King v R [2020] NSWDC 565

District Court New South Wales

Medium Neutral Citation: King v R [2020] NSWDC 565 Hearing dates: 17 July 2020 Decision date: 17 July 2020 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: 1. The sentence appeal is upheld in part. 2. I confirm the conviction but vary the sentence imposed below. Catchwords: APPEALS - District Court - Appeal against sentence in Local Court CRIME - Affray - Assault occasioning actual bodily harm company of others CRIME — Violent offences — Assault occasioning actual bodily harm - street violence – retributive sentence required - moderation in length of Non-parole period required to reflect efforts toward rehabilitation Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes (Administration of Sentences) Act 1999. Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Herring (1956) 73 WN (NSW) 203 R v Loveridge [2014] NSWCCA 120 Category: Principal judgment Parties: Bradley King (Appellant) Director of Public Prosecutions (Respondent) Representation: Solicitors: Mr A Williamson, Williamson Isabella Lawyers (for the appellant) Ms K McCosker, Director of Public Prosecutions File Number(s): 2019/00394235

Judgment – ex tempore revised 1. On Sunday 9 December 2019, a man and two women, were waiting on Fairy Meadow Railway Station. They saw a young person behaving badly. They asked him to pick up his rubbish and put it in the bin. The young person threatened the man, who was ultimately the victim in this matter. Following his threats, the young person left and met up with others. 2. What occurred thereafter was shown in CCTV: exhibit D. The victim in the matter is standing on the railway platform; the train is pulling into the station; he is set upon by a number of young men, who run towards him and start punching him in the head. Initially not all were involved; the man in the yellow shirt is seen putting down a drink, before he joins the affray. 3. The facts say, and the CCTV indicates, that the victim was fortunate not to have rolled into the train that was entering the station. He is then, in the station waiting area, assaulted by a number of men, including the man in the yellow shirt, who punches him a number of times to the head. Although the assault lasts less than a minute, quite a number of blows are struck by each of the assailants. 4. The victim was not really in a position to do anything other than try and protect himself from further assaults, given the rapidity with which he is hit, and the number of assailants coming at him from different directions. He is effectively finished off by another man, who I am told is Dylan Pike. Pike holds the victim's head, pulls his head down and moves his knee up to connect with the victim's head. It appears this particular act, for which all must assume responsibility, led to the perforation of the victim's left eardrum. The victim also had cuts to his nose and facial swelling. He was obviously distressed, as were those with him. 5. King entered pleas of guilty in the Local Court to two offences. Magistrate Kiely sentenced him to an aggregate sentence of 12 months with a non-parole period of 8 months. 6. Pike was sentenced by Wollongong Local Court on 9 June 2020. He has lodged an appeal against the sentence. His appeal is to be heard at Wollongong District Court on 14 August 2020. 7. The Victim Impact Statements speak to what occurred, and how the incident has impacted both on the victim and on his girlfriend. She was pregnant at the time. She was not directly assaulted by either person but she has lost her unborn child. The Court has sympathy for that, as one must, but I cannot take that factor into account; there are many reasons why a young woman might have a miscarriage. Nevertheless, I am prepared to accept, and give appropriate weight to the impact on these two persons. 8. The man in the yellow shirt is the present appellant, Bradley King. King entered guilty pleas to the charges of assault and affray at the earliest opportunity. 9. When King had an opportunity to view the recording, he expressed to a parole officer his personal disgust and remorse. He said until he had viewed the CCTV footage he could hardly believe what he had done; he said it made him feel sick. I think anyone in the community who saw what occurred would feel sick. 10. The material before me indicates that while awaiting sentence, King was on strict bail conditions, and he kept to those conditions. 11. He has never before appeared before a Court. He was born in 1996. He has had a number of problems in his life. He left school early but he has a job; he has a good relationship with his partner and they have a child. He has community support. 12. While King has in the past mixed with people who could loosely be called "the criminal element", it would appear his relationship, his job, and his growing maturity, meant that he was well on the way to becoming a good, ordinary, member of our community, making the contributions that one expected of a member of the community. And yet this night he engaged in serious actual violence that could have had more serious consequences, but still had lasting physical and psychological consequences for his victim and the victim's partner. 13. Mr Williamson, who appears on his behalf, submits first by reference to s 5, Crimes (Sentencing Procedure) Act 1999, that the custodial sentence imposed by Magistrate Kiely was not of itself justified. He then suggests that if service of a custodial sentence by way of Intensive Correction in the community can meet all the purposes of sentencing, it would effectively be in the community interest. He notes that it is always a drastic and terrible step to send anyone to gaol for the first time; particularly someone who is making a contribution, and for whom separation from his family and loss of a job would cause considerable additional hardship than those who are not in such a position. He notes that community protection can often best be secured by having a person give something back to the community by engaging in community service and by engaging with Community Corrections to address any offending behaviour, and reduce, if not eliminate, the risk of ever being in this situation again. 14. Mr Williamson, whose experience is considerable, notes that it is not at all unusual that a person who is sent to gaol for the first time mixes with other criminals in gaol and learns a negative lesson from being in gaol. They can then lose hope particularly if prosocial contacts in the community are broken, and some prisoners can lose the incentive to mix with prosocial friends and continue working as they have in the past. That is a real risk, as the biggest predictor of whether someone will go to gaol again is the fact that they have been to gaol in the first place. I am well aware of all of those matters, which were succinctly summarised by Mr Williamson. 