R v Ross

Reduced culpability?

1. I noted in the reasons for the finding of guilt that by operation of the joint enterprise liability principles, it is sufficient that the offender participated in the enterprise and that such participation was made out by his presence at the place of the assault. It was unnecessary to ascribe a particular role that the offender played. There was, as the Crown conceded in his closing address at trial, reasonable doubt as to whether the offender himself personally kicked, punched or in some other way assaulted the victim. The circumstance that there is reasonable doubt whether the offender was himself an assailant, and, as a corollary, that his liability 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].
2. Adopting the well-established distinction between criminal responsibility and culpability, Counsel for the offender submitted that because the offender's precise role during the assault could not be identified, it necessarily means that his conduct fell at the low end range of objective gravity for this offence. I reject that submission by its terms. As Ford recently indicates, a finding of guilt on the basis of joint enterprise might reduce the objective gravity of an offender's conduct in comparison with the situation whereby the conviction arises on the basis of the offender being a principal assailant. But the submission disregards the other matters I have referred to, including the nature and extent of the violence inflicted and the circumstance of the offender being well and truly in the thick of the planning and execution of that enterprise, before and after the assaults had been perpetrated.
3. I will refer to the offender's antecedents later in these remarks, but in relation to the issue of the offender's culpability, I observe that for the earlier offence of recklessly causing grievous bodily harm in 2011, the Crown placed before the Court the statement of agreed facts before the sentencing court detailing the degree of violence which the offender inflicted on the victim in that case, including multiple punches to the head, resulting in traumatic head injuries; all because of apparently innocuous remarks by the victim at the offender's expense. As the Crown pointed out, the offender could be taken to know of the potential damage that might be caused by multiple strikes to a victim's head. That was only where there was one assailant. The risk of damage is compounded where there are multiple assailants.
4. Further, if there is one thing that is clear as to what the offender was doing or not doing during the actual assault, there was nothing to suggest that, at any stage, the offender encouraged any of the assailants to cease or desist from inflicting further attacks upon the victim's head, knowing of the damage that could be caused.
5. Further, the submission has no regard to the principle of parity: it makes no reference to the circumstances of the co-offender. I will return to this issue later when dealing with parity as a separate section in these remarks.
6. For present purposes, however, I note that Counsel for the offender suggested that it could be inferred from the sentencing remarks in Hodder's case that the sentencing judge had determined that the co-offender, Hodder, had actually assaulted the victim and that this therefore distinguished his position from the offender's position. I do not draw the suggested inference. There was no admission to that effect in the agreed facts before the sentencing judge, which explains why her Honour did not deal with the matter. The position is that, although he was able to identify both Hodder and the offender during the assault perpetrated upon him, the victim could not specifically ascribe any precise role played by them - other than hearing Hodder's explanation that "this was for calling (him) a dog." Given the way that he was set upon, this was hardly surprising. When it came to identifying who was doing what during the course of the assaults, the position of the offender was relevantly indistinguishable from the co-offender's position.
7. As the Crown reminds me, Hodder's offending conduct was 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 that, if anything, the level of the offender's offending was at a higher level.
8. The circumstance that it is not possible, to the requisite standard of proof, to ascribe what the offender was doing during the attack does not materially alter his overall culpability, having regard to all of the other circumstances I have alluded to.
9. I find that the offending conduct fell at the mid-range of the range of objective seriousness for conduct of this kind.

AGGRAVATING CIRCUMSTANCES

1. The offence occurred whilst the offender was out on conditional liberty in relation to an offence (s 21A(2)(j) of the CSP Act). On 4 March 2015, he had been sentenced to a term of imprisonment for drug offences and was out on parole from 12 February 2018.
2. I note that the offender has a record of prior convictions for 'serious personal violence offences' (s 21A(2)(d), 21A(6) of the CSP Act) and see the definition of 'personal violence offence' under s 4 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)). In this context, the circumstance of the prior conviction does not aggravate the offence. It is only an aggravating circumstance in the limited sense of augmenting the sentencing factors of retribution, specific deterrence and protection of society: R v Wickam [2004] NSWCCA 193.

Age & background

1. The offender is now 34 years old. He was 33 at the time of offending.
2. No evidence was adduced explaining any underlying causes of the criminality arising from the offender's background which might result in greater leniency being extended to the offender.

