DPP v Bolder

Local Court of NSW|2009-11-08

PARTIES: Director of Public Prosecutions Dean Troy Bolder

LEGISLATION CITED: Crimes Act 1900 - section 35(4)

CASES CITED: R -v- Chisari [2006] NSWCCA 19 R -v- Doan (2000) 50 NSWLR 115

An agreed statement of facts is appended to the Court file. For the purpose of these remarks they may be reduced to a more succinct form.

On 12th May 2008 the offender was carrying out his work as a tow truck driver. For reasons that are not relevant to these proceedings he had cause to reverse his tow truck into a driveway. This appears to have caused some momentary inconvenience to other motorists who had to stop whilst the offender undertook his manoeuvre. Save for the transient and minor inconvenience the driving activity of the offender was neither here nor there within the ordinary vicissitudes of everyday life. The victim was one of those persons who felt the offender had inconvenienced them. In a demonstration of impatience familiar to those who use our roads he demonstrated his resentment by raising the middle finger of one of his hands in a gesture that again, is altogether too familiar and reflective of the assumed prerogative of the self appointed arbiters of what is or is not acceptable in life.

Not surprisingly, in a response that is also increasingly common to our society, and increasingly to courts in this jurisdiction, the offender rejected the indicia of disapprobation expressed by this gesture. Leaving off whatever it was he was employed to do he accelerated his tow truck and pursued the victim at speed. For part of the pursuit he was tailgating the victim's vehicle.
At the time the victim and his wife occupied the vehicle. The victim stopped his vehicle. Both parties alighted. The offender armed himself with a square shaped shovel. Words were exchanged. The offender punched the victim to the face causing cuts to his lip and tongue and knocking out two of his front teeth. The damage to the victim's teeth required remedial dental work in the form of the fitting of three crowns. The injury to his lip required 5 stitches. These injuries were obviously not enough to assuage the offender. Uttering words of intention to administer further violence he struck out at the victim with the shovel. The victim suffered two significant lacerations to the palm of his hand as a result of attempting to prevent the shovel hitting other parts of his anatomy. Those wounds required ten stitches. The Crown tendered the photographs of the injuries. They are attached to the Court file.

The victim armed himself with a wooden stake. He was struck on the body a number of times with the shovel. The victim's wife attempted to intervene. The victim pushed her away. No doubt this was due to the inherent danger of putting herself in a position proximate to an enraged person wielding a shovel. The offender eventually left the scene. Police attended and the victim was conveyed to hospital. Some 4 days later the offender attended Waverley police station as a result of a police request. A form of demand regarding the identity of the driver of the vehicle whose number plate had been provided to police was made. He said he did not know who had been driving. This was untrue. The plea

Before turning to the subjective features regarding the plea it is necessary to place the proceedings in context apropos the administration of justice and its relevance to the consequences of the plea.

The offender was charged by way of a future court attendance notice. The notice was filed in the Waverley Local Court on 28th July 2008. The proceedings were adjourned to the Downing Centre where the Office of the Director of Public Prosecutions took carriage of the prosecution. Orders were made for service of the brief and for some time the issue of whether the Director would elect to proceed by way of indictment remained undetermined. Where a Table 1 offence is brought before the Local Court Section 260 of the Criminal Procedure Act requires that it be dealt with within this jurisdiction unless the prosecution elects to proceed on indictment. On 11th December 2008 the solicitor representing the Director informed the Downing Centre Local Court that an election to proceed on indictment had been made.

The Downing Centre is a Court at which provision is made, in appropriate cases, for a Case Conference to take place. Case Conferencing is an administrative process authorised at the Downing Centre and Central Local Court and is legislatively underpinned by the Criminal Case Conferencing Trial Act 2008. In part the legislative purpose is to evaluate the effectiveness of establishing a regime for negotiation between the prosecution and the defence in matters that are amenable to the jurisdiction of the District Court and to provide a hierarchy of discounts for the entry of a plea of guilty, the timing of the plea and the jurisdiction in which a plea of guilty is entered.

Case conferencing orders were made on 15th January 2009. It was anticipated the Case Conference between the parties would be completed by the identified date of 31st March 2009. On that date by reason of the failure to comply with the orders of the Court further Case Conferencing Orders were made and the proceedings adjourned until 26th May 2009 by which date the Court expected that the conference would be completed. On that date the Court was informed that the proceedings would remain in the Local Court once a plea of guilty was entered. That plea was entered on 2nd June 2009 and the matter was adjourned for sentence on 14th July 2009.

As a matter brought to plea within the Case Conferencing environment certain statutory consequences flow. Section 17 of the Criminal Case Conferencing Trial Act 2008 provides, inter alia: "(1) If an offender pleaded guilty to an offence at any time before being committed for sentence the sentencing court must allow a discount for the guilty plea calculated as follows:"
The provision then goes on to identify in relation to each sentencing option, a statutory discount of 25% relative to each sentencing option. "Sentencing Court" is defined in Section 3 of the Act to mean "the court imposing a penalty in respect of the offence…" This definition together with the introductory words within Section 17(1) makes it clear that the Local Court is a sentencing court for the purpose of the Act. Having entered a plea of guilty prior to committal the offender is consequently entitled in my view by reason of the combined effect of Section 22 of the Crimes (Sentencing Procedure) Act 1999 and Section 17(1) to a statutory discount of 25% on the appropriate sentence. Before turning to that determination it is necessary to consider the provisions of Section 21A of the Crimes (Sentencing Procedure) Act 1999. Aggravating features

The Director submits that the offence is aggravated by the use of a weapon, the injuries are not minor and that a custodial sentence is appropriate.

