Police v Scott Michael WIDDISON

Local Court of NSW|2011-08-23

Remarks on Sentence 1The offender is charged with the following: "(That he) on 17 February 2011 at Corowa in the State of New South Wales did recklessly cause grievous bodily harm to Andrew Vaughan"; contrary to section 35(2) of the Crimes Act 1900. 2A plea of not guilty was entered at the first return date at Corowa Local Court on 23 March 2011, but the matter was never listed for hearing, and Counsel for the offender indicated a plea of guilty on 22 June 2011. In these circumstances, noting the serious nature of the charge I will proceed on the basis that the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.

Facts 3As is customary in the Local Court the matter proceeded by way of tender of a Police Fact Sheet to which there was no apparent objection. I will proceed to sentence on the basis that the contents of that Police Fact Sheet are agreed facts. The fact sheet remains with the papers, but I will summarise those facts. 4On the afternoon of 17 February 2011 the victim, Andrew Vaughan and the offender attended to Newmarket Hotel in Corowa to attend a farewell function for a work colleague. Both men worked at the "Rivalea" Piggery at Corowa. After apparently spending some time at the Newmarket Hotel they moved to the Australia Hotel, then the Royal Hotel in Sanger Street, Corowa. Both consumed an amount of alcohol during the course of the evening. 5At about 10.40pm the victim Vaughan together with a Mr Ross Ovenden left the Royal Hotel and walked up Sanger Street. They sighted the offender outside the Commonwealth Bank walking towards them. The men joined up and an argument ensued. Mr Ovenden placed himself between the two men in an attempt to avoid any physical contact. The offender said, "I could knock you flat on you arse". The victim replied, "I don't want to fight you Scotty" and walked back towards the Royal Hotel. 6The offender followed closely behind, and the two of them traded insults. At a point in a driveway outside the Australia Hotel, the offender moved around to the front of the victim. The offender stepped forward towards the victim and with a closed right fist punched the victim, the punch connecting to the left side of the victim's face. The victim immediately fell backwards and his head impacted heavily with the concrete portion of the footpath. A large "crack" was heard as the victim's head impacted with the concrete. 7The victim remained motionless and unconscious and was bleeding heavily from a laceration that was at the base of his skull. The victim was bleeding heavily and made a loud "snoring" type noise. The victim vomited a quantity of blood. 8A 000 call was made and the victim taken to Albury Base Hospital, and later transferred to Royal Melbourne Hospital in a critical condition. 9A number of scans were taken at the Albury Base Hospital. Tendered to the court on 12 August 2011 was a report by Dr Morokoff, the treating Neurosurgeon. That report sets out that the victim had a Glasgow Coma Score of 3/15, with 15 being normal, at the time the ambulance first attended. A CT Brain scan revealed that there was a small amount of subarachnoid blood, a fracture of the right occipital bone, and a comminuted fracture of the nasal bone. Under the heading "diagnosis" the report sets out "subarachnoid haemorrhage, base of skull fracture, nasal fracture, aspiration in the lung (pneumonia)". 10The report from Dr Morokoff goes on to say that the victim was transferred to the Intensive Care Unit, where the intracranial pressure imposed on 3 March 2011. He was transferred back to Albury Base Hospital for inpatient rehabilitation. 11So far as the injuries are concerned, the report of Dr Morokoff is supplemented by a report from Dr Love, the victim's treating General Practitioner in Corowa. That report dated 11 August 2011 recites: I have been involved in Mr. Vaughan's care since 21st March 2011 and I had not actually met him prior to his injuries. Initially he had significant problems with his health with physical symptoms of persistent headaches, dizziness and drowsiness. This was associated with significant depression which required treatment. He has improved since this time but he is in no way back to what I would consider his pre-injury state. He is still unfit to work mainly because he has problems of ongoing dizziness and headaches. He was reviewed by the Rehabilitation Unit on 20th July 2011 and at that time he had ongoing problems with his vision and significant co-ordination issues. The advice at that time that he was not presently fit to drive a car. I have since referred him to the Eye Clinic in Albury/Wodonga for him to be further assessed with respect to his suitability for driving. It appears most of his dizziness is related to inner ear pathology which I am sure is a consequence of his significant head injury. In summary, while Mr. Vaughan has shown significant improvement since I first met him in March he does have ongoing disabilities and is currently unable to work let alone drive a motor vehicle. 12Therefore, the injuries sustained were serious, and with the subarachnoid haemorrhage were life-threatening. The victim was in the intensive care unit for some time, and there are ongoing difficulties. 13The offender was spoken to by police later in the day of the incident and was formally interviewed. He admitted to punching the victim once to the face with a closed fist and told police that the victim, "fell like a tree", and he heard a cracking noise. The offender maintained that the victim was annoying him, getting in his face and threatened to punch the victim if he said certain things. The victim repeated the comment and that led to the punch. Mr. Blackman, Counsel for the offender, indicated when specifically asked that he was not relying on provocation from the victim. 14The offender told police that he had consumed about 20 pots (middies) of beer, he was affected by liquor, but he could remember the events. He told police, "You never forget something like that".

