Police v Barlow

The facts 4At about 4.10am on 4 July 2013 two young men, Mr Tatana and Mr Campo, were feigning a fist fight between themselves. There was no violence in a real sense. Perhaps they thought it was amusing, who would know. After ceasing their self-entertainment they walked further up Bayswater Road. Two associates of the offender named Hall and Bateman approached them. An argument ensued. The offender at this point was not involved. Security staff separated them. Messrs Tatana and Campo went and sat on a stone wall. Words of "abuse" were exchanged across what is one of the main streets of Kings Cross. What happened next reflects the environment that feeds into the rising levels of concern within the wider community. 5Hall and a person named King ran across the road and began punching Mr Campo. Mr Campo endeavoured to back away. He was unsuccessful. During the course of his retreat the offender made a deliberate choice to enter the fray. He ran up to Mr Campo and began punching him to the head with a closed fist. According to the facts a person named Bateman became active. He knocked Mr Tatana to the ground in the middle of lane 1 of Darlinghurst Road and continued to punch him. 6The offender left off his attack on Mr Campo and ran to where Mr Tatana was lying on the roadway. He began to punch and kick him. Witnesses described the offender as continuing to kick and punch Mr Tatana for 30-60 seconds. CCTV footage is said to show him landing 5-6 strikes to the chest and face of Mr Tatana. 7It is important to again note that Mr Tatana was at this time, lying on the road. 8Mr Campo ran to his friend's assistance and helped him to his feet. The offender and his associates continued to behave aggressively and raise their fists. They again approached the victims who were by this stage, outnumbered as they were, backing away. Hall threw two punches at Mr Campo. The defendant continued to approach Mr Campo even though Mr Campo was clearly in retreat and no threat. Another of the offender's associates, named King, approached Mr Tatana from the side. He struck Mr Tatana with his right fist, knocking him to the ground. Mr Tatana was rendered unconscious due to the force of the blow and the fact that his head struck the hard road surface. He was rendered senseless for a short period of time. The offender remained in the area continuing to abuse and threaten Mr Campo and Mr Tatana as well as the bystanders. 9One or more witnesses contacted the police; others attempted to rescue the victims. The inference of concern for the safety and wellbeing of Mr Tatana and Mr Campo is compelling, so too is the heightened image of violence being out of control, to the point of impelling those not involved to act. Fortunately the police arrived in short order. The offender's details were taken but as the nature of the conduct was unclear to police he was allowed to leave. The incident occupied some 4-5 minutes of time. From the experience of the Court this is, in the context of violent conduct, a longer than normal period of time. Little wonder that, according to the agreed statement of facts, members of the community concerned for the safety of Mr Campo and Mr Tatana, attempted to intervene and to summon the assistance of police. 10Mr Tatana was taken to St Vincent's Hospital by ambulance. Additional to being rendered unconscious he suffered facial injuries consisting of bruising and lacerations to his face, legs and abdomen. His nose was broken. There were lumps on his head consistent with the delivery of considerable force, whether by reason of the punches, kicks or contact with the hard road surface is not made clear. A combination of all three is a reasonable inference. Mr Tatana's injuries were sufficiently severe to incapacitate him from his work for several days. 11Mr Campo had a swollen face and a laceration to his lip of sufficient severity to warrant the insertion of six stitches. There is no mention in the facts of the intermediate psychological consequences for the victims. Life experience informs the Court both victims will retain the memory of this violent, sustained and cowardly onslaught for a long time. 12This was not a minor course of conduct. It is clear the offender and his associates were the aggressors. It is clear the rapid escalation of violence involved all four of them. It is clear that Messrs Tatana and Campo, other than in relation to an exchange of words, wanted no part of a physical altercation. It is clear they were given no choice or opportunity to make good their escape. It is clear this episode of the offence of affray is above the middle range category of seriousness for the offence of affray.

