R v Assaf [2022] NSWDC 466

R v Assaf [2022] NSWDC 466

Assaf's offending was slightly below the midrange of objective seriousness but remained serious because it involved a violent physical attack in a locked vehicle, causing a significant facial wound, while he was on conditional bail. Although he initiated the antagonism, the agreed facts supported a finding that his physical involvement was not materially greater than Daher's for parity purposes. Balancing parity, the 5% guilty plea discount, conditional liberty, limited remorse, youth, rehabilitation prospects, custody conditions during COVID, special circumstances, and pre-sentence custody, a sentence of 41 months imprisonment with a 22 month non-parole period was appropriate.

Jurisdiction
Australia
Judgment Date
25 February 2022
Procedural Posture
Criminal Sentence for Reckless Wounding in Company Contrary to S 35(3) of the Crimes Act 1900 / Sentencing After Plea of Guilty
Outcome
The offender was convicted and sentenced to imprisonment for 41 months with a non-parole period of 22 months, with special circumstances found.
Legal Topics
['reckless Wounding in Company' 'joint Criminal Enterprise' 'plea of Guilty' 'parity Between Co Offenders' 'conditional Liberty' 'special Circumstances' 'pre Sentence Custody' 'remorse' 'objective Seriousness']
['criminal Law' 'sentencing'] ['reckless Wounding in Company' 'joint Criminal Enterprise' 'plea of Guilty' 'parity Between Co Offenders' 'conditional Liberty' 'special Circumstances' 'pre Sentence Custody' 'remorse' 'objective Seriousness']

Case Brief

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Procedural Posture

Criminal Sentence for Reckless Wounding in Company Contrary to S 35(3) of the Crimes Act 1900 / Sentencing After Plea of Guilty

Legal Issues

  1. 1 ['What sentence should be imposed for reckless wounding in company committed as part of an extended joint criminal enterprise.' "How the offender's culpability and objective seriousness compared with co-offender Daher for parity purposes." 'Whether the offender should receive a 5% discount for the utilitarian value of the guilty plea.' 'Whether time in custody should be taken into account by backdating commencement of the sentence.' 'Whether special circumstances should be found because of rehabilitation and drug counselling needs.' 'How aggravating and mitigating factors, including conditional bail, youth, remorse, COVID custody conditions and rehabilitation prospects, should affect sentence.']

Ratio Decidendi

Assaf's offending was slightly below the midrange of objective seriousness but remained serious because it involved a violent physical attack in a locked vehicle, causing a significant facial wound, while he was on conditional bail. Although he initiated the antagonism, the agreed facts supported a finding that his physical involvement was not materially greater than Daher's for parity purposes. Balancing parity, the 5% guilty plea discount, conditional liberty, limited remorse, youth, rehabilitation prospects, custody conditions during COVID, special circumstances, and pre-sentence custody, a sentence of 41 months imprisonment with a 22 month non-parole period was appropriate.

Court Disposition

The offender was convicted and sentenced to imprisonment for 41 months with a non-parole period of 22 months, with special circumstances found.

Orders

  • ['The offender is convicted of the offence.' 'Taking into account a 5% discount I impose a sentence of imprisonment of 41 months commencing 25 April 2021.' 'I impose a non-parole period of 22 months expiring on 24 February 2023.' 'I find special circumstances.' 'Both s 166 matters will be dealt with pursuant to s...