Assessing the gravity of the offending
- It has been said that the gravity of the subject offence is affected by the seriousness of the injuries (McCullough v R (2009) 194 A Crim R 439 at [37]), but also the nature of the attack and surrounding circumstances are highly relevant: McCullough v R at [37]. In Stevens v R [2017] NSWCCA 216, the Court of Criminal Appeal affirmed these principles, emphasising that the result of the offending is scarcely the only consideration to take into account. Bellew J (Hoeben CJ at CL and Davies J agreeing) also adverted (at [41]-[42]) to other considerations including the degree of violence and the ferocity of the attack; whether the attack was unprovoked and whether it may have been perpetrated against someone innocently going about their business.
- I am mindful of the circumstance that I am sentencing the offender for an offence whose mental element is recklessness, rather than the (more serious) offence of specific intent under s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). But that does not mean that the Court should ignore the circumstance, if it arises, that the offender intended to cause actual bodily harm in the victim: (R v Channells (unreported, 20/9/97, NSWCCA).
- The offender's legal representative submitted (in written submissions) that relevant considerations were the fact that there was a single punch, the attack itself was brief and that the harm which resulted was more severe than what could have been expected. Nevertheless, the offender acknowledged that the 'injury' is long lasting. Overall, he accepted that the offence was in the middle range of offending for an offence of this kind.
- The Crown accepted that the assault was of a short duration; although that did not greatly assist the offender. The Crown emphasised that the single punch was directed at the victim's head; so the violence was significant. The Crown emphasised that the attack was unprovoked and, moreover was sudden: there was no obvious sign that it might occur. This meant that the victim was unguarded. The Crown submitted that the injury to the victim was extremely severe; well above the mid-range of injuries constituting the expression 'grievous bodily harm'.
- I find that the gravity of the offending was such that it fell within the mid-range of offending, although I am inclined to think that it was at the lower end of that mid-range. I am mindful, in particular, of the very serious injuries in the victim, as admitted. That said, there was no evidence of current disabilities in the victim nearly a year on from the assault. I also accept the brief nature of the attack. The circumstance that it was not premediated does not materially assist the offender: single punch assaults by an intoxicated person rarely are. Further, the assault did not involve the use, or threatened use, of any weapon. The offender was drunk which, to any sober person, might have instilled greater fear. But the victim also had had a lot to drink (Agreed Fact 13) so this factor was not quite so readily applicable. I am not convinced the victim's position was fully analogous to the innocent bystander walking down a street at night and attacked from behind. There had been earlier unfriendly exchanges that the victim had with the offender. In hindsight, he might have been best to have left the premises. So to state is not to blame the victim: he had every right to remain at the party and to do so without any kind of molestation. The observations are made simply to distinguish him from the type of victim who walks down a street minding their own business. Further, given the latent, or perhaps even patent, hostility exhibited by the offender to the victim during the evening, an attack may not have been entirely surprising (although I accept that this is easier to say with the benefit of hindsight).
- There was, a significant degree of recklessness regarding the risk of harm associated with the impact of the punch, directed, as it was, to the victim's head. But although I accept that the victim did not have real opportunity to defend himself given the unprovoked nature of the assault, it was not the worse kind of single punch where the assailant punches from behind the victim.