Maximum Penalty 15The maximum penalty for an offence contrary to s 35(2) of the Crimes Act 1900 is a sentence of ten years imprisonment. The table following section 54D of the Crimes (Sentencing Procedure) Act 1999 provides that for an offence such as this if dealt with on Indictment, there is a standard non-parole period of 4 years. As I am passing sentence in the Local Court the only relevance of the standard non parole period is that it is an indication enough of how seriously the Parliament considers such an offence to be. 16This is a matter to which the principles enunciated in R v Doan (2000) 50 NSWLR 115 apply. In that decision Grove J (Spigelman CJ and Kirby J agreeing) said at [35]: The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted must be rejected. As must also be rejected the corollary that a sentence of two years imprisonment should be reserved for a 'worst case'. 17I note that the decision in Doan was affirmed and followed by the Court of Criminal Appeal, sitting a Bench of five in Attorney General's Reference Pursuant to s. 37 of the Crimes (Sentencing Procedure) Act 1999 No. 2 of 2002 (Guideline on Assault Police) (2002) 137 A Crim R 196. 18In passing I note the decision of R v Way (2004) 60 NSWLR 168, which is authority for the proposition that on a plea of guilty if the matter were dealt with on indictment the standard non-parole period is a guidepost to which the court should have reference in passing sentence. 19Given the nature of the injuries and the fact that the offence carries a standard non-parole period the community would be well justified in inquiring why this matter was not dealt with on indictment. The prosecuting authorities apparently were of the view that the matter could be dealt with by the Local Court. Although ultimately I am passing a sentence that is just within the Local Court's jurisdictional limit, the point from which I started exceeds that limit. The authorities, and indeed the community, must understand that matters such as this if left in the Local Court are subject to the jurisdictional constraints on the Local Court.

Assessment of the Criminality 20Before going specifically to assess the criminality, it is important to note that the offence on which I am passing sentence is a "result" offence. In McCullough v R [2009] NSWCCA 94, Howie J (McClellan CJ at CL, Simpson J agreeing) said at [37]: Malicious wounding is principally a result offence. Generally speaking the seriousness of the offence will significantly depend upon the seriousness of the wounding. That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wounding are irrelevant. The same can be said for an offence involving the infliction of grievous bodily harm: the more serious the harm inflicted the more serious the offence: see R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [27]. 21In R v Mitchell and Gallagher (2007) 177 A Crim R 94; [2007] NSWCCA 296, Howie J said inter alia at [27]: The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence. 22Accordingly, the offender is to be sentenced for the result of that one punch. This matter speaks eloquently of a point I make repeatedly in the Albury Local Court that the act of punching a person to the face is a potentially very dangerous and even potentially lethal act. 23Care is needed in expressing the assessment of the criminality. The offence was committed by one punch, but the injuries were serious and the victim continues to suffer, and on the medical report from Dr Love I am satisfied beyond reasonable doubt will continue to suffer those difficulties for some time. I assess the matter as being towards the lower end of mid-range of objective seriousness of matters of this sort whether finalised in this Court or a higher Court.

