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).
[2]
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 take into account any actual bodily harm suffered by the victim (R v Abboud [2005] NSWCCA 251 at [19]). Nevertheless, any physical and emotional reactions to an assault in a victim, such as difficulty sleeping, memory problems, anxiety and poor concentration have been identified as matters that potentially may be taken into account in sentencing for common assault. However, in relation to the offending conduct to which the plea was made, there was no evidence of such reactions in the victim. Conversely, the absence of substantial injury is a matter that can be taken into account in the offender's favour (s 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('the CSP Act').
For the same De Simoni reason, it is also the case that the Court cannot take into account whether the assault took place in the company of another person (R v Tran [2005] NSWCCA 35 at [17]).
Further, the mobile phone footage indicated that the assault occurred in a matter of seconds.
The punches were inflicted from behind the victim. The immediate consequence of striking someone from behind is that the victim is not able to see what is coming, and accordingly, take some protective step to cushion the effects of the blow. This can potentially lead to the risk of terrible injury or worse, subject to the hand of fate. However, the assault occurred in the context of a fight whose origins are not known to the Court. On the basis of the evidence, it cannot be said to be premeditated or even instigated by the offender.
I find that the offending occurred was at the mid-range for an offence of this kind.
The offending was aggravated by the circumstance that at the time of the offending, the offender was out on bail on a charge, for which (in February 2020) he subsequently was convicted.
[3]
Offender's subjective circumstances
At the time of the offending, the offender was 19 years old. He seems to have had a contented family background. A written reference was supplied to the Court from the offender's father, which referred to his work ethic and care for family and friends.
The offender completed his schooling at the end of Year 11. In 2019, he commenced TAFE qualifications in carpentry. He is currently scheduled to commence his third year of four years for those studies.
Since April 2018, he has also worked with the construction form, Ratcliffe Constructions, situated in Caringbah. A reference from his employer was before the Court which speaks to his good qualities as an employee and his aspirations to become a builder.
Written testimonials to the offender's character are in evidence. These extend beyond the offender's father and employer to a written reference from a community church which spoke to the offender's involvement in junior community football and another man, who was the father of a girlfriend to the offender, who spoke of the offender's worth ethic and demonstrable good values.
The offender has a prior criminal history. On 27 February 2020, he was convicted in the Sutherland Local Court of an offence of drug supply for an indictable quantity of a prohibited drug. In view of that offence, I am unable to make an unqualified finding of prior good character. Nevertheless, I take into account the testimonials in his favour.
The Crown accepts that the offender is entitled to a 25% reduction in penalty on account of his plea, as being appropriate under s 25D(3)(a1) of the CSP Act.
The offender's counsel argued that the plea, and other matters, supported a finding of remorse and contrition. I do not accept that submission. Although there are some indications of regret amongst the written testimonials, there is a contrary indication in the written reference of his father to the offender believing that he acted in self-defence. There is nothing in the offender's own letter to the Court which suggests any insight that he did anything wrong, or any acceptance of responsibility. To the contrary, the offender's letter concentrated upon the impact upon him of his own injuries to his mouth arising from the fight and the onerous nature of bail conditions; made more onerous than they would have otherwise been but for the earlier, unrelated offence for which he was ultimately convicted.
I am concerned about the prospects of offending. Twice within 6 months, the offender has been engaged in criminal activity arising, first, from supply of an illicit substance and secondly, the excessive consumption of alcohol. The Crown suggested that one possibility might see the adjournment of the sentencing proceeding until a sentencing assessment report was obtained. I do not regard that as being necessary. Counsel for the offender, after the plea of guilty was indicated on 25 February 2021, pressed for the expeditious determination of the sentencing proceeding. Counsel for the offender submitted that, on his instructions, the offender has no criminogenic factors; whilst acknowledging that others might view the offender's circumstances differently and indicating that the offender was not averse to counselling if that was thought appropriate.
I can put his prospects of re-offending as no higher than reasonable. The same might be said about his prospects of rehabilitation. In the offender's favour, I acknowledge that he has been subject to onerous bail conditions which, I believe, has had its own salutary effect upon the offender. Nevertheless the circumstance of this offence, and the prior offence, concern me about a proclivity to drugs and/or alcohol abuse which needs to be addressed, for the offender's own benefit and also for the protection of the community.
[4]
Synthesis
I take into account each of the considerations in s 3A of the CSP Act. General and subjective deterrence, denunciation and holding the offender to the account are important. This is particularly so where, as I have determined, I do not consider that he has any real contrition. That does not mean that any greater penalty should be visited, but it limits scope for leniency. Because of the offender's relatively young age and immaturity, rehabilitation has its role to play. I am satisfied that this brush with the criminal law, and particularly the bail conditions imposed upon him, has been salutary for the offender. He is a young man who, it appears, otherwise has a sense of direction.
Counsel for the offender disavowed any submission that no conviction should follow. In my view, he was right to do so. In view of aggravating circumstance to which I have alluded, and the nature of the assault, involving punches to the back of someone's head, I do not consider that this would be adequate penalty to reflect the gravity of the conduct.
I find the offender guilty of the offence under s 61 of the Crimes Act 1900 (NSW).
Mr Plunklett, please stand.
Taking into account your guilty pleas, I order you to comply with a conditional release order, for a period of one year, commencing 1 March 2021, with the standard conditions, being that (a) you must not commit any offence and (b) you must appear before the court if called on to do so at any time during the term of the conditional release order.
Pursuant to s 99(2) of the CSP Act, I also direct that you participate in such drug and alcohol rehabilitation program as may be determined as suitable for you by a community corrections officer under cl 189D of the Crimes (Administration of Sentences) Regulation 2014.
Mr Plunkett, you have avoided a period of custody and are released but only on condition that you must not commit any offence and that you must appear before the court if called upon to do at any time during the term of the conditional release order. If you fail to comply with the conditions of this order, further action may be taken against you, including requiring you to return to Court to be re-sentenced. Do you understand?
I note that a charge on a s 166(1) certificate has been withdrawn.
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 March 2021