These reasons finalise the sentence of Dion Bridge-Johnson (the offender) in respect of one offence of causing grievous bodily harm to Tamarin Colan Southam ("the victim") and being reckless as to causing actual bodily harm to the victim in breach of section 35(1) of the Crimes Act.
The reasons finalise the matter partly dealt with by a judgment delivered on 20 July 2023, when three co-offenders were sentenced. Those reasons dealt with all relevant matters save for the subjective case of the offender. The finalisation of his sentence had been adjourned in order for a sentence assessment report to be available.
Apart from a brief summary, it is not proposed to set out the facts and the assessment of objective seriousness in these reasons. All relevant matters apart from the consideration of the subjective case are set out in the earlier reasons now published as R v Caulfield, Russell & Mansfield [2023] NSWDC 347.
In the earlier judgment the objective seriousness of the conduct of the offender was assessed as being at the top of the low range and less objectively serious than the conduct of any of the co offenders. The reason for that was because the agreed facts in relation to the offender state that his involvement in the assault on the victim ceased after one or two hits (paragraph 31). As Mr Carty for the offender pointed out, that allows for a finding adverse to the offender beyond reasonable doubt that there was only one hit. Without detracting from the full summary of facts set out in the earlier judgment, shortly stated this offender attacked the victim on an evening where he and the co-offenders had earlier harassed the victim (see paragraph 14). That attack occurred upon the victim when he was in retreat, was a case of four against one, and is an example of alcohol fuelled violence and significant anti-social behaviour.
One issue that needs to be considered here is that of parity. In respect of the co-offenders Caulfield was sentenced to a term of imprisonment with a non-parole period of two years and a balance of term of one year and four months. Russell was sentenced to a term of imprisonment with a non-parole period of 15 months with a balance of term of 15 months. Mansfield was sentenced for the same offence but with a form 1 matter taken into account to a term of imprisonment with a non-parole period of 21 months with a balance of term of 15 months.
There are significant differences in the subjective cases. In the case of Caulfield there were mental health considerations and he had a history of substance abuse and also sexual trauma. He had behavioural issues at an early age and was diagnosed ADHD. He was sexually assaulted on two separate occasions. He had a supportive family. He had a criminal history made up mostly of offences of violence. A finding was made that he had a lesser moral culpability.
Russell had a very limited criminal history similar to the offender's in that it was a driving matter of driving while suspended; for the offender it is driving high range PCA. He had a significant history of binge drinking and continued to drink at the date of sentence and did not appear to have taken meaningful steps for any intervention in that regard. There is no background of disadvantage of the type seen in Caulfield. He had a good work history.
Mansfield was the oldest of the offenders having just turned 26 at the time of the offence. He grew up in an environment of substance abuse and domestic violence. His history was of being in juvenile detention after he assaulted his mother and he was then the victim of sexual assault. He suffers from PTSD. He had a significant history of drug and alcohol abuse. He had a significant criminal history including offences of assault and a weapons charge. A finding was made of reduced moral culpability and that due to his mental health he was not an ideal vehicle for general deterrence.
[2]
The offender's case
As with the co-offenders the offender is entitled to a 25% discount due to his early plea.
He was born on 10 September 1999 and so was just 22 at the time of the offending and is now 24.
The sentencing assessment report dated 30 August 2023 states that he lives with his partner and they have a four-year-old son. His mother, sister and a friend were present in court and his family circumstances are supportive and prosocial.
He has a history of employment and presently works six days per week. His partner works in a restaurant.
He accepts responsibility for his offending and expressed regret. He displayed to the report writer a positive attitude towards behaviour change. He has ceased using alcohol since the offence which is a period now almost 2 years. His goal is to be a better role model for his son.
He recognises the connection between his abuse of alcohol and his aggressive behaviour and expressed concern about that.
He is willing to undertake appropriate interventions and community service work for which he is considered suitable.
He was assessed as a low risk of reoffending.
In addition to the sentencing assessment report there were four references. The first was of a family friend. She says he has over the years helped her with her two children who are on the autism spectrum and gives examples of driving them to appointments and helping them with car troubles and looking out for them socially. She refers to his anxiety due to his lapse of judgment on this occasion
The second reference is of another family friend suffering stage 4 cancer. He gives her some assistance when required. She considers him to be kind and considerate.
The third reference is from a Ms Edwards who is an elderly neighbour. She described him as respectful and kind and helpful to her on multiple occasions. He helped her carry groceries, mow her lawns and other household errands.
Lastly is a reference from his partner which expresses the view that the conduct is out of character and refers to him as a good partner and father. It also states he has been drug and alcohol free whilst on bail.
[3]
Consideration
For the Crown the submission was that due to the seriousness of this offence as seen by the maximum sentence and standard non-parole period any sentence imposed would mean that section 68 CSPA prohibited the imposition of an intensive correction order. The Crown conceded however that in the event the court came to a conclusion such that an ICO was not prohibited then an ICO was an appropriate outcome.
For the offender it was submitted that remorse had been shown. I accept that submission. Not only has it been expressed but it has been demonstrated by his actions in no longer drinking.