Matters of General Principle 24There are very significant issues of general deterrence in this matter. I have presided at the Albury Local Court and indeed the Corowa Local Court for over three and a half years. Rarely does a week pass in the area without there being some incident involving drunken violence in the central business district of Albury. Corowa is less than 60 kilometres away. 25The Court of Criminal Appeal in a number of judgments has held that there are significant issues of general deterrence in matters involving violence on the streets where the offender is young and affected by alcohol or other mind-altering substances. See for example R v Mitchell & Gallagher (2007) 177 A Crim R 94; [2007] NSWCCA 296 at [29]; R v Carroll [2008] NSWCCA 218 per McClellan CJ at CL, Hislop J agreeing, Simpson J dissenting at [21] and McKenna v R [2007] NSWCCA 113 at [2] per McClellan CJ at CL. The cases also address the issue of community concern over such matters. 26The decisions to which I have referred involve criminality greater than what I am dealing with in the matter presently under consideration, as is to be expected given that the Court of Criminal Appeal was deciding appeals from matters dealt with on Indictment. However, clearly, as a matter of general principle, persons who commit indiscriminate acts of violence resulting in serious injury that produces ongoing sequelae also deserve punishment that includes a significant emphasis upon general deterrence. 27It is not suggested that the victim in any provoked the offender. In the circumstances of this case I am firmly of the view that the violence was indiscriminate. By consent part of the answer to question 32 of the ERISP conducted with the offender was tendered. On the version of events as set out in the answer there was a verbal exchange between the victim and the offender, but certainly nothing amounting to provocation. 28In the matter presently under consideration the offender had consumed in the vicinity of 20 middies of beer. That indicates a substantial tolerance to alcohol. Intoxication is not usually a mitigating factor, and this matter is no exception to that general rule. In Bourke v R [2010] NSWCCA 22 McClellan CJ at CL (Price and RA Hulme JJ agreeing) said at [26] and [28]: There was evidence before the sentencing judge which clearly indicated that it was probable that the applicant's intake of alcohol was the most significant cause of the applicant's behaviour. Intoxication, whether by alcohol or drugs may explain an offence but will ordinarily not mitigate the penalty save where the intoxication is the result of an addiction and the original addiction did not involve a free choice. An offender cannot expect a reduction in sentence merely because they have committed an offence while intoxicated: R v Rosenberger (1994) 76 A Crim R 1. ... 28 When a condition is self-induced it is not generally accepted as mitigating an offence. In these cases an offender is usually regarded as morally responsible for his condition at the time of the offence. Self induced intoxication or addiction at an age of rational choice involves moral culpability for the predictable consequences of that choice. R v Henry (1999) 46 NSWLR 346 at 383. 29Mr Blackman in the course of his very helpful and comprehensive submissions put the principle of parsimony. That principle forms no part of the sentencing law in New South Wales. In the decision of Blundell v R (2008) 70 NSWLR 660; [2008] NSWCCA 63, Simpson J (with Grove J specifically agreeing on this issue) after reviewing a number of authorities on the issue said at [47]: I do not read these judgments as containing or endorsing a proposition that mandates that the minimum sentence that reflects the objective and subjective features of a case and satisfies the purposes of sentencing must be that which is imposed. That is inconsistent with the notion of a range of sentences, and the discretions properly open to sentencing judges. I do not accept that "the principle of parsimony", at least as, on one construction of DB; DNN , it appears to have been interpreted by Adams J, is part of the sentencing law of NSW. In Kelly v The Queen [2007] NSWCCA 357 at [30] Basten JA rejected that construction of the judgment in DB; DNN . Adams J, who, coincidentally, was also a member of that Bench, agreed with Basten JA. 30The charge to which the offender has pleaded guilty is Recklessly Inflict Grievous Bodily Harm. The fact that the victim suffered significant injuries is not an aggravating feature. Given that the offence is a "result" offence, the court uses the extent of the injuries as an important (although not the only) factor in the assessment of the objective seriousness of the criminality involved. See for example Nowak v R [2008] NSWCCA 89.

Criminal History 31The offender has never been in trouble with the law before this matter, and accordingly, is substantially assisted by his record. He is to be dealt with as a person of prior good character.

Victim Impact Statement 32The Court received a hand-written victim impact statement dated 18 July 2011 from the victim. It sets out the injuries and refers to the same ongoing issues expressed in detail in the report of Dr Love to which I have already referred. I accept that the injuries sustained by the victim have had a significant effect on him. That fact is also evident from the medical material.

Pre Sentence Report 33The Pre Sentence Report sets out many of the matters amplified by Mr. Blackman in his plea in mitigation. The offender is a 28-year-old stockman employed at Corowa in New South Wales. The offender and his partner are expecting their first child in September 2011. The report notes that a psychological report was prepared at the recommendation of counsel, but the offender denies having treatment for mental health issues prior to this matter. 34The report also notes that the offender was well affected by liquor at the time of the commission of the offence. The report notes that the offender has engaged an alcohol and other drugs counsellor at the recommendation of counsel. 35Significantly, the report notes that the offender made "little attempt to mitigate the offences". I accept that this amounts to evidence that I can accept that the offender has genuine remorse for his actions - see for example R v Van Rysewyk [2008] NSWCCA 130. 36The offender is suitable for a medium/low level of intervention by the Probation and Parole Service. He is not suitable for community service because he declined to sign the necessary documentation due to current employment obligations. In any event, I am firmly of the opinion that community service would be a manifestly inadequate sentence in this matter.

