R v Plunkett [2021] NSWDC 41

District Court New South Wales

Medium Neutral Citation: R v Plunkett [2021] NSWDC 41 Hearing dates: 01 March 2021 Date of orders: 01 March 2021 Decision date: 01 March 2021 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 28 and 29. Catchwords: CRIMINAL LAW – sentencing – common assault Legislation Cited: Crimes Act 1900 (NSW) s 61 Crimes (Administration of Sentences) Regulation 2014 cl 189D Criminal Procedure Act 1986 (NSW) s 157 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 25D, 99 Cases Cited: R v Abboud [2005] NSWCCA 251 R v Tran [2005] NSWCCA 35 Texts Cited: Nil Category: Sentence Parties: Director of Public Prosecutions (NSW) Mr S Plunkett (Offender) Representation: Counsel: Mr B Green for the offender Solicitor Advocate for the Director of Public Prosecutions (NSW)

Solicitors: Mr G Meatin for the offender File Number(s): 2019/391713 Publication restriction: Nil

SENTENCING REMARKS 1. 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. 2. 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).

The facts 1. 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. 2. The assault occurred in the context of a fight, involving the offender and the victim, and other persons. 3. 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. 4. 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. 5. 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. 6. The victim had been drinking through the course of the evening. 7. 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'). 8. 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]). 9. Further, the mobile phone footage indicated that the assault occurred in a matter of seconds. 10. 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. 11. I find that the offending occurred was at the mid-range for an offence of this kind. 12. 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.