Sentencing for affray 13As the Court said in Stevens v R [2007] NSWCCA 152 at [25]: "In determining an appropriate sentence for Affray an offender's conduct is to be considered in the context of the conduct of a co-offender. The level of violence used and the scale of the affray are relevant. An offender however may only be sentenced for that part of his conduct and the conduct of the co-offender(s) which give rise to the offence of affray and not that conduct that resulted in some other offence being committed by him or another co offender." 14Outside the charge of affray I am not aware of any other individual offence being preferred against or established against any of the other participants in this outrageous episode. 15The observations in Stevens reflect the provisions of section 93C(2) of the Crimes Act 1900, which states that: "If 2 or more persons threaten or use unlawful violence it is the conduct of them taken together that must be considered for the purpose of subsection (1)." Section 93C(1) is the provision that fixes the maximum penalty for the offence of affray at 10 years imprisonment. 16In plain and simple language for the benefit of the offender - he is being sentenced not just for his conduct towards the two victims, but also for the conduct of his associates, Hall, Bateman and King. The law regards the violence perpetrated by these three persons to be part of the violence perpetrated by the defendant on his own part and for the entirety of the conduct of all to be viewed as the global circumstances for which the offender must accept personal responsibility. It matters not that it was King who rendered Mr Tatana unconscious. It matters not that one of his associates struck the blow or blows that resulted in a need for six stitches to the head of Mr Campo. It matters not that the breaking of Mr Tatana's nose was caused by the violence of someone else other than the offender. 17The essence of affray is that there is collective responsibility on the guilty for all of the conduct and consequences that go to making up the egregious aspect of the offence in its entirety. Should it fall to a court to sentence Hall, King and Bateman at a point in time, this offender's conduct will be considered as representing part of the conduct for which they, on an individual basis, are to be punished. 18Before turning to the objective and subjective factors it is relevant to note that the offence of affray in Stevens was committed in 2005. The offender entered a plea of guilty in 2006 and was sentenced in November 2006 to imprisonment for a period of 18 months with a non-parole period of 12 months. I make this observation because of the change in the sentencing maximum for this offence between 2005 and today. At the end of 2005 the penalty for affray was raised from 5 years imprisonment to 10 years imprisonment. 19The consequence of increased penalties was considered in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [52] wherein the Court said: "Traditionally any intention on the part of the legislature that the offence should attract a heavier sentence has been manifested by an increase in the statutory maximum. The Courts are expected to recognize and reflect that intention when sentencing offenders for offences after such amendments." 20Since R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115 it is well settled law that even though the sentencing powers of a Local Court are constrained by statute to a maximum sentence of two years for an offence of this nature, the Court must have regard to the maximum sentence provided by Parliament. 21The offence of affray is one that has become commonplace within the Local Court in recent years. Incidents of violent and threatening conduct predominantly but not exclusively involving young men, at night, invariably fuelled by alcohol and/or drugs are part of the landscape in areas where large numbers of people gather ostensibly for social interaction proximate to locations available for the consumption of alcohol and for entertainment. Such offences, as was said in Pattalis v R [2013] NSWCCA 171 at [25]: "... are a cause for grave disquiet and the community is understandably angry and frustrated at their occurrence. It is now notorious that a single punch can not only cause catastrophic injuries but also death. For offences of this kind the community has the rightful expectation that judicial officers will impose meaningful penalties." 22Observations of superior courts such as these cannot be, and are not, ignored by courts of inferior jurisdiction such as the Local Court. Acknowledgment of the tenor of observations made in relation to "meaningful penalties" does not mean however, that the range of sentencing options available to the Court become so truncated that only full time imprisonment is captured by the term. Such will more often than not be the response. Focus solely on condign punishment of one type however is not what is meant by such observations.

Section 21A(2) factors 23The conduct in this matter is to be considered firstly from the objective perspective of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. This provision requires a court to take into account particular matters of aggravation where they are relevant to the charge and the factual circumstances. At first blush attention would be drawn to sub paragraphs (b), (e), (g) and (m) dealing with use of violence, in company, causing substantial harm and involving multiple victims. The offence of affray however, involves all of these aspects as part of the offence. So much is made clear by the definition of violence in s 93A. Double counting aggravating circumstances that are an intrinsic part of the offence itself leads to error. The closing words of s 21A(2) make that clear - "The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence".