Antecedents

1. The offender's criminal history is extensive, dating back to 2003, when he was only 18 years of age. Much of it consists of offences involving violence. The history includes offences of breaking and entering, robbery, larceny, assault occasioning actual bodily harm (twice), recklessly causing grievous bodily harm, drug offences (supply as well as possession) and unauthorised possession of a pistol. These were the offences committed in New South Wales alone. There were other offences committed in Queensland (including unlawful possession of a firearm) and Western Australia (a driving offence involving alcohol). He has been incarcerated for significant periods from 2005.

Contrition, remorse or insight

1. There is no suggestion that any of these matters exist which might serve as mitigating factors.

Rehabilitation & likelihood of re-offending

1. The Crown placed before the Court a breach of parole report, dated 17 June 2019. As indicated, that report arose from the offender being charged with certain offences in June 2019 (about 14 months after the subject offending). Materially, the report from the corrections officer noted that the offender's most significant criminogenic risk factors included being involved with 'pro-criminal associates, the supply and use of illicit substances and being in possession with prohibited weapons'. The report also noted that, in two specific instances throughout 2019, the offender had been located in the company of other parolees.
2. The offender relied upon a reference from Mr Tom Hall, a former police officer. Mr Hall, who received a diagnosis of Parkinson's' Disease in 2008, says he has known the offender for 3 years. Mr Hall referred to his performing a mentoring role, in assisting the offender, during the offender's period of parole. Mr Hall expressed disappointment at hearing of the subject offending, as he believed that the offender had been making a genuine attempt to adjust to living a life of normality with his family.
3. This reference, along with that of his partner, Ms Williams, which I will shortly turn to, provides limited support to the offender: it indicates that, with his family and mentor, attempts have been made to life a normal life, as a family man. But it has the unintended effect, also, of indicating that the criminogenic traits identified in the breach of parole report, are of such force in the offender as to impede those attempts. As noted in my reasons in finding guilt, part of the lead up to the offending conduct involved the offender fraternising with persons who, to put it politely were dubious. This included Micallef, who, the evidence suggested, the offender's partner, Ms Williams, did not want the offender to associate with. But the offender could not help himself but to continue to do so. The offender's counsel accepted that his prospects of his re-offending can only be regarded as guarded.
4. No material has been furnished to indicate that the offender has learnt anything from the subject offending. In particular, nothing has been said about what the offender proposes to do about his issues with illicit substance abuse. Prospects of rehabilitation are no more than guarded.

Facilitating the administration of justice

1. The offender submits that by electing to have trial by judge alone, he facilitated the administration of justice (per s 22A of the CSP Act) and is thereby entitled to receive some discount.
2. In my view, there is substance to this contention. The offender foreshadowed an election for trial by judge alone on 24 March 2020. The Crown did not oppose it. It was the case, back in March this year, when new jury trials were suspended in the Court, that indications were made by some judges that the degree to which the administration of justice was facilitated by an accused may be taken into account in sentencing. This was in a context where the Court was trying to do its best, within the exigencies of the COVID-19 Pandemic, to continue with its business.
3. 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, on the basis that it spared the need for management of a jury and the need to assemble a jury pool in the early stages of the Pandemic. I consider that the decision provides some analogy to s 22A since similar considerations apply.
4. For the purposes 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 trial and also reduced the backlog of cases that the Court will experience when jury trials resume. That was not only beneficial to the Court but also beneficial to the community generally in allowing the Court to continue with its provision of an 'essential service'.
5. In my view, there has been utilitarian value in the offender's election and, further, given the encouragement by the Court, or some of its judges, to the idea that the election could or should be made by accused persons during the Pandemic, it is appropriate to make a discount. I note that the Crown did not disagree with this view. I consider a discount of 5% to be appropriate.

