R v Caulfield, R v Russell, R v Mansfield

Facts

1. The facts are largely the same in each case. Any significant difference will be noted. Perhaps the first and most significant difference to note is that at paragraph 37 of the agreed facts of Mansfield it is stated "at 03:53:22 the assault ceased. After the assault by the group and everyone else had walked away from the victim Lucy Fitzgerald approached the victim and punched him three times to the face and then kicked him". In some submissions that was referred to as paragraph 38 of the Mansfield facts but is in fact paragraph 37. That agreed fact appears in the agreed facts in the case of Mansfield but it does not appear in the agreed facts of Caulfield, nor in the agreed facts in the cases of Russell, nor Bridge-Johnson.
2. In relation to the sentence of Caulfield the Crown agreed that the agreed facts should be taken to read as if paragraph 37 of the Mansfield facts was included as an agreed fact in the case of Caulfield, and ultimately in the facts of Russell and Bridge-Johnson as well. In contrast, a second difference is that in the Caulfield facts Caulfield is not identified as the person who tackled the victim, whereas he is so identified in the facts for Mansfield, but not in the facts for Russell or Bridge-Johnson. Quite properly Mr Coady for Caulfield did not make any similar concession; that is, Caulfield is to be sentenced on his facts, so not as the tackler.
3. The first summary of the facts set out below under the heading "Caulfield facts" is taken from the agreed facts in the sentence of Caulfield and includes paragraph 37 from the Mansfield facts as just discussed. The points of difference between the various sets of facts will be referred to as necessary and as has been referred to and relied on by the parties in submissions.

Caulfield facts

1. At the time of the offence, the victim lived at 2 Curacoa Street, Coffs Harbour, which backs onto 36 Bonville St. Mansfield, with his partner Kaylee Scott and 4 children, lived at 3/36 Bonville Street. On 27 November, Caulfield and his partner, Kodie Hough, visited Mansfield and his partner at 36 Bonville Street. All 4 were drinking save for Kaylee Scott who was pregnant.
2. Bridge-Johnson and a Deegan Ward were at the Coast Hotel where they each had 7-8 alcoholic drinks. They left the Hotel at about 1.25am and walked to 36 Bonville St.
3. At 12.47am the victim was with Lorraine Selma, who owned the flat the victim rented. Ms Selma lived at 2 Curacoa Street also, in the main house. They were on the balcony talking and having a drink and were discussing the noise coming from 36 Bonville Street. Ms Selma went to bed at 2am, by which time the noise had quietened down.
4. At 3.06am the victim was still up, and the 4 offenders argued with the victim, and called out things like "dog" and "quiet now" between themselves. At 3.10am the victim's windscreen was damaged and CCTV audio captured a loud bang and the words "fucking pussy"; less than a minute later 6 people are seen entering 3/36 Bonville St, and a male voice can be heard saying "you know the cops are gonna be here in 5 mins". At 3.12am the victim and Ms Selma both called 000. The victim reported that a bunch of 4 men were running around bashing on things, including the house. Ms Selma reported that people were on her verandah and yelling "fucking cunt". She said they were very drunk and had thrown something. Ms Selma rang the victim and they spoke about the noise. She heard the victim shout "the police are here you scumbags" and she told the victim to stay out of it.
5. At 3.47am Mr Ward, who was walking from 36 Bonville St to the street to meet his grandfather for a lift home, was approached by the victim regarding the damage to his car. Mr Ward said he did not do anything. The victim then ran to Mr Ward and assaulted him and said it was a "citizen's arrest" and again called 000. Ward said the victim hit him in the back of the head; the victim said he had tackled him.
6. The 000 call was recorded, and Mr Ward can be heard saying "I'm over here dad"; that person was Mr Ward's grandfather, Mr Stanford. Mr Stanford told the victim to leave Mr Ward alone, and the victim then kicked Mr Stanford in the chest, who then fell to the ground and got up. Mr Ward was on the phone to Bridge-Johnson and said "Oi, get down now, get down here now, with AJ", which is agreed to be a reference to Mansfield.
7. The victim continues talking on the 000 call and at 5 minutes into the call the victim said, "what the hell", and a scuffle can be heard in the background. The agreed fact is the recorded call captures the sound of the victim being assaulted for "another" 30 seconds before the call ended. A male voice was heard to say, "fucking dog". The word "another" is a reference to more time passing, not further assault, as this is the first instance on the facts of the victim being assaulted, and before it is said that the 4 offenders are on the scene. The facts as set out at [29] of the Bridge-Johnson facts do not allow for who was assaulting the victim at this point to be determined. It may be that what is being referred to is what occurs after the 4 offenders arrive, which is recounted in the following paragraph: that is the paragraphs are a little out of sync.
8. Then, at 3.52 am, the 4 offenders ran towards the victim, who dropped his phone and ran into the street. The 4 offenders follow him and get into a scuffle, I infer with the victim. This is the first contact between the victim and any of the offenders directly relating to the s35 offence. In evidence given by Mansfield at the hearing Mansfield admitted to throwing the first punch. Mansfield, in variation to [31] of the agreed facts, said he first went to check on Ward before following the victim. The agreed facts continue that the victim was tackled to the ground. It is not clear if the first punch Mansfield refers to was in the course of the 3.52 am scuffle, or after the victim was tackled to the ground. The "scuffle" seems to continue for a period before the tackle, see the Mansfield agreed facts at [33].
9. After the victim was tackled to the ground all 4 offenders kicked and hit him while he was on the ground. Mr Stanford, who with Ward had been witnessing the scuffle, said "that'll do", that is, he encouraged them to stop. So too does Kodie Hough, the partner of Caulfield. Mr Stanford said let's get out of here, and he, Ward and Bridge-Johnson move away from the scene. Soon after Mansfield, Caulfield and Russell, Lucy Fitzgerald and Kodie Hough walk away, leaving the victim unconscious in the middle of the road. Bridge-Johnson leaves the scene in a car with Ward and Mr Stanford.
10. The assault ceased at 3.53:57 am. The agreed fact taken from the Mansfield facts at [37], and agreed by the Crown to be read in the facts of all the offenders, is as follows "After the assault by the group and everyone else had walked away from the victim, Lucy Fitzgerald approached the victim and punched him 3 times in the face and then kicked him".
11. Mansfield, Russell and Caulfield head towards 36 Bonville St; Kodie Hough says "call an ambulance" and "you've nearly killed him on the road". That group returns to the scene and unidentified speakers say "move cunt"; "get up" and "wake up". Mansfield pushes on the victim's chest. Kodie Hough says to stop, I infer to Mansfield to stop pushing, and says the victim needs an ambulance. Everyone but Kodie Hough and Caulfield then go back inside 3/36 Bonville St. As Mansfield does so, he said to the occupant of another unit, Donna Maric, "call the cops you dog and I'll show you what fucken I'll do to you you maggot". This is the intimidate offence against Mansfield only.
12. Ms Maric calls 000 (at 3.55am) as does Hough (at 3.56am), with a phone given to her by Caulfield.
13. At 4am the police arrive. The police talk to Hough and Maric. The police see a smashed windscreen and a letter box on a star picket lying nearby. This was the mailbox of 2 Curacoa St, about 2 metres from the vehicle.
14. The victim suffered the following injuries: 1. Traumatic brain injury; 2. Contusions to face with blood from ear canal; 3. Right 2 to 4 rib fractures; 4. Fracture of right scapula blade.
15. The victim spent 11 days in ICU and then had 7 weeks rehabilitation before being released from hospital to assisted living accommodation on 24 January 2022. Later in 2022 the victim died, but not in a way connected to this assault.
16. In the police investigation that followed, Caulfield initially said he was not there when Ward was attacked; and that he was inside with kids when the victim was attacked.
17. Mansfield denied any memory of what happened between his group and the victim.
18. Russell denied assaulting the victim.
19. Bridge-Johnson admitted attending the scene after getting a call from Ward that he, Ward, had been "dog shot"; he said the victim was standing over Ward and shaping up to him and the first instinct was to protect Ward. He said they threw some punches and that was it.

