para 68)
Drug Misuse and Trafficking Act 1985 (NSW)
10 2 mentions (from Para 1)
Firearms Act 1996 (TAS)
65 2 mentions (from Para 2)

Medium Neutral Citation:	R v Ross (No. 5) [2020] NSWDC 306
Hearing dates:	12 June 2020
Date of orders:	12 June 2020
Decision date:	12 June 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 65-68
Catchwords:	CRIMINAL LAW – sentencing – offence of assault occasioning actual bodily harm in company – liability arising through joint criminal enterprise – relevance of absence of finding that offender himself assaulted victim to culpability and objective gravity – parity principle where co-offender sentenced by different sentencing judge – where offending occurred whilst offender was on conditional liberty – whether offender facilitated administration of justice through election for trial by judge alone in the midst of COVID-19 Pandemic
Legislation Cited:	Crimes Act 1900 (NSW), ss 59, 193C Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 4 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22A Criminal Procedure Act 1986 (NSW), s 169 Drug Misuse and Trafficking Act 1985 (NSW), s 10 Firearms Act 1996 (NSW), s 65
Cases Cited:	Baquiran v R [2014] NSWCCA 221 Callaghan v R [2006] NSWCCA 58 Coulter v The Queen (1988) 164 CLR 350 DPP v Bourke [2020] VSC 130 Ford v R [2020] NSWCCA 99 Green v The Queen; Quinn v the Queen (2011) 244 CLR 462 Kocyigit v R [2018] NSWCCA 279 Lowe v The Queen (1984) 154 CLR 606 Mansour v R [2011] NSWCCA 28 Mansour v R; Hughes v R [2013] NSWCCA 35 Matzick v R [2007] NSWCCA 92 Postiglione v The Queen (1997) 189 CLR 295 R v Bloomfield (1998) 44 NSWLR 734 R v Channells (unrep, 30/9/97, NSWCCA) R v Driscoll (unrep, 15/11/90, NSWCCA) R v Edwards (1996) 90 A Crim R 510 R v King (2004) 150 A Crim R 409 R v Mackey [2006] NSWCCA 254 R v Reid (2005) 155 A Crim R 428 R v Richards; R v Amuso [2020] NSWDC 258 R v Ross (No.4) [2020] NSWDC 197 R v Tuuta [2014] NSWCCA 40 R v Wickam [2004] NSWCCA 193 R v Wilkinson (No. 5) [2009] NSWSC 432 R v Woods (unrep, 9/10/1990, NSWCCA) RP v R (2015) 90 NSWLR 234 Vaeila, Jonathon v R [2010] NSWCCA 113 Vragovic v R [2007] NSWCCA 46
Category:	Sentence
Parties:	Director of Public Prosecutions Mr DM Ross
Representation:	Counsel: Mr K Gilson for the Director of Public Prosecutions Mr J O’Sullivan for the offender Solicitors: Solicitor for the Director of Public Prosecutions Conditsis Lawyers for the offender
File Number(s):	2018/148887
Publication restriction:	Nil