I agree that the offence is aggravated by reason of Section 21A(2)(c). Although the use of violence is a concomitant of the charge the use of a weapon is not an element of the offence. R -v- Chisari [2006] NSWCCA 19. The offender armed himself with the shovel from the very beginning and used it to effect, causing wounds to the victim's hands and bruising to other parts of his body. I do not consider that the other provisions within Section 21A(2) have application to the factual circumstances of these proceedings. Mitigating factors

At the time of the offence the offender was a 25-year-old man with no previous involvement in the criminal justice process. He is entitled to the benefit of his previous good conduct by virtue of Section 21A(3)(f). Absent any evidence to the contrary the Court also accepts that he is unlikely to re-offend and has good prospects of rehabilitation. Although somewhat tardy, I also accept that the offender is remorseful for his conduct. The benefit of his plea of guilty has already been addressed. Each of the aforementioned circumstances operates to mitigate the penalty.

The Court has also had regard to those matters set out in the Pre Sentence report wherein the offender is identified as a person who has, despite the disadvantages of a difficult upbringing managed to establish a measure of independence within society. In the course of sentencing submissions the Court was provided with a detailed clinical psychological assessment report prepared by Professor Hayes.

Both reports describe the offender as having an intellectual disability and to be significantly impaired in the area of cognitive skills and adaptive behaviour. Underlying issues to do with Attention Deficit Disorder and the possibility of schizophrenia and problems with impulse control are also identified.

Professor Hayes ventures the opinion that the offender would benefit from assessment by a mental health team with a view to possible treatment both in the immediate term and on a long-term basis. Objective seriousness of the Offence

Right-minded members of the community would properly regard the offender's conduct as unacceptable. Whatever one might think of the victim's inappropriate display of discourtesy through the gesture nothing warranted the offender pursuing him and then assaulting him firstly with his fists and then with a weapon. No civilized society can tolerate this type of conduct. It cannot be said that provocation within the ill mannered gesture by the victim was of such a sufficiency as to either properly explain or justify in any part, the subsequent violence of the offender. The objective seriousness of the offender's conduct and the subsequent injuries and wounds occasioned by the conduct places it towards the middle range of objective seriousness for this type of offence.

As was made clear in R -v- Doan (2000) 50 NSWLR 115 this does not mean the middle range of objective seriousness within the jurisdictional limitations imposed on matters dealt with before the Local Court. It means within the middle range by reference to the maximum penalty for this offence. As identified earlier, the maximum penalty for this offence is 7 years imprisonment.

The Director submits that a term of imprisonment is warranted. The offender's legal representative concedes that it is difficult to argue against such an outcome. I acknowledge the provisions of Section 5 of the Act and the admonition that a sentence of imprisonment should only be imposed as the option of last resort. Taking into account the conduct and the purposes of sentencing set out in section 3A of the Act, particularly the need for general deterrence and the impact of the conduct on the victim I come to the view that no other sentence adequately addresses the offender's conduct.

After taking into account the matters set out in section 23A of the Act and the subjective factors relevant to the offender I come to the view the appropriate term of imprisonment is two years. The 25% discount for the utilitarian value of the plea is to be applied to that period. The offender is consequently convicted and sentenced to imprisonment for a period of 18 months. Having identified both the nature of the sentence and its length I turn to other factors placed before the Court. These factors are relevant to the question of hardship

Documentation tendered to the court establishes that the offender's mother suffers from serious health issues. According to a letter from a Dr. Dassos she has had multiple hospitalisations for life threatening infections of pneumonia, cellulitis, osteomyelitis, surgical amputations to her feet and chemotherapy for illness. By reason of her poor health her mobility is poor, she suffers from rheumatoid arthritis, ingests multiple amounts of medication on a daily basis. As well as receiving attention from community health professionals she relies on the offender for every day living assistance.

Consequences to third parties are not matters that operate to establish the required standard of hardship unless such consequences can be categorized as extraordinary. The law is well settled that it is an accepted and unavoidable consequence of imprisonment that an offender's family will suffer. Were it not for the severity of the impairment of the health of the offender's mother and the accepted need for his contribution to her capacity to function within the community I could not come to the view that the impact of imprisonment would fall into the category of exceptional.

Whilst I note the intentions of the offender to eventually move away from home I also note that he has remained at home caring for his mother on a regular basis. Such commitment has to be acknowledged and based on its existence I acknowledge its likely continuance. I find that the hardship to his mother that would arise by reason of full time incarceration is such that it is appropriate to regard it as exceptional. Balancing that finding against what I believe to be the appropriate sentence for this offence I come to the view that the interests of justice can be met by ordering that the term of imprisonment be served by way of periodic detention.

The formal order of the Court is that the offender be sentenced to a period of imprisonment of eighteen months to be served by way of Periodic Detention. The sentence is to consist of a minium period of 12 months with an additional period of 6 months on parole. Release on parole is to be subject to supervision of the Probation and Parole Service and to include participation by the offender in an appropriate Anger Management Programme.

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.

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Judgment (28 paragraphs)

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Cases Cited (2)