Objective seriousness

1. Each offender relied on so-called "provocation" in an effort to lessen the seriousness of their behaviour. The provocation is said to be the fact that the victim had been the first person to commit an assault that evening being the assault on Ward. That led to Ward telephoning Bridge Johnson who said "oi get down here now get down here now… With AJ" which is a reference to Mansfield. The next thing that happens involving the four offenders is that they run towards the victim plainly in response to the phone call.
2. Whilst the word "provocation" has been used liberally by the offenders nobody is suggesting that their conduct was justified by the earlier assault of the victim nor is anyone suggesting it is self-defence or even excessive self-defence. The submissions really amount to saying that the offenders were motivated by the fact that Ward had been hurt by the victim.
3. I do find that on the facts there is clearly a connection between the assault on Ward and the offending by the offenders. A case in which this was considered was Smith v R [2011] NSWCCA 209. One ground of appeal was that the sentencing judge had given inadequate weight to the element of provocation in mitigation of the sentence. The facts of the case were that the offender committed the offence of break and enter with intent to commit a serious indictable offence. The offender's mother had received approximately half a dozen highly offensive phone calls from a certain person. The offender then attended that person's home, broke into it and hit a person 10 times with a piece of timber about 60 cm in length and 3 to 4 cm in diameter. It transpired that person was the brother of the person making the offensive calls.
4. In favouring the offender on this ground the court referred to R v Swan [2006] NSWCCA 47 and R v Craddock [2004] VSC 397 and in particular to the judgment of Spigelman CJ in Swan at [59] and following where his Honour noted that a person is not entitled to take the law into their own hands; that principle is largely a manifestation of the principle of deterrence; the motive for the offending is a matter that affects moral culpability of the offender and the weight to be given to personal deterrence. His Honour did say that the motive would not be so relevant if limited to a narrow concept of the objective gravity of the offences, which seems to me to be a way of saying that for the assessment of objective seriousness for the purposes say of section 54A motive may not be relevant but for more general sentencing considerations in determining moral culpability, it is relevant as with matters of a person's background for example, in the way those matters are discussed in McLaren v R [2012] NSWCCA.
5. In Smith the offending was out of character for the offender. He did not have a history of violence and his criminal record was old and was not for violence.
6. It follows in my view that the provocation referred to by all of the offenders in the way I have sought to describe it above does lessen their moral culpability and may therefore act to lessen the weight given to personal deterrence in the sentence and perhaps to some extent general deterrence. The result however will not be uniform amongst the offenders because other factors also need to be taken into account such as whether it was out of character and there are plainly some of the offenders with a history of violence and others without.
7. In assessing the objective seriousness of the offending of each of the four offenders it is relevant to take into account, in addition to the matter of provocation and without being exhaustive, the following matters: 1. The degree of harm that is caused. 2. The degree of violence involved. 3. The degree of planning involved. 4. The duration of the assault. 5. The overall circumstances in which the offending occurred.
8. In this case the degree of harm suffered by the victim is a feature common to the case of each offender. The facts do not allow an assessment of precisely what each separate offender did in the course of carrying out their common attack upon the victim, though there is some information in that regard relating to Mansfield and Bridge-Johnson. We know in the case of Mansfield he threw the first punch; in the case Bridge-Johnson the fact is he effected only one or two hits; and we know in the case of Mansfield that Caulfield tackled the victim. What can be said is that as a result of the offending the victim suffered the injuries set out above.
9. Those injuries are significant. It is of course an element of the offence that grievous bodily harm be suffered. By section 4(1) of the Crimes Act "grievous bodily harm" is defined to include any permanent or serious disfiguring of the person. At common law it simply means, in short, "really serious".
10. The subsequent assault by Ms Fitzgerald upon the victim following the assault upon the victim by the offenders means that there is open a reasonable inference that the extent of the injuries suffered by the victim is not all attributable to the four offenders. It is conceded that even allowing for the subsequent assault by Ms Fitzgerald that the injuries set out above have been caused but those injuries have plainly been contributed to by Ms Fitzgerald, or perhaps better expressed the Crown has not established beyond reasonable doubt that they were all wholly caused by the offender's conduct. Further in my view the Crown has not established beyond reasonable doubt that the need to go into assisted-living after the seven weeks of rehabilitation of the victim was due to the conduct of the offenders. The medical evidence relied on by the Crown in respect of the victim was scant which further contributes to this result. It should also be noted that the first reference in the facts to the victim being unconscious is after the assault by Ms Fitzgerald; see [39] of the Mansfield facts, though before that assault Ms Hough had expressed the view that the victim could not breathe.
11. Plainly the injuries are very serious, and the offence under s35 is a most serious one, however, in the context of such a serious offence, due to the above considerations, it cannot be said that in terms of injuries suffered this is a serious example of a section 35(1) offence. That is however not determinative of the overall assessment as to objective seriousness.
12. The duration of the assault is also a common factor to 3 of the four offenders. The exception is Bridge-Johnson. The evidence shows that he desisted in his assault conduct after delivering two blows. He then shortly after left with Ward and Stanford. I find that he was less involved in this assault than the remaining three offenders. The duration consideration assists Bridge-Johnson; it does not significantly assist the other 3 offenders. In this regard I accept the Crown submission that whilst the duration of the assault was in one sense brief, to be the subject of hitting and kicking for that period, some 50 seconds, is an extensive period.
13. Of the other offenders it is plain that Mansfield has responded to the call from Ward to Bridge-Johnson. He however was accompanied by the three others so whilst he, along with Bridge-Johnson, was requested by Ward to go to the scene, that does not make him any more involved than the other three who all attended together with him, with the qualification discussed above concerning Bridge-Johnson.
14. Nor is it able to be disentangled from the facts at what point the first punch of Mansfield was delivered. This is because the sequence of what occurred, based on the Mansfield facts, is (from [31]) the 4 offenders arrive at the scene (and leave aside any inquiry by Mansfield of Ward for present purposes), the victim runs into the street, the 4 offenders follow the victim, I infer into the street, and there is then a scuffle. It is after that the victim is tackled to the ground, and all 4 offenders kick and hit the victim whilst he is on the ground: [33]. In the facts for Mansfield, it is agreed that it was Caulfield who made the tackle; that is not an agreed fact in the Caulfield facts; see at [23]. In the Bridge-Johnson facts there is no mention of a tackle; see [31], and nor is there in the Bridge-Johnson facts; see [31] of those facts. The sentence for each offender should be based on the facts for each offender, save for the fair concession by the Crown as to the inclusion as a fact in each case, even where not stated, of the assault by Ms Fitzgerald.
15. To be engaged in a scuffle could extend to no more than pushing and shoving and no punching. The best that can be said is that Mansfield threw the first punch, but just whether that was at the beginning, or during, or at the end point of the scuffle, or at the beginning point of the attack of a person on the ground is not able to be determined.
16. In terms of planning, I accept that as was submitted by each offender there is limited planning. I reject the suggestion that it was an impulsive event. This is because some time, albeit brief, had passed between the initial call from Ward to Bridge-Johnson, and when the offenders arrived at the scene and ran towards the victim, the victim ran no to the street, and the offender had to pursue the victim to assault him. It is not an impulsive reaction to an event occurring in the offender's presence.
17. Each of the offenders was affected by alcohol. That does not allow for mitigation by reason of s21A(5AA), though it may legitimately be considered in connection with the assessment of an offender's prospects.
18. The above matters address the four offenders collectively although some distinction has already been made. The assessment of the objective seriousness of each offender's conduct will now be addressed.