Psychologist's Report 37The comprehensive report prepared by Mr Tony Jago of Hume Psychology and Consulting Services of Wangaratta, also establishes that the offender has considerable remorse over the offence for which he appears for sentence. Further, the report notes that in 2007 the offender's then girlfriend was killed in a motor vehicle accident, and the offender is able to extend some empathy to his victim in this matter. 38According to the report, and I accept, the offender is quite distressed about the results of his actions in the early hours of the morning of 17 February 2011. He has "sound insight" into the psychological stressors of the past, particularly the death of his then girlfriend in 2007 and the impact on himself of the offence. 39As a result of the incident that brings him before the Court the offender has "developed a range of symptoms of post traumatic stress disorder with associated depression and anxiety". Not surprisingly, the report indicates that the offender will require on going counselling in order to deal with these ongoing issues. Further, the author of the report opines that, "some self-regulation skills training would be appropriate". The report notes that the offender has taken steps to reduce his alcohol consumption. 40The report concludes that the prognosis for a healthy functioning individual in society is good. I do not understand the author of the report to suggest that there was any psychological issue that contributed to the commission of the offence. 41I do not mean any disrespect to the author of the report by dealing with the contents so briefly. The essential aspects of the report, and those highlighted in the course of sentencing submissions are summarised. The report was extremely helpful on the issue of remorse, and establishing "special circumstances".

Subjective material and plea in mitigation 42Counsel tendered a large volume of character references. The references were from Diane Polkinghorne, Ole Donslund Jensen, Alan J Bratt, Sandra Kay, Ann Charleston, Tony & June King, Claire King, and Ken Widdison (the offender's father). The parties can assume that I have carefully read and considered those references. Clearly, the offence for which the offender is to be sentenced is out of character. Clearly, up until this matter the offender has led a blameless and worthwhile life and has contributed significantly to the community of which he is part. 43Supporting the observation of the psychologist is a report from Ms. Debbie Atkins, Drug & Alcohol Counsellor, indicating that the offender has attended a number of appointments and he appears to be taking positive steps in making changes towards his lifestyle choices. 44The court is very much indebted to Mr Blackman of counsel for his thoughtful, comprehensive and extremely helpful submissions. Mr. Blackman referred to the decision of Nowak. The circumstances of the offence were addressed, as was the answer to question 32 of the ERISP. I do not resile from my description of the actions of the offender as being indiscriminate violence, however, the answer to q 32 of the ERISP puts the actions of the accused into some context. Again I note that Mr Blackman did not submit there was provocation from the victim. 45Mr Blackman then addressed at length on Mr Jago's report. The issues from the report that have been highlighted within these remarks were appropriately emphasised, in particular that the offender is suffering from the effects of PTSD. It is particularly significant, and goes to the credit of the offender, that in neither the Pre Sentence Report nor the Psychologist's report does the offender attempt to minimise his criminality. 46The references to which I have referred were addressed in some detail in the course of submissions. Counsel then went into the personal background of the offender. He is 28 years of age, of prior good character. His parents separated when he was 5, and he was raised principally by his father. He was educated to year 10 level at Corowa and was an apprentice green keeper for some time. He went to South Australia with his then partner for some time before returning to the Corowa area. He has been in his present relationship for about 2 and a half years, and as has been previously mentioned the birth of their first child is imminent. He has played representative football. 47It was put and I accept that there was no planning in the commission of the offence. The vastly excessive consumption of alcohol on the night of the offence was admitted. It was put and I accept that the offender is now doing something positive about his consumption of alcohol. It was put and I accept that there is little likelihood of re-offending. Likewise, I accept that there are good prospects for rehabilitation. 48Both Mr Blackman and the prosecutor have referred to the ameliorative conduct of the offender. It was not as if the offender fled the scene. The ambulance was called, and accordingly, there was some preliminary assistance to the victim. In Thewlis v R [2008] NSWCCA 176 Spigelman CJ (Price J agreeing) said at [4]-[6]: The reasons in Phelan were clearly appropriate in the context of a crime involving the loss of money. They, however, emphasise that something special is required for ameliorative conduct to result in mitigation of sentence. Merely taking a step to redress the effect of a crime on victims is not of itself enough. 5 In the present case that special additional element is to be found in the fact that it does appear that the applicant's immediate recognition of his wrongful act played a significant, and quite possibly decisive role, in saving the victim's life. 6 I agree with Simpson J that this is a circumstance of the present case that deserves recognition in the sentence . 49In the matter presently under consideration there is not the same extent of conduct as there was in Thewlis . However, the offender is entitled to some small consideration for his actions immediately following the striking of the victim. 50Mr Blackman submitted that the dispositions of Periodic Detention or and Intensive Corrections Order would be appropriate. Periodic Detention is no longer available in New South Wales, and an ICO is not available either in Albury or Corowa. The decision in Tsokos (unrep., NSWCCA, 19 June 1995) then becomes relevant. In that decision Hulme J (Gleeson CJ, Powell JA agreeing) said: There is nothing in R v Christine Blair to support the view that a court, unable to impose a sentence it regards as theoretically the most appropriate, is obliged to impose a sentence that is more lenient. The correct approach is to choose from the available options the sentence which is most appropriate. 51Ultimately, the issue for this court in this matter is whether the sentence to be imposed can be suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999.