Section 21A(3) factors 24The offender is 21 years of age. He was 20 at the time of the offence. He is of aboriginal heritage, a claim accepted by the Aboriginal Legal Service following investigation by its field officers. He has two episodes of criminal offending recorded on his adult criminal antecedents. Judging by the penalties imposed they may be construed as having been relatively minor in nature. They did not involve acts of violence. Although the offender does not come before the Court as a person of prior good character it cannot be said his record discounts the likelihood of rehabilitation. 25According to the pre sentence report prepared by Community Corrections the offender resides with his mother. He experienced a difficult upbringing due to ongoing domestic issues between his parents during his formative years resulting in a breakdown in the relationship and the departure by the father from the family home when the offender was aged 7. The offender no longer has contact with his father who is said to have long-term substance abuse issues. On two bases his father could not be described as a role model. Despite the home environment in his childhood the offender was raised by a supportive mother. The reference from Fiona Greenwood on behalf of the offender suggests he has benefited greatly from his mother's commitment to him. One can only imagine her disappointment in relation to his behaviour and the soon to be consequences from the night in question. 26Educated to year 10 the offender left school but does not appear to have fallen into the aimlessness that so many from like backgrounds experience. The pre sentence report notes the award of a Diploma in Business and certificate in warehousing awarded through studies within the TAFE system. He worked in warehousing for some 18 months and at the time of the report, had been working as a labourer for some 3 months until the commission of the offence before the Court. Regrettably, he is now unemployed. 27The offender is reportedly familiar with the excessive use of alcohol. This behaviour is compounded by the ongoing use of cannabis and ecstasy. He lacks insight into the intrinsic criminality of this type of drug taking. 28According to the report, the offender asserts the facts are exaggerated and that he had been spat upon by one of the victims. Given the facts are acknowledged to represent an accurate narrative of the CCTV the offender's attempt to ameliorate the seriousness of his conduct and blame the victims is disappointing. I remind the offender that the agreed facts have him running across the road to join in the violence towards the victims, after two of his associates had launched their attack. 29The suggestion that he "snapped and lost it" as asserted in the pre sentence report is rejected. He cannot be punished more harshly for a lack of established contrition and remorse however the attempts to minimise his culpability undermine the capacity of the Court to accept there has been the necessary level of contrition and remorse such that it would further mitigate the penalty. 30It is important in the sentencing of the offender to have regard to the observations of the High Court in Bugmy v R [2013] HCA 37 at [43] to assess whether there are circumstances in the upbringing of the offender that may explain and where appropriate, mitigate the level of moral culpability in an offender to the point where the sentence to be imposed ought be mitigated. 31The High Court observed, inter alia, that: "The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise a person's capacity to mature and learn from experience. It is a feature of the persons make up and remains relevant to the determination of the appropriate sentence.... An offender's exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offenders moral culpability for the inability to control that impulse may be substantially reduced." 32The Court accepts the offender was exposed during his early childhood to his father manifesting substance abuse and a level of domestic violence. Such life experiences are not confined to members of the aboriginal community. The lack of a male authority presence and the early impressions formed by exposure in childhood to domestic violence and constant recourse to alcohol are well known as risk factors that can contribute towards the development of increased aggression, antisocial behaviour and increased likelihood of substance abuse to name but a few. Without further information it is problematic whether in these proceedings the Court can reasonably come to the conclusion the offender's conduct is sufficiently affected by events in his family life during his formative years that they operate to mitigate his conduct and thus the penalty.