Caulfield

1. There is nothing in the agreed facts relating to Caulfield that singles his conduct out from the other offenders, with the exception of Bridge-Johnson's more limited involvement. On the Caulfield facts, the agreed fact is the victim was tackled to the ground, but those agreed facts do not identify the tackler. In the aftermath Caulfield did remain with the victim after having first left the scene and then returning and remaining with his partner Ms Hough and assisting her in calling 000. This shows a degree of concern on Caulfield's part for the offender's well-being but assists him subjectively rather than in terms of objective seriousness. The objective seriousness of his offending, for the reasons discussed above, is below the mid-range.

Russell

1. In the written submissions for Russell the first point made is as to the involvement of Lucy Fitzgerald and paragraph 37 of the Mansfield facts. That has been dealt with above.
2. The submissions acknowledge as they must that the role of Russell is that he in company with the other co-accused kicked and hit the victim whilst he was on the ground.
3. The Crown acknowledges an error in its submissions referring to Russell as only desisting when told to do so by his former partner.
4. A characteristic of the facts concerning Russell is that there is nothing in the agreed facts in the case of Russell that identifies conduct particular to Russell. In other words, he along with the other three offenders took part in the assault. Earlier in the evening he had arrived at 36 Bonville Street with Ms Fitzgerald and early in the morning at about 1:50 AM went with the others to get more alcohol from Fitzgerald's house. He was part of the group having the argument with the victim at about 3:06 AM. It is not known what he did in the assault of the victim other than that he was part of it. In assessing the seriousness of this offence in my view it is below the mid-range in light of the considerations above.
5. There is a distinction to be drawn between Bridge-Johnson and the others in terms of objective matters in that he stopped his criminal behaviour sooner. The reality is there is nothing to distinguish the conduct of Russell, and the same is the position on the Caulfield facts. That the Mansfield facts show a tackle by Caulfield, and Mansfield in evidence accepted he threw the first punch does nothing more in the facts of this case than to identify a particular hitting by Caulfield and Mansfield of the victim. That no particular such kick or hit can be identified in respect of Russell does not mean that he was any less involved than Mansfield and Caulfield.
6. I would assess the objective seriousness of the conduct of Russell to be the same as for the assessment of Caulfield namely below the midrange.

Mansfield

1. Mansfield gave oral evidence. With respect to all concerned the oral evidence in my view did not advance matters one way or the other. He conceded that he threw the first punch but just when that occurred is also difficult to discern from the facts as discussed above.
2. There is no reason to identify Mansfield as more affected by provocation than the others simply because he was requested by Ward, through Bridge-Johnson, to attend.
3. It will be necessary to take into account the Form 1 offence relating to him in the ultimate sentence but relative to the section 35 matter the fact that he was aggressive as he walked back to 36 Bonville Street after the assault shows that he remained in an aggressive state at that time. He seems to have a distinct lack of concern for the victim though no more (or less) so on the facts than Russell or for that matter Bridge-Johnson who departs in another direction, save that the facts do show he returned to the scene and attended on the victim, albeit in a fairly rough manner.
4. Much was sought to be made at the hearing as to whether he arrived at the scene with a focus on the victim or whether he first checked on Ward. Nothing of significance turns on this; on any version there was little delay in progressing to the victim. In my view if he had stopped to check with his friend Ward as to his well-being then there was even more time for him to realise that there was no need for an aggressive attack to be made on the victim. I consider that it is unlikely that Mansfield stopped to check on Ward, but even accepting that he did, it does not in my view add to or detract from my assessment of the objective seriousness of his offending.
5. That he was responding to a call for assistance in the face of an assault and arrived at the scene to see an injured Mr Ward is a matter to take into account as discussed above.
6. On balance there is little to distinguish Mr Mansfield's conduct from that of Russell. His conduct has been highlighted and magnified because it has been identified that he threw the first punch. Yet it is not clear when that occurred, and whilst to throw the first punch possibly escalates the situation, in all the circumstances of the conduct of the 4 offenders, the occurrence of the assault was not so much a question of if, but when.
7. That Mansfield was requested via Bridge-Johnson to attend does not add to the objective seriousness of his offending; what matters there is that all four chose to attend. I assess the objective seriousness in the case of Mansfield to be the same as for Caulfield and Russell.

Bridge-Johnson

1. Again, there are some slight variations in the agreed statement of facts relating to Bridge-Johnson. He did not join the other offenders at Bonville Street until after 1:25 AM. Like the others he was affected by alcohol. Not long after he arrived, he left with the others to get more drink and then return to Bonville Street.
2. Bridge-Johnson received a call from Mr Ward and was asked to get down to the scene with Mr Mansfield. He with the others ran towards the victim, engaged in a scuffle and in line with [31] of the agreed facts kicked and hit the victim while he was on the ground.
3. A distinguishing feature of the agreed facts relating to Bridge-Johnson is that [31] concludes by saying he "ceased his involvement in the assault on the victim after one or two hits". He then very soon after and before the assault had in fact ended moved away from the scuffle with Ward and Stanford. He then left the scene with those two.
4. Consistent with the treatment of the other facts there should be added here the fact of the subsequent assault by Ms Fitzgerald.
5. All the same observations made above apply to Mr Bridge-Johnson with one notable difference. That is that he desisted from the assault that was taking place. As a result, the objective seriousness of his offending in my view must be less than the others. I would consider his offence to be, like the others, below the mid-range but even more so; I accept the submission of the offender that it is to be assessed at the top of the low range.

Conclusion as to objective seriousness

1. It follows from the above that I consider the offending of the offenders Caulfield, Mansfield, and Russell to be below the mid-range.
2. The case of Bridge-Johnson is different due to his lesser involvement in the actual assault resulting in an assessment even further below the mid-range and at the top of the low range.

Aggravating features

1. Both Caulfield and Mansfield were on conditional liberty which aggravates their offending. Caulfield has a criminal history of violence as does Mansfield. Both of these matters are taken into account in determining the ultimate sentences for these offenders. In passing, this is a point of difference between these two offenders on the one hand and Bridge-Johnson and Russell on the other; the latter two offenders have negligible criminal histories and were not on conditional liberty at the time of the offending.