15. Ms McCosker, who appears for the Director of Public Prosecutions, accepts that this appears to be a one off incident, but says that there are other considerations that must apply in a situation such as this. She submits courts have a difficult role; they must balance all relevant factors, greater weight can be given to one or the other but Courts have to be consistent in the type of penalties they impose. 16. Courts when sentencing have to recognise that the purposes of sentencing point in different directions, and that they cannot always be reconciled. Courts also have to be consistent in the way they approach certain matters, and take guidance from decisions of other Courts, particularly those designed to give guidance. 17. The Court of Criminal Appeal in R v Loveridge [2014] NSWCCA 120, emphasised that when sentencing for crimes of violence, particularly street violence, by groups of young men, Courts are required to denounce such crimes. They affirmed that when exercising sentencing discretion judicial officers should recognise that the principle of general denunciation was one recognised method of protecting the public. Sentences must be appropriate and proportionate to the objective facts of what occurred, and harm done is one important measure. 18. A sentence is not imposed in a vacuum. In assessing what is an adequate sentence, Courts have to take into account that crimes of violence on public streets, particularly places where people gather, such as railway stations, cause considerable harm, not just to immediate victims, their friends and family but also cause disquiet and frustration amongst the public. Such crimes can break down the bonds that bind our community together; bonds of mutual respect and care for others. 19. In Wollongong people rely upon public transport. If incidents of group violence occur, particularly effectively unprovoked group violence, in such situations people fear going out at night, they fear going to places such as railway stations and availing themselves of the services provided. 20. The highest Court in New South Wales has said deterrence sentences should be imposed, yet the penalty imposed in Loveridge and other cases did not deter these young men; I do not think they thought about the consequences. The community must know that all railway stations have, as here, excellent CCTV. CCTV did not prevent this crime, but it is hoped that community and police presence will cause people to think before they acted as they did. 21. There is no rational reason, and I am sure Mr King, when he thinks about it, can think of no rational reason why he did what he did, but what he did was involve himself in a premeditated attack on another citizen in a group attack which caused not just physical harm, some of which was at the time of the Victim Impact Statement was continuing, but would have caused, as indicated, some psychological concern, and concern to the general community. 22. His plea of guilty was in my view appropriately recognised by the magistrate. The fact that he is a good candidate for rehabilitation was recognised in a finding of special circumstances. 23. I have considered the question of parity of sentences as between offenders. I have had this judgment taken out so that other judges who deal with appeals could have regard to my remarks. I have given consideration to the sentence that was imposed on the young person. Parity principles still apply in such circumstances. It is understood that an adult would have a justifiable sense of grievance if they go to gaol, but the instigator of the offence avoids gaol because they are a young person, but different considerations apply in young persons, not the least being s 6 of the Children (Criminal Proceedings) Act 1987. Further, none of the background material and the young offender's Juvenile Justice Report that was before the Children's Court Magistrate in the young person's case was tendered to me. 24. Returning briefly to the question of general deterrence, mitigating factors can go only so far in matters such as this. When he saw the recording as a citizen, I am sure the appellant thought, "what have I done, and what are the consequences, not just for me, but for others". I am sure he thought, "what would happen if something like that had happened to me, and what would I expect the Court to do in such circumstances." And most in our community, except for a few saints, would say, "what happens is - you go to gaol". 25. Sometimes the term general deterrence is used too freely, because people do not always think about consequences. But what Courts are enjoined to do is impose an appropriate sentence; appropriate to the seriousness of what was done. The term general deterrence is sometimes used interchangeably with retribution, not unjust punishment, but just punishment. Retribution is the notion that reflects a community expectation that people who commit certain crimes will suffer punishment, and that certain crimes will merit severe punishment. A proper sentence marks the Court's view of the seriousness of the crime, and is intended to let others know that retribution will fall upon them to the same extent if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at 205. 26. Here, as I have said, mitigating circumstances can go only so far. In my view, the magistrate was right, taking into account the early plea of guilty, to impose a sentence of 12 months' imprisonment. The magistrate was correct to direct that sentence not be served in the community, having, as I have, carefully considered the option of an Intensive Correction Order. 27. The only reason I differ from the learned magistrate is that I take the view that the closing of the cell door on a person is a most important matter in this; case as the fact a gaol sentence was served may have the greater deterrent impact than the length of that part of the sentence. Particularly here, when one consider the offender's history and given the danger that his spending too long in custody may do more harm than good. 28. I also take into account the restrictions which I am aware are in place with COVID, so far as visits are concerned. If COVID were ever to enter the gaols, this offender would be a candidate for early release, s 276 Crimes (Administration of Sentences) Act 1999. 29. Because of the factors I have outlined above and King's expressed remorse, regret, and my finding that his prospects for rehabilitation are strong, I will reduce the minimum period that must be spent in custody to the absolute minimum. I hope that will help avoid the risks of breaking employment, home connections, and importantly to minimise the degree of association with people of fixed criminal views with whom he is spending time. Accordingly I will make a more significant finding of special circumstances.