The offender submitted that he had been on strict bail conditions for a period of 12 months following his release from custody in February 2022. This included daily reporting, and a curfew from 7 PM to 7 AM. The bail conditions changed to report two days per week and the curfew commencement time changed to 8 PM. The submission was that this should be taken into account if not as some form of quasi-custody then as part of the overall considerations in arriving at the appropriate sentence.
This offender's likelihood of reoffending is assessed as low. He is now 24 and apart from this offence has one driving alcohol-related offence. He is hard-working and has a prosocial family. I accept that there is a low likelihood of reoffending.
In terms of rehabilitation the issue is his abuse of alcohol. The prospects are good given that he has managed not to drink for two years.
Given his minimal criminal history, his work history, and supportive character references I find that he is a person of good character.
The offender is 24 he is still a young man and I take that into account.
The most significant factor in my view is that this offending was so plainly an aberration. He has no history of violence and is described in the evidence as having comedic qualities rather than aggressive ones. Not only was it an aberration but I draw the inference that as soon as he took part in the assault he realised what he was doing was wrong and stopped.
The purposes of sentencing are set out in section 3A have been set out in the earlier judgment. I will not repeat them here. What needs the most emphasis in my view is protection of the community, general deterrence and denunciation of this type of conduct. The harm to the victim also needs to be recognised. At the same time the sentence should promote the offenders rehabilitation in particular so far as possible it should be structured so as to not negate the positive steps the offender has taken in the now almost two years since the offending.
A strong point made by the Crown was that however good the subjective case may be, it is important to observe the principle of proportionality so that the sentence imposed must remain within the range appropriate to the seriousness of this offence, and not forgetting that the injury suffered by the victim amounted to grievous bodily harm and included a traumatic brain injury.
Of the co-offenders Caulfield and Mansfield plainly posed a greater risk to the community though they did have strong subjective cases due to their respective backgrounds and traumatic lives.
Russell is more comparable to the subjective circumstances of the offender, with a similarly minor criminal record and no background of disadvantage and a work history. He did appear to have a more significant drinking problem than the offender and indeed in contrast to the offender continued to drink up to the date of sentence.
This offender's conduct was less serious than that of Russell and in my view his subjective case is more persuasive.
The sentence will take into account the time in custody which according to the Crown sentence summary commenced on the date of his arrest on 29 November 2021 and ended on 15th February 2022, a total of 79 days. The 81 day figure put by the accused's counsel would seem to arise from taking the start date as the day of offence of 27 November 2021.
Taking all of the above matters into account and bearing in mind the proportionality principle the appropriate sentence prior to the 25% discount is 2 ½ years so that after the discount is 22 ½ months. When allowance is made for the 79 days in custody the balance of that term is 20 months.
This means that section 68 does not prohibit the imposition of an ICO. Whilst the Crown does not argue against an ICO if not prohibited by section 68 it is appropriate to briefly consider section 66.
By section 66 (1) the paramount consideration is community safety. Section 66 (2) provides for the making of an assessment as to whether the making of the ICO or the imposition of a term of full-time custody will more likely address the offender's risk of reoffending. Given the positive performance of the offender in the community since he has been on bail, including working now six days a week, having remained abstinent from alcohol and I would infer having committed himself to his young family it is plain that he is now leading a prosocial life in an environment of pro social influences. To disrupt that circumstance by placing the offender in full-time custody in my view can only more likely than not counteract the positive position he is now in and hence be more likely to lead to further offending than if the ICO was made.
Section 66(3) requires consideration of the provisions of section 3A. In reconsidering those provisions at this stage of the process I consider that the purposes of sentencing are met by an ICO. In particular it does not place the community at any greater risk and indeed my view is that it further protects the community by furthering his pro social development. In terms of denunciation and also deterrence it pays to contemplate the punishment already suffered by this offender. A young man from a pro social background conducts himself in a way that is an aberration lasting a short time and finds himself for the first time in his life in custody for 79 days, followed by stringent bail conditions and the stress that is involved with going through the criminal justice system to arrive at this stage of sentencing. Not only that, on the orders that will be made there is a further 20 months that his liberty will be curtailed. In my view that is a consequence of significant deterrence and satisfies the requirements of the proportionality principle.
[4]
Orders
Of the offence under section 35 (1) the offender is convicted.
After applying the 25% discount and allowing for time served the offender is sentenced to a term of imprisonment of 20 months dating from 11 September 2023 and expiring on 10 May 2025.
That term of imprisonment is to be served by way of the imposition of an intensive correction order subject to the following conditions:
1. That the offender not commit any offence.
2. The offender be subject to the supervision of community corrections and for that purpose attend at the office of Community Corrections in Coffs Harbour by no later than 18 September 2023.
3. That the offender remains abstinent from alcohol.
4. That the offender completes 150 hours of community service work.
I note that there is no non-parole period due to the imposition of an ICO. I note that any non-parole period would have been less than the standard non-parole period. The reason for that conclusion is due to the matter being assessed as being below the midpoint of seriousness as referred to in section 54A of the Act and also due to the favourable subjective case of the offender.
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Decision last updated: 11 September 2023