Victim Impact Statement

1. To be considered in the case of each offender is a victim impact statement. As a result of the fact the victim has died since this offence the victim impact statement is made up of text messages sent by the offender. It is not clear when they were written but I infer they were all written following the assault. It reflects a person who would appear to be very depressed. The passage marked "1a" states that they have taken everything from (me) which I take to be a reference to the offenders. The victim expressed great lament of being a burden to his mother and great fear as to his future. He refers to addiction to drinking. He also refers to his lack of understanding of brain injury. He states he prays for death sooner rather than later (at 5a).
2. I take that victim impact statement into consideration in accordance with section 30E. It needs to be read as referring to some aspects of the victims of life that predate the attack, for example his addiction to alcohol, but it nevertheless shows what a devastating effect the attack had upon him.
3. A submission was made on behalf of Mansfield and Bridge Johnson seemingly on the basis that what was being said was being said by the victim's mother. Ultimately what was read were the text messages of the victim so that in my view there is no substance in that submission.
4. On behalf of Russell, it was said that the reference to vomit on page 3 of the statement should not be used to enlarge the harm evidence in respect of the offence owing to it not being an agreed fact. I have accepted that submission

Sentencing considerations-all offenders

1. What will now follow is a consideration of the subjective cases of each of Caulfield, Mansfield and Russell, and then a determination of the appropriate sentence in line with the instinctive synthesis approach. It is convenient to here set out the purposes of sentencing as set out in s3A, and to then make reference to them when determining the separate cases.
2. The purposes of sentencing are as follows: 1. To ensure the offender is adequately punished 2. To prevent crime by deterring the offender and others from committing similar offences 3. To protect the community from the offender 4. To promote the rehabilitation of the offender 5. To make the offender accountable for his actions 6. To denounce the conduct of the offender 7. To recognise the harm done to the victim of the crime and the community
3. In this case, with some variations in emphasis between the offenders, it is the purposes of general deterrence, specific deterrence, denunciation and protection of the community and rehabilitation that most call for attention.

Parity

1. As was said in Lowe v R (1984) 154 CLR 606 at [3] per Gibbs CJ: "It is obviously desirable that people who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as age, background, previous criminal history, the general character of the offender and the part he played in the commission of the offence have to be taken into account".
2. In determining the sentence for each offender, the parity principle has been considered so as to ensure no offender has a justifiable sense of grievance.

Subjective matters, submissions and consideration

1. For each of the offenders it is agreed that they are entitled to a 25% discount due to the timing of their plea of guilty. Beyond that the facts of their respective subjective cases vary and each need to be considered separately.

Caulfield

1. Joshua Caulfield was born on 11 August 1998, so he is presently 24 years old and was 23 at the time of the offending. There was a psychological report of Ms North dated 22 June 2023. The Crown did not challenge the reliability of the history given to Ms North which was not verified on oath by the offender. Indeed, the Crown expressly accepted parts of the history in particular concerning the state of mental health of the offender and made submissions that, accepting the offender's mental health condition of possible schizophrenia is able to be dealt with by medication and that it is not known to heighten aggression in people. The Crown also did not cavill with a finding of special circumstances due to issues that have affected the offender during his younger years contributing to his substance abuse and possibly his schizophrenia.
2. The history given to Ms North in summary is that behavioural issues of the offender escalated from the age of 12 due to sexual trauma, which also led to substance use issues, a reference to both alcohol and drugs.
3. The offender is the third of four children, and his parents were in a stable relationship. He says he had early onset behavioural issues and was later diagnosed ADHD in early high school and was prescribed medication. He says he was bullied. Between 11 and 12 years of age he was sexually assaulted by a male teacher on a school camp which he sees as the beginning of the decline in his behaviour and the onset of drug use. He left school in year 8 and spent time in juvenile detention. It was there he was sexually assaulted a second time between ages 12 and 14 leading to escalated drug use. He has completed the equivalent of year 10 at high school despite these difficulties. He has had employment in unskilled jobs though one was with an earthmoving company so may involve some training, but the employment history is impacted by his drug use.
4. As to his drug use, he began using cannabis at 12 and methamphetamine from age 15. He has also engaged in binge drinking from age 12 and recreational cocaine use.
5. He says he has been abstinent since entering remand. He acknowledges the connection between his substance use and his offending and is motivated to engage in treatment to maintain abstinence. He has previously completed the EQUIPS addictions program.
6. There was a history of self-harming commencing at 13 so following the first sexual assault and there were two suicide attempts the last at age 18. Prior to that he claims to have heard voices telling him to hurt himself and other people. There are also symptoms of paranoia for example as to his former partner's fidelity. He said he had sought assistance from a psychiatrist prior to entering custody and says he had been diagnosed with schizophrenia and prescribed an antipsychotic medication which he has not used since going into custody and as I understand it had gone off that medication prior to the offending. The report notes schizophrenia is a self-reported matter not verified by diagnosis.
7. He has two children aged eight and three and wants to be more present in their lives.
8. The assessment made is that the offender describes symptoms of depression and anxiety and suffers hallucinations, but the severity of these conditions reduces with medication. He was assessed as being a low risk of self-harm at the time of interview.
9. Psychometric testing placed the offender in the severe range for depressive symptoms at the time of assessment with symptoms including a low sense of self-worth pessimism and disappointment in himself. Other testing showed moderate anxiety symptoms.
10. The opinion expressed is that the symptoms described are commonly associated with post-traumatic stress though there was insufficient information to support such a diagnosis. His substance abuse was assessed to be directly related to underlying mental health and past trauma issues and that the use of substances was a maladaptive coping mechanism from the age of 12. He was assessed as meeting the criteria for stimulant use disorder and cannabis use disorder
11. Future treatment recommended is to engage with a psychiatrist and psychologist and to comply with medications as may be prescribed and that upon discharge he be referred to supervision for ongoing monitoring and case management to assist his transition to the community and I would add to ensure compliance with any treatment program.
12. Despite the qualified comments earlier in the report the section headed diagnosis lists schizophrenia and post-traumatic stress disorder though it does state the latter is a provisional diagnosis.
13. Caulfield read an affidavit sworn by Destiny Button on 27 June 2023. Ms Button is a childhood friend of the offender although she is a few years older. Her affidavit is consistent with the history given by the offender and gives evidence of him expressing remorse and acknowledgement of wrongdoing. She offers him a place to stay on his release.
14. A letter from a firm of solicitors confirms they act for the offender in an institutional abuse claim for compensation and refers to both occasions of the abuse alleged.
15. Also in evidence was medical notes from the medical centre attended by the offender which shows as I read the report that in 2021 he was prescribed medication for schizophrenia. The entry for 2015, so when the offender was approximately 17, records that he had connection with head space and a psychiatrist and records a learning disability. Another entry at page 3 of the exhibit records a consultation in November 2021 and a history of auditory and visual delusions and the hearing of a voice telling him to do bad things and records a story of being touched by a previous teacher. A letter from a Dr Mustac recommends treatment with a drug (Lurasidone) to deal with schizophrenia.
16. A sentencing assessment report was prepared. It was dated 23 June 2023. It notes the offender's mother and brother support him and appear to be pro social. He has had employment in custody. It refers to a history of expressive violence which is reflected in his criminal history referred to below. It notes eight breaches of discipline in custody with two of them from his current period of custody. One was for intimidation.
17. It notes he disputed the agreed facts at least to some extent and also states that he acted out of concern for the well-being of his friend and the friend's grandfather. That with respect shows a distinct lack of insight and of maturity.
18. It refers to his history of substance abuse. It notes his mental health as already discussed. It also considers his insight to be lacking.
19. On a more positive note he is willing to undertake supervision and interventions and to do community service work for which he was considered suitable. Regrettably his response to supervision historically has been poor and of course he was on parole at the time of this offence.
20. He is assessed as a high risk of reoffending.
21. There are two features of the offender's criminal history relevant to determining sentence. The first is that if the record as an adult is considered, and that commenced at age 18, the offences are mostly offences of violence. This includes assault, affray, assault occasioning in contravention of apprehended domestic violence orders. The record is one which calls for emphasis on specific deterrence. The other feature is that the very first sentence he received as an adult at the age of 18, for a stalking offence and a driving matter, was a term of imprisonment. He was sentenced on that occasion for eight different offences. The order was confirmed on appeal to the District Court. The order was a 12-month sentence with a six-month non-parole with the released to be subject to supervision and the finding of special circumstances is noted to relate to his mental health and the first time in custody. It is not suggested that this sentence was inappropriate, and the unsuccessful appeal is noted. Nevertheless, in light of the evidence now before the court of the degree of mental ill-health, and substance abuse which is on my finding related to the trauma he has suffered, the sentence of an 18-year-old to a short period of custody followed by a short period of supervision may be considered one not likely to significantly impact on his rehabilitation. At the same time, it is plain given what had followed that the offender himself either failed or was then not capable to rehabilitate.
22. He was next sentenced in 2018 for assault occasioning and common assault and again there was an appeal with the ultimate sentence being 18 months imprisonment and a 10-month non-parole period, so again a finding of special circumstances. The facts sheet of that matter was in evidence though no submissions were based on them. Suffice to say it shows a bad example of domestic violence offending. Then in 2021 for offending which again included violence he received in effect a 10-month sentence with a six-month non-parole period and it was whilst on that period of parole that the current offence occurred.