The Sentence 33On the last occasion this matter was before the Court, and having turned my mind to both the legislative provisions contained within s 5 of the Sentencing Act and the process of reasoning set out in Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 and R v Zamagias [2002] NSWCCA 17, I indicated that the offending behaviour warranted no less a sentence than one of imprisonment. Ms Carpenter of the Aboriginal Segal Service raised no issue with this reality, indeed in her most able advocacy on behalf of the offender she conceded the threshold of imprisonment had been crossed. It was Ms Carpenter's submission that allowing for the objective seriousness of both the offence and the offending, the purposes of sentencing set out in s 3A of the Sentencing Act could nonetheless be met through the use of an Intensive Correction Order. 34An Intensive Correction Order is an alternative to the traditional form of imprisonment. That it is a custodial sentence is implicit from the terms of s 7 of the Sentencing Act. As was observed in R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 at [108]: "It should be kept in mind that an ICO is a substantial punishment to be utilised in an appropriate case: Whelan v R [2012] NSWCCA 147 at [120]. However as with all sentencing options which do not involve immediate incarceration, it may also reflect a significant degree of leniency." The observation in Whelan was made that such an option - "... is properly available... where her Honour came to the view that the appellant's offending was at the lower end of moral culpability." 35It is not possible in these proceedings to view the moral culpability of the offender as low. It was his decision to join in what was already a savage attack, escalating the risk to the victims. The degree of horror and concern implicit in the attempts by onlookers to intervene both physically and through seeking the assistance of police, even expressed in narrative form within the statement of facts, paints a disturbing picture. All of this, together with his confrontation with onlookers in a state of heightened aggression through his threatening demeanour as a sign of his willingness to widen an already abhorrent episode of ongoing violence, places this offender's moral culpability, as it does with that of his associates, well above the lower end of seriousness. 36This does not necessarily preclude the Court from favourably considering the submissions by the offender's legal representative in relation to an Intensive Correction Order however, it does suggest that much caution ought be exercised in the balancing of competing interests in pursuit of the purposes of sentencing set out in s 3A of the Sentencing Act. 37It is unarguable that in an instance such as this and against a background of alcohol fuelled violence within the community that general deterrence is of fundamental importance. The impact of the crime on all of the victims, Mr Campo, Mr Tatana and the onlookers is significant. Conduct of such sustained violence and menace must receive adequate punishment otherwise a poor message is sent to the community. 38In the competing interests between the objective seriousness of the conduct within the commission of the offence, recognising the harm done to the victims and the subjective features relative to the offender, I come to the conclusion that exercising my discretion to consider an alternative to full time imprisonment in the form of an Intensive Correction Order is one that is not appropriate. Some of the rehabilitative aspects contained within an Intensive Correction Order are just as available within a structured parole period. 39The offending is above the middle range level of seriousness for this category of serious offence. It is the type of conduct that is prevalent within the community, particularly in the inner city of Sydney. It represents the type of conduct that is viewed with justifiable revulsion by the wider community. Courts have a responsibility within the range of their sentencing powers to determine a sentence that meets community expectations. 40I repeat what I said earlier; the maximum sentence for this offence is 10 years imprisonment. Although the Local Court is constrained by the decision of government to limit its sentencing powers to 2 years imprisonment the Court, whether by reason of the jurisdictional limitation or the constant exposure to offences of this nature, cannot allow itself to become beguiled by the outward perception that offences dealt with in the Local Court are of a relatively minor nature. No objective assessment of the offending in this matter could possibly conclude that it is of a minor nature. 41It is the view of the Court that, after taking into account the objective seriousness of the conduct within the commission of the offence, the impact of the crime and the subjective features of the offender that operate to mitigate the ultimate penalty, the appropriate sentence touches upon the jurisdictional maximum of the Local Court. After applying the nominated discount for the utilitarian value of the manner in which the proceedings were resolved the appropriate length of the sentence will be a period of 20 months. 42Having turned my mind to the length of the sentence I now turn my mind as to whether special circumstances exist in this matter such as to persuade the Court pursuant to s 44 of the Sentencing Act to depart from the standard ratio between the sentence and the non-parole period. 43The offender is young, there is a clear need for rehabilitation particularly in relation to his ongoing issues with substance abuse in the form of drugs and the excessive consumption of alcohol. R v Merrin [2007] NSWCCA 255; (2007) 174 A Crim R 100 at [55] provides support for the application of these two circumstances to a finding of special circumstances. I find they are established. 44The formal orders of the Court are as follows: The offender is convicted and sentenced to imprisonment for a minimum period of 9 months. Taking into account one day spent in custody following his arrest for failing to appear, the sentence is to commence on and from 13 February 2014. The offender is to be eligible for parole on and from 12 November 2014. The balance of his sentence is 11 months. It is a condition of his release on parole he is to serve the remaining 11 months of his sentence under the supervision of the Probation and Parole Service and is to be subject to participation in and successful completion of Drug and Alcohol rehabilitation programmes as determined by Probation and Parole. Judge Graeme Henson Chief Magistrate 14 February 2014

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. Decision last updated: 14 February 2014