HARDSHIP TO THIRD PARTIES

1. The Court was supplied with a statement by the offender's partner, Ms Kira Williams. Ms Williams had given alibi evidence for the offender at the trial. In my earlier reasons, I noted that Ms Williams was a busy nurse working at an aged-care facility. The gist of the statement was partly to indicate that, whilst on parole, the offender formed a close fatherly relationship with the couple's children, which partially relieved both Ms Williams and the children's grand-parents of having to look after them. It was also to partly indicate that the offender had used his time on parole to establish a removalist business, which has fallen away; and finally, to indicate that Ms Williams has sustained work-related injuries to her neck and lower back. There are suggestions also of the presence of cancer cells. She is clearly struggling with the care of her children; one of whom - it has recently been observed - has learning difficulties associated with speech.
2. It is well-established that 'exceptional', or perhaps, 'highly exceptional', circumstances are required before a sentencing court may give substantial weight to the impact that an otherwise justified sentence may have on third parties: R v Edwards (1996) 90 A Crim R 510 at 515.
3. Whilst the Court is sympathetic to Ms Williams' position, and recognises the distress occasioned to her by a range of unfortunate events arising at about the same time, I do not regard the matters referred to as sustaining a view that her circumstances are relevantly exceptional. As to the fall in the business, there was no evidence of reliance upon the takings of the business for the family economy. As to the care of the children, the reality is that, for most of the last 15 years, she has had to use her own resources and those of extended family, to assist with the care of the children. It is not the case that, over a prolonged period, the offender has been involved in their daily care. The nature of the offender's offending, in respect to the subject offence, is such that the period of the offender's separation from the children, and the heightened added burden upon Ms Williams (and other family members) is an inevitable price to be paid for the offending. Further, the offender has been back in custody since the offending and there is no indication in her reference as to particular difficulties she has experienced with the care of children since that occurred. As to the work-related injuries and concern about the presence of cancerous cells, there is no suggestion that, for such periods of time that she will require treatment or further testing, the grandparents will be unable or unwilling to provide assistance.

PARITY

1. Part of the Crown's bundle of documents relied upon in this hearing concern an agreed statement of facts and remarks on sentence about Shannon Hodder. Hodder was, as I have said, another one of the group of men involved in the attack against the victim.
2. On 25 March 2020, Hodder was sentenced, following a guilty plea, to the same offence to a term of imprisonment of 2 years and 10 months with the non-parole period of 1 year, 6 months and 15 days. The head sentence was calculated following a 5% discount for that offender's guilty plea. As is evident from the sentencing remarks, the non-parole period was calculated to be 57% or slightly less than that, of the usual statutory ratio.
3. 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 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.
4. There were a number of common features as between the position of Hodder and the offender's position for which they are properly characterised as co-offenders: they were convicted of the same offence, the offence involved the same victim; the offence was committed by each of them whilst they were out on bail, the Crown could not establish the particular conduct of each offender in the assault on the victim but did establish, in each case, that they were part of a common enterprise. Both had extensive criminal histories prior to the offending; and both had multiple previous convictions for the offence of assault occasioning actual bodily harm. The Crown noted that in the co-offender Hodder's case, there were only a small number of violent offences, in comparison with the offender. I do not regard the differences as being all that material: both had a violent past at the time of the offending. The same aggravating factor arose in both cases.
5. The Crown accepted that on the known facts, it was difficult to differentiate between the two offenders. Certainly in relation to the precise roles of Hodder and the offender during the assault, their position is virtually indistinguishable.
6. But there were differences. Most obviously, this included Hodder's guilty plea. But aside from Hodder's plea, there are other differences in the positions of Hodder and this offender. The evidence indicates that the offender had a more extensive involvement in the enterprise, both before the assault and afterwards. In relation to the former, the facts which Hodder agreed to did not indicate any involvement by him in planning the assault. By contrast, the offender liaised with Pollock and Micallef to get the victim to the place of the assault on the day of the assault and the day before.
7. In relation to the latter, the offender assisted Micallef with the disposal of the 'get-away car'. As I read the sentencing remarks in relation to the co-offender Hodder, there is nothing that points to any involvement by him after the assault either.
8. These considerations lead me to conclude that, on the evidence before the Court, there was a slightly higher level of culpability and a slightly greater level of participation by the offender in the enterprise than was the case with Hodder.
9. Further, the sentencing remarks for Hodder alluded to his having run away from home at a very young age, which was attributed to Hodder's 'dysfunctional' family background. As I have noted, no such explanatory factors underlying this offender's criminality is before the Court.
10. In favour of the offender, from the point of view of comparison with Hodder, is his facilitation of the administration of justice. In terms of arithmetic, the discount I allow for his election for a judge-alone trial counterbalances the level of discount that was granted to Hodder by reason of his guilty plea.
11. In my opinion, these differences justify some disparity in the sentence imposed upon the offender, in comparison to Hodder.

SYNTHESIS

1. I have regard to the sentencing principles in s 3A of the CSP Act; as well as the principle of parity which I have referred to. Prominent considerations in my mind are the need for general and specific deterrence, protecting the community, the need for denunciation and retribution, holding the offender to account and recognising the harm suffered by the victim.
2. I reject the submission of the offender that because the offence could have been tried in the Local Court this means that it is less serious. That entirely disregards the serious nature of the offence, which is protean in nature, including the extent of the injuries and the orchestrated nature of the group assault.
3. I am satisfied that no penalty other than imprisonment is appropriate, pursuant to s 5(1) of the CSP Act, having regard to the objective gravity, the prescribed maximum penalty for the offence and the offender's subjective circumstances.