Caulfield-Submissions

1. The submissions for the offender rely on the mental health of the offender and the trauma he has suffered that have on the evidence led to his substance abuse. I accept the history as set out in the psychologist report and the submissions made on behalf of the offender are well founded on that material.
2. No submission is made that there is a causative connection between the mental health or the drug use and the offending. Rather, in line with the second, third and fourth bullet points of [177] of De la Rosa [2010] NSWCCA 194 the mental health issues are argued to have the consequence that the offender is an inappropriate vehicle for general and specific deterrence. They also are likely to mean a custodial sentence will weigh more heavily on him.
3. In this regard the childhood sexual abuse is a very significant matter. Reference was made to the bar book projects and its chapter on child sexual abuse. Based on the summary provided it is recognised that childhood sexual abuse is a substantial risk factor for the development of mental health problems, drug and alcohol dependence, depression and engaging in risky behaviours. The recourse to alcohol and drug dependence is often a means of coping with the trauma suffered.
4. The Crown emphasised the offender's criminal history, and the fact of this offence occurring on parole. It also notes the lack of evidence of seeking mental health assistance when last released from custody though there was mention from the offender and unverified of some attempt prior to going back to custody.
5. The Crown does concede that because of the offender's history there are special circumstances warranting a departure from the standard ratio. The point may however is that needs to be balanced against the tendency to violent offending and I infer the need to protect the community.

Caulfield-consideration

1. There is undoubtedly a significant need in this case to structure a sentence which protects the community. I accept the Crown's submission to that effect. This offender has shown himself to be incapable of behaving in a pro social manner for any considerable period of time in the community.
2. At the same time the submissions of the offender as already noted are all well-founded. The case has not been argued as one of a significant background of social disadvantage but rather one of mental health and substance abuse issues emerging from identified instances of trauma.
3. The judgment of Simpson J in Millwood [2012] NSW CCA 2 in my view more aptly addresses this case than reference to Bugmy. Her Honour said in the well known passage from that case at [69]: I would reject the proposition contained in the first sentence. I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been "tragic and dysfunctional". That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders.
4. The facts in that case were of an offender who had grown up with parents who were drug addicted and the offender had been present when his mother died of a drug overdose. Whilst the facts are plainly different it simply demonstrates how relevant the background of the offender in the present case is. I accept the offender's submission that there should be a finding of lesser moral culpability of the offender. It affords him some leniency the degree to which must necessarily be a case-by-case consideration though I note the reference by Simpson J to it being limited. This is a second basis for a finding of less moral culpability, following the finding of provocation discussed above.
5. The offenders submission placed significant weight on the fact that, in the offenders view, the offender had twice been "failed by the state" which was a reference to the two occasions of sexual abuse. Whilst that is an accurate statement because both occasions of abuse happened in government institutions, assuming that it was in fact a government school that he attended, in my view the impact of the sexual abuse trauma is not added to by the fact that it occurred in a government institution. If so, it would mean, all other things being equal, a person who was abused at a Catholic private school would have a weaker subjective case than somebody who was educated at the local government high school, which in my view must be wrong. The significant fact is the sexual abuse, not where it occurred.
6. As is not unusual the position reached is where the various purposes of sentencing point in different directions. The offender is not the best vehicle for general deterrence. I note the fourth bullet point of the passage from De la Rosa referred to above which allows for a possibility of reduced specific deterrence but in my view, there is a need for specific deterrence in this case albeit tempered somewhat. There is a need to promote the rehabilitation of the offender so far as possible within the constraints of the need to protect the community. In that regard I do take into account the history of his sentencing. It was the Crown's submission that the sentence should be more severe because the offender plainly has not taken heed of the lesser periods of imprisonment; that is because there has not been success at deterrence by imprisonment the approach should be to lengthen the period of imprisonment. A contrary view is to say that the focus having been on incarceration (albeit with some modest period of special circumstances) and it having failed then perhaps a focus on extended supervision should be considered. In terms of long-term and overall benefits to both the community and the offender my view is that the second approach has merit. At the same time the nature of this offending dictates a sentence of some severity to properly reflect the purposes of sentencing of not only deterrence as affected by the above considerations, but also punishment and denunciation In recognition of the harm to the victim and the community.

Caulfield-Determination

1. Taking all of the above into account the result I reach is that there should be a term of imprisonment prior to the application of the 25% discount of 4 ½ years. After the discount that term is 3 years and 4 months. I make a finding of special circumstances for the reasons canvassed above and will set a non-parole period of two years.
2. As to the start date of the sentence it can start no later than 28 January 2022. In my view given the relatively brief period of imprisonment he was then subject to, that is a 10-month sentence with 4 months on parole and the speed with which he breached that parole the appropriate start date is in fact 28 January 2022.