Prosecutor's submissions 52I commend the prosecutor who appeared for her written submissions. Rarely does the Local Court get such assistance. The prosecutor submitted that there were aggravating factors present: namely (a) the offence involved the actual use of violence and (b) that the offence was an offence in which the injury, emotional harm, loss or damage caused was substantial. That submission must be firmly rejected, as both are an element of the offence on which the court is passing sentence. The prosecution appropriately concede that there was no planning, the offender pleaded guilty and that there are no previous convictions. I have already covered the aspect of ameliorative conduct. Likewise, I have already made findings that intoxication cannot in the circumstances of this offence be a mitigating factor. Neither, however, is it an aggravating factor. The prosecution submit that only a sentence of full time custody is sufficient in this matter.

General Remarks 53I have been referred to the sentencing statistics kept by the New South Wales Judicial Commission. Often enough, those statistics can be useful, however, in this matter, once refined, the sample is so small as to render the statistics of little practical use. 54I am obliged to give proper effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. It is not appropriate to impose any sentence of custody unless the court is of the opinion that no other sentence is appropriate. The purposes of punishment as prescribed in s 3A are: (a)to ensure that the offender is adequately punished for the offence, (b)to prevent crime by deterring the offender and other persons from committing similar offences, (c)to protect the community from the offender, (d)to promote the rehabilitation of the offender, (e)to make the offender accountable for his or her actions, (f)to denounce the conduct of the offender, and (g)to recognise the harm done to the victim of the crime and the community. 55It is an established principle of sentencing that the sentence imposed must be proportionate to the offence. Given the very strong subjective features of this matter it is timely to remind myself of what was said by the Court of Criminal Appeal in R v Dodd (1991) 57 A Crim R 349 at 354: Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594. 56Given the criminality, the injuries and ongoing issues suffered by the victim and the need for a significant element of general deterrence, I am firmly of the opinion that a sentence of imprisonment is the only appropriate sentence. The next issue to be determined is the length of the sentence. Given all of the factors to which I have referred in these remarks the appropriate starting point is a sentence in the vicinity of two and one half years (30 months) from which is to be deducted the 25% discount for the utilitarian value of the plea, which with some slight mathematical rounding down in favour of the offender results in a total sentence of 22 months. 57The next issue to be determined is whether the sentence should be suspended. Howie J in decision of Zamagias [2002] NSWCCA 17 said at [32]: Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is to protect the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate. 58Given the seriousness of the matter taken with the need for a significant element of general deterrence, I am firmly of the opinion that the sentence should not be suspended. However, I am persuaded there are special circumstances, including the offender's prior good character, that this is his first time in custody, and the need for a lengthy period of supervision directed towards issues relating to alcohol. On the issue of special circumstances Hulme J in R v Boney [2008] NSWCCA 313 said at [48]: Altering the ratio between the non-parole and balance of term periods of a sentence from that of 3:1 embodied in s44 of the Crimes (Sentencing Procedure) Act as much as to result in a ratio of 50:50 is sufficiently unusual as to inspire examination.

Formal Orders 59The offender is convicted . Consequent upon that conviction the offender is sentenced to a non-parole period of 12 months to date from today, 23 August 2011 to expire on 22 August 2012. Thereafter, I specify a balance of term of 10 months to commence on 23 August 2012, and expire on 22 June 2013. Magistrate Lerve Albury Local Court 23 August 2011 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: 25 August 2011

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