BACKDATING THE COMMENCEMENT OF THE TERM

1. The term will be backdated to the period that the offender commenced being in custody, but that is complicated by his being in custody for multiple reasons. I was informed by the Crown that he has spent 77 days in custody solely referable to the offending conduct here. The 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 parole (9 weeks) prior to committing this offence.
2. Counsel for the offender submits that credit should be given to the offender on the basis that he has been refused bail and the time that he has served for the balance of his parole period. The offender was arrested for the two counts, in respect he was later acquitted by me, on 11 May 2018 and despite having been granted bail by the Supreme Court (on 15 August 2018) he has remained in custody until he was released by the Parole Board on 6 September 2018. That is a period of 118 days in custody.
3. In my opinion, it is appropriate that the offender be given credit in respect to the longer period indicated by the offender.

SPECIAL CIRCUMSTANCES

1. The parity principle properly requires consideration of all components of an offence. That may apply in respect to the non-parole period [1] , notwithstanding that any variation of the usual statutory ratio essentially reflects the personal circumstances of the offender. The sentencing judge, when sentencing Hodder, also noted Hodder's drug problems, which will require treatment prior to his release into the community. Having regard to the breach of parole report, it appears that the offender also has a problem with illicit substance abuse. That said, it is clear from her Honour's remarks that there was a basis for thinking that Hodder's prospects of offending were favourable on account of his demonstrable abstinence from drugs. I confess to having concern that there are matters which point against optimism regarding the offender's capacity to rehabilitate himself, because of the criminogenic factors. In his favour, however, it does appear that he has used time, whilst on parole, to work.
2. Counsel for the offender submitted that there are special circumstances, on account of the time that the offender has already spent in custody and his need for assistance in rehabilitating himself once released. Mr Crown did not disagree, although he did not note that the offender had previously had findings of special circumstances in relation to prior sentences for imprisonment, on account of a need to assist with his rehabilitation, which allowance had been abused by the offender.
3. Some small weight is also to be accorded to the struggles experienced by the offender's partner, Ms Williams and the assistance with the care of her children.
4. In sentencing Hodder, the sentencing judge was influenced in her determination to vary the non-parole period by reference to the COVID-19 Pandemic and the need to facilitate his treatment for his drug addiction. I also note that her Honour's references to the COVID-19 Pandemic was made in a context where the state government had only just recently imposed social distancing restrictions.
5. Those sentencing remarks were expressed on 20 March 2020. In the intervening period since then, restrictions have generally eased in the community. I was not referred in evidence to the current situation in correctional centres. At any rate, I accept that even if the level of risk may have recently abated, it remains present and it is likely to remain present during a substantial part of the head sentence. I note that in another recent sentencing decision for the same offence, what was said to be the longer periods of lockdown 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]).
6. In my opinion, on balance, I do not consider that there is a significant divergence between the circumstances of Hodder and the circumstances of this offender, which would justify disparity in the adjustment of the statutory ratio. I consider that the circumstances of the offender and co-offender in this particular respect are broadly comparable, however I think it is appropriate that on account of previous instances where such finding has been made it is important that the ratio should not be adjusted in a way which is excessively lenient to the offender.

ORDERS

1. Mr Ross, please stand.
2. You are convicted of the offence of assaulting David Monro in the company of others, contrary to s 59(2) of the Crimes Act 1900 (NSW).
3. I sentence you to a term of imprisonment of 3 years and 2 months commencing 15 February 2020 and expiring on 14 April 2023, with a non-parole period of 1 year and 10 months expiring on 14 December 2021. You will first be eligible for parole on 14 December 2021.
4. As to the back-up charges on the s 166W certificate, which remain disputed, there was no evidence adduced in the trial directed to the charges. The parties join in a submission that the Court remit the charges to the Local Court in Gosford to be determined according to law. I am satisfied that it is in the interests of justice to order the remission of those back up charges to the Local Court.
5. Pursuant to s 169(1) of the Criminal Procedure Act 1986 (NSW), I order that the charges on the s 166W certificate be remitted to the Local Court at Gosford to be determined according to law. These charges are remitted to the presiding Magistrate in the Gosford Local Court on 30 June 2020.

Endnote

1. Postiglione v The Queen (1997) 189 CLR 295 per Dawson and Gaudron JJ at [302]. 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: 17 June 2020