Russell

1. The offender relied on a report of Dr Calvin dated 26 June 2023. The offender is a 21-year-old unmarried man who lives with his parents and before this offence was employed at a local camping store. I note that he has a very limited criminal history consisting of one occasion of driving whilst suspended and not carrying a licence.
2. His mental health has deteriorated since the offending with symptoms of depression and anxiety. He has not sought psychological therapy but has sought what is referred to as "lay counselling". He is on no medication.
3. He last used cannabis two years ago so that would mean he was not using cannabis at the date of the offence. He has a significant history of binge drinking which has declined recently but he continues to rely on alcohol as a coping mechanism. There is no suggestion that he has sought professional or structured assistance (eg Alcoholics Anonymous) with his alcohol reliance.
4. He was born in Coffs Harbour and there is no suggestion of a background of significant disadvantage. He did experience the death of his grandfather which deeply affected him. A friend suicided which had an understandable impact on him. These deaths are said to have led to unruly behaviour and resort to alcohol. He had regular counselling at school.
5. He left school in year 10. He obtained employment at the camping store and enjoyed fishing.
6. As to the offending he says it was following news of a violent incident involving an unknown individual attacking his friend's father and the report refers to attempts to halt the violence which is not reflected in the agreed facts.
7. His period in custody was stressful, and he refers to his time on bail. Just what those conditions are was not in evidence, but the Crown did not cavil with the submissions that they were onerous and amounted to house arrest unless in the company of a parent.
8. The death of the victim caused the offender deep remorse and distress.
9. Dr Calvin expresses the view that the offender meets the criteria for adjustment disorder which is conceptualised as a maladaptive reaction to identifiable psychosocial stressors. The following paragraph talks about the aftermath of the offence causing an emotional maelstrom and the experience of various mental health symptoms. Earlier stressors namely the death of his grandfather and the suicide of a friend led to reliance on substances that is maladaptive coping mechanisms.
10. The report actually says the offender's binge drinking culminated in the index offence. Of course, by section 21A(5AA) that cannot be taken into account in mitigation and in any event I have difficulty in the simple proposition that the death of a grandparent, and a tragic death by suicide of a friend, leads to binge drinking which in turn leads to behaviour which is the callous hitting of a man on the ground. No doubt his judgment may have been impaired but the responsibility for this conduct rests with Mr Russell. There was no submission made at the hearing adopting the psychologist's view as to causation.
11. That said, the fact that there was alcohol involved is a factor to consider when looking at his prospects.
12. As to the future the report suggests psychological therapy. The prognosis is said to hinge on his ability to persist with therapy and maintain abstinence.
13. With respect it is plain that what is necessary here is a focus on maintaining abstinence above all else. Doubtless there is a connection between the need for counselling and the maladaptive coping mechanism of drinking but there needs to be a proper recognition by the offender that he should not drink at least until he is able to control himself when doing so in both the degree to which he does drink and the way he behaves when drinking.
14. In addition to the psychiatric report there are four testimonials and a certificate of having completed an anger management course.
15. The first testimonial is from a family friend who describes the offender as a caring person and who does domestic chores and helps care for his grandmother. It states that the offender has been remorseful and devastated by the outcome and that the conduct is out of character. An employer for whom the offender did lawnmowing work over the last three years described him as honest and a good young man and also says it is out of character. The owner of Big Country Meats says that the offender has volunteered for half a day on Saturdays. How long this has happened is not clear but it gives a favourable description of the offender and says he is learning about the meat trade. Lastly Stacey and Peter Swane who are local business people say they have known him for over 15 years and consider him reliable and a hard worker and would have no hesitation to employ him. Again they say his behaviour is out of character.

Russell-Submissions and consideration

1. The submissions note the discount for the early plea, the expressions of remorse, and the negligible criminal history. I accept his criminal history does not deny him leniency and would allow him as much leniency as if he had not offended at all.
2. I accept that given the expressions of remorse, the criminal history as described, the supportive family environment as well as support from those around him and his good work history result in the offender having a low likelihood of reoffending and good prospects of rehabilitation. The key to that of course is to rein in his drinking but with those supports and that background and also with a good working history that strikes me as something that is achievable. I also consider that the 23 days in custody and the following bail conditions are likely to have served as a serious and confronting experiences to a person with this background and provide motivation to change his drinking behaviour.
3. In addition to that he has the benefit of the provocation as lessening his moral culpability in the way discussed above. There is therefore a less need for specific deterrence without by any means eliminating that concern. There is also, subject to rehabilitation, a lesser need in the case of Russell to protect the community; his prospects of rehabilitation and not reoffending are markedly better than Mansfield and Caulfield.
4. I also take into account his youth, being 20 at the time of this offending. This supports the offender's submission as to the offender acting impulsively and making an extremely poor choice which I accept.
5. It was submitted for the offender that he has largely addressed the underlying factors of his offending. Whilst there are favourable aspects about the offender in his subjective case the psychological report states he continues to rely on alcohol as a coping mechanism albeit that his alcohol intake has declined. Frankly it needs to stop and it is a concern that more than 18 months post offending the only significant counselling undertaken is to achieve the anger management certificate. The other matters mentioned above however are favourable.
6. The ultimate submission for the offender is that he be sentenced by way of an intensive correction order. That however is not an appropriate starting point.
7. The recognised three stage process in determining whether an ICO may be imposed is first determine whether the section 5 threshold is crossed which is conceded here and in my view appropriately so. Next is to determine the length of the sentence to determine whether or not an ICO is prohibited by section 68.
8. Arriving at an appropriate length of sentence for Russell has taken much deliberation. Prison is to be avoided for young persons unless that course is necessary; see Pham (1991) 55 A Crim R 128, and in my view an extension of that is that any sentence be kept as short as possible. Yet as noted in R v Goundar [2001] NSWCCA 198 at [48] the gravity of the crime must be kept steadfastly in mind.
9. In Shaw v R [2008] NSWCCA 58 in respect of the common law principle of proportionality it was said at [31]: 31 The common law principle of proportionality requires that a sentence should not exceed what is proportionate to the gravity of the crime having regard to the objective circumstances (see Hoare v The Queen (1989) 167 CLR 348 at 354). In McNaughton, the Chief Justice noted that in a line of cases commencing with R v Dodd (1991) 57 A Crim R 349 at 354, referred to and affirmed by a five judge bench in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 at [156]-[158], the proportionality principle is also held to apply so that a sentence should not be less than that which the objective gravity of the offence requires.
10. This is a case below the mid-range of objective seriousness but is an offence with a maximum sentence of 14 years and a standard non parole period of 5 years. The offender, a young man acting impulsively late at night, caused grievous bodily harm to a person who at the time that he was attacked was running away. It was four against one. The offender's subjective case allows for a finding which I make that this conduct is out of character and that the offender has good prospects and in my view is unlikely to reoffend provided he appropriately deals with his alcohol abuse. The purposes of sentencing have been referred to above. Those favourable features allow for a sentence at the low end of a range reflecting the objective gravity of the offence.
11. It is due to the principle of proportionality that the sentence arrived at is one which, by reason of s68 prohibits consideration of an ICO outcome. In my view there should be a term of imprisonment of 3 ½ years before the application of the discount for the guilty plea so that after rounding down the term of imprisonment shall be 30 months. It is therefore not necessary to move to the third step.
12. This result is 1 year less, prior to the application of the 25% discount, than the head sentence imposed on Caulfield arrived at above, and Mansfield (see below). It is arrived at taking into account the principle of parity, referred to above at [79]. These three offenders are equally responsible for the most serious injury suffered by the victim. It is taking the matters into account identified by Gibbs CJ that justify the difference in sentence. The points of difference favouring Russell are his lack of criminal history, that this offence was out of character and an aberration, his supportive family, support outside the family, a good work history, his youth (now 21 with Mansfield 27 and Caulfield 24), and as a product of those matters, good prospects in respect of likelihood of reoffending and rehabilitation.
13. I accept the submission by the offender that there should be a finding of special circumstances, a matter conceded by the Crown. The offender is young, and this will be his first time in custody, and the facts show he will need a lengthy period of supervision to assist him to deal with his alcohol abuse and adjustment disorder. The non-parole period will be a period of 15 months, backdated by 2 months to allow for the 23 days already spent in custody and to take into the more than 18 months of strict bail conditions the offender has complied with.
14. The sentence will therefore be a term of imprisonment to date from 20 May 2023 with a non-parole period of 15 months, expiring on 19 August 2024, and with a balance of term of 15 months expiring on 19 November 2025.

Mansfield

1. Ashley Mansfield was born on 17 November 1995, so he is now 27 years old and not 28 is said in the psychological report. At the date of the offending, he had just turned 26.
2. The history given to the psychologist Dr Dornan who provided a report dated 19 June 2023 was of the the offender being raised by his mother and stepfather. His biological father abandoned he and his mother in his infancy. He has only briefly met his father during his life and suggests his father has a history of abusing substances. He has not seen him at all since 2019.
3. His mother identifies as aboriginal as does the offender and he states that he has a sense of not really belonging to either an indigenous nor nonindigenous community.
4. His mother also abused substances and was a victim of domestic violence by the stepfather, this caused her depression and anxiety. She has a work history intermittently as a cleaner and care worker.
5. His mother escaped his stepfather in about 2005, so when he was about 10 and she would now seem to be abstinent from drugs and their relationship is good. He described his stepfather as angry, drunk and abusive. Mr Mansfield, said his childhood was characterised by persistent domestic violence, his mother's poor mental health and frequent drug use by both his stepfather and mother. He too suffered depression and his early life was not a stable one. He was diagnosed with ADHD and was medicated for that without much affect.
6. The psychologist discusses this suggesting that rather than ADHD it may be childhood trauma that is being evidenced by the symptoms or perhaps a combination of both. This can lead to problems with attention and impulsivity and hyperactivity
7. Once the mother had left the stepfather they moved to Inverell. There was little attention given to the offender's state of mental health and he reports as being always angry. He says his mother's spending on drugs meant they were always short on money for essentials. The offenders' negative behaviours worsened and he became increasingly aggressive towards his mother and felt overwhelming urges of aggression and a desire to make it stop. This is described by the psychologist as fight or flight responses. At the age of 12 he assaulted his mother rendering her unconscious and he himself blacked out. He was then placed into juvenile detention I infer because of the assault.
8. It was whilst he was in juvenile detention that he was sexually assaulted "a few times" by a male youth worker. Subsequently the offender has reported clear symptoms of PTSD.
9. At 13 having spent some time with an uncle who was a caring person he returned to live with his mother but his behaviour towards her was poor. He began associating with an older antisocial peer group and engaged in offending behaviours leading to him being returned to custody at 14.
10. This triggered flashbacks to the earlier sexual assault and his mental health declined and he would be aggressive and violent. On release he again returned to his mother and engaged in increased drug and alcohol use as a maladaptive coping strategy. He self-harmed leading to hospitalisation. He was then periodically homeless or with his mother or couch surfing and described himself as broken at that time. His mother told him to go and live with his father or go back to "juvie". He visited his father who was staying at a known drug house and was otherwise homeless. His father stole his money for methamphetamine. His father injected him with ice. An argument with his partner's mother about cigarettes and her saying that he was just like his father led to him losing it and another return to custody as he chased her with a knife. On release he was a fairly transient person between his mother's new accommodation in Warwick and Tamworth and Coffs Harbour and also custody.
11. Unsurprisingly in these circumstances school was difficult, though just when he left school is unclear. He also experienced bullying. He was expelled it would seem in about year 8 and there was an ineffective attempt at home schooling.
12. He gained employment at a timber business but resigned after an argument. A cleaning job lasted less than a month. His drinking increased and he could not sustain employment. He had some stable employment with a carnival.
13. Presently in custody he is employed as a sweeper. He has plans to gain certificates for panel beating and spray painting and had previously undertaken mechanics course at TAFE but dropped out because he thought police were searching for him which was not the case
14. Whilst in custody he has completed a domestic violence course, and a healthy body healthy minds course. He wishes to do the EQUIPS addiction course. He has a daughter about 12 years old but has not had contact since she was about 3. That child and her mother lived in Inverell. He had a relationship for about eight years which ended with domestic violence perpetrated by him. There was also a partner with whom he had a second child with whom he has little if any contact
15. His current partner and he have five children together and he has some contact with his children of that partner.
16. He started smoking cannabis at about 14 and also alcohol. His alcohol consumption escalated to being a carton of beer a night as well as two cartons of premixed vodka drinks. The use of ice started with his father injecting him as noted above. He has been abstinent from ice for a number of years. He also has a gambling addiction.
17. He has attempted rehabilitation in the past and completed three months at Adele House. This seems to have been effective for drugs but he lent on alcohol as a coping strategy he says he wants to engage in the buprenorphine programming custody which suggests that his drug reliance is still an issue.
18. It is said he has good insight into his alcohol use and that he has swapped one habit for another again suggesting drugs may be under control. He believes he requires further rehabilitation and it is a positive that he understands the need for intervention and I infer desires it.
19. Based on the information available the psychologist states the offender meets the criteria for alcohol use disorder severe in early remission in a controlled environment; cannabis use disorder moderate in sustained remission; stimulant use disorder severe in sustained remission and gambling disorder moderate episodic. Later in the report the psychologist expresses the opinion that the offender meets the criteria for a diagnosis of persistent depressive disorder, PTSD and ADHD as well as problematic personality traits consistent with a personality disorder and antisocial and borderline features. The problematic traits include failure to obey laws, impulsive behaviour, aggression and a blatant disregard for others safety and a pattern of irresponsibility since adolescence. The prospect of perhaps also having a bipolar disorder was raised but is not conclusive.
20. He described the offending as "I got drunk, a friend needed help and I assaulted someone". He expressed remorse for his behaviour and shame. At the second day of the sentencing hearing a note that he had written was tendered where he, having heard the victim impact statement on the first day, again expressed his apology and regret and remorse.
21. As to his criminal record it was acknowledged and said to be largely a result of his drug use. Consistent with the history recounted above it commences in the children's Court when he was 12. In 2014 so at the age of 19 there is a charge of common assault dealt with by way of a bond. In 2017 there is a weapons charge dealt with by way of a fine. In 2018 there is an assault occasioning charge again dealt with by way of a bond, though that was subsequently called up and a four-month term of imprisonment imposed. Also in 2018 was the second assault occasioning for which he received an aggregate 10-month term of imprisonment with a four-month non-parole period dealt with together with a contravene AVO. In short there has been consistent offending over the past 10 years as an adult much of it in the nature of assault, intimidate and breaching apprehended violence orders. That criminal history is in line with the aggressive characteristics of the offender outlined by the psychologist.
22. Based on this material which is not the subject of challenge it can be seen as the psychologist outlines at [88.7] of the report that the offender has experienced a range of adverse childhood events including exposure to domestic violence, sexual abuse, neglect, parental substance abuse, parental mental illness, parental separation and parental rejection. These adverse childhood experiences (ACEs) can have lasting effects on the developing brain. It also impedes the development of healthy relationships and I infer the development of the personality traits outlined above at [164]. It also increases the risk of developing psychological disorders of the type developed by the offender
23. As to insight the offender did not seek to blame the victim and as already noted he was very remorseful towards the consequences suffered by the victim he has expressed what appeared to be genuine remorse.
24. When asked as to whether custody would be more onerous for the offender the view was expressed that the controlled environment will give him an opportunity to remain abstinent from drug use but on the downside will do little to assist in building resilience or patterns of behavioural management once released.
25. As to his risk assessment the level of service industry test put the offender in the high risk/need level further testing had the same result
26. As to treatment it was recommended the offender attend a residential drug and alcohol rehabilitation program. This was considered as being a necessary first step before implementing other recommendations. Those other recommendations are counselling to provide support from relapse, engaging with his GP to assist in providing assistance with his alcohol use disorder and the regular review by psychiatrist in relation to the effectiveness of medication. In custody he should seek help through Justice Health. A primary need however is for psychological treatment.
27. There was a further report of Dr Dornan dated 7 July 2023 and headed "addendum report". The psychologist had been provided with medical records of the offender to consider which he did. He states they raise a number of issues not raised by the offender including his experience of auditory and visual hallucinations when 17. He notes also references to periodic blackouts which weren't discussed in the assessment (apart from I would note the occasion when he assaulted his mother). This he says supports the diagnosis of PTSD.
28. The additional material did not alter the overall opinion; the psychologist says they reinforced the fact that the offender had experienced significant periods of mental ill-health for much of his life. The material also added weight to his view of a possible bipolar disorder.
29. The conclusion was the records support a view that the offender's capacity for cognitive functioning had been impaired for a number of years. It has a negative effect on his capacity for decision-making and consequential reasoning and a reduced capacity for various matters including executive functioning.

Mansfield-Submissions and consideration

1. At the outset it should be remembered that Mansfield is the only offender for whom there is another matter to consider beyond the section 35 charge namely a section 13 charge to be dealt with on a form 1.
2. In the Crown submissions there is no contest as to the 25% discount.
3. The Crown notes the criminal history including for personal violence offences.
4. The Crown relies on the fact of the offender being on conditional liberty at the time of the offending. Whilst that is true that was because he was on a nine-month conditional release order for possessing a prohibited drug and not because of a community correction order.
5. The Crown submits that the offender's hostile disposition is demonstrated because he ran back to the scene threatening to kill the victim and also because of his form one offence where he was threatening to a neighbour. That submission is a fair reflection of the facts, but care needs to be taken in determining just what happened at that point. A number of people who are not identified make statements such as "Move cunt" and "wake up wake up" and finally "stop he needs an ambulance" suggesting albeit indelicately that attempts are being made to revive the victim rather than to further hurt him, and albeit perhaps reluctantly there is an element of concern being demonstrated towards the victim.
6. The Crown argued that the provocation argument was not made out on the facts. As discussed above I accept that it is; with the facts of Smith as a guide provocation is well made out with the effect as discussed above. The submission that nobody else knew about Ward being assaulted by the victim other than Bridge-Johnson who spoke to Ward on the phone is comprehensively laid to rest by paragraph 30 of the facts where Ward says that Mansfield is coming down. The inference is well open that the other two were also made aware by Bridge-Johnson of what had occurred.
7. The Crown relies on the earlier events of the evening to give the context of what occurred and I have taken that into account in assessing objective seriousness.
8. As to the subjective case it is accepted that there are factors that have been detrimental to Mansfield's development but in line with [44] of Bugmy it is a matter of degree to what extent that is connected to offending or mitigates the conduct and needs to be balanced against other factors such as the purposes of sentencing set out in section 3A.
9. The Crown argued that the nexus between the offence and any mental illness had not been made out.
10. It was conceded that it was an appropriate case refining the special circumstances.
11. The submissions for the offender argued that the court should find that the offender has had a development in a disadvantaged background. The evidence is overwhelming to establish that and to a significant degree. There is a range of matters that have occurred to the offender in his development of significant social disadvantage as set out above. The defendant relies on those matters; at the risk of repetition and without being exhaustive, the offender relies on the evidence that shows, and I accept that he has experienced paternal desertion and was then left with a mother with substance abuse and mental health issues and who was the victim of significant domestic violence by the subsequent partner and stepfather of the offender. The life of the offender was unstable from an early age including the serious assault by him of his own mother that saw him go into custody at the age of 12. His education was disrupted, and the writing seen on what became exhibit M3 clearly shows he has very poor writing skills and I would infer poor spelling and reading skills. He was exposed to drug use and commenced alcohol and drug use himself at an early age. The evidence clearly allows for a finding that he has suffered mental health issues since at least 2013 and in my view most likely before. In addition to that he was a victim of sexual abuse when in custody.
12. The question as to whether there is a causal link between such a background and the commission of a particular offence in question is one which should be viewed in a fairly broad way. In some cases of mental health where a person may have a psychotic episode and act in a way that they do not know what they are doing there would be a clear link between that person's mental health and the assault occurring during such an episode. On a broader view a person with the offender's background, who according to the addendum report of Dr Dornan has a reduced capacity for problem-solving skills and information processing and whose capacity for decision making and consequential reasoning has been negatively impacted, the connection between the disadvantaged background and the offence in question is not so direct, but no less obvious. In my view there is clearly a causative link between the offender's background, his mental health and his addiction to drugs and alcohol, and his decision to carry out this offending.
13. It follows that in line with Bugmy there is a reduced moral culpability in the case of this offender. This is in addition to the reduction of moral culpability due to provocation as discussed at [35] above. That factor has not been taken into account, was not taken into account is reaching the assessment of objective seriousness but is taken into account at this point in line with that discussion. Further by reason of that and also his mental health state he is not an ideal vehicle for general deterrence.
14. I also accept the submission which is to similar effect as the above of the offender based on the passage of Justice Simpson in both Henry and [348] and also from Millwood at [69]. Those reasons, like the reasoning in Bugmy, justify findings of reduced moral culpability and allow for greater leniency in sentence, though those favourable findings need to be taken into account in an overall fashion so as to not in effect err by way of double counting the effect of such factors.
15. In so far as the above findings relate to his state of intoxication at the time I note section 21A (5AA) and do not take it into account in itself as a mitigating factor but take into account as being linked to his disadvantaged background. It is also relevant in considering his prospects and likelihood of reoffending.
16. The offender because of his mental ill-health also has available the propositions set out in De la Rosa. This adds weight to the impact on the lesser need for general deterrence and further lessens the offender's moral culpability. I also take into account that custody is likely to be more onerous. The passage at [177] also refers to the need that may be heightened to protect the community which it plainly is in this case.
17. As to the offender's criminal record the point is made that the last matter involving assault was in 2019 so nearly 3 years before this offending which is an encouraging observation. On the other hand, this offence is an escalation in the seriousness of his violence.
18. According to Dr Dornan there is a high risk of reoffending. There is a need for the comprehensive program of treatment and counselling that he sets out in his report.
19. As to prospects I accept that the offender has shown some insight. His attempt to express some contrition and remorse to the victim's parents through a note was heartfelt. He has accepted responsibility and a desire to have intervention. Notably Dr Dornan says he did not seek to blame the victim in any way or to minimise or justify his behaviour.
20. Mansfield is now 27. His current state of mental health and his current capacity to function appropriately in society is a great concern. To put it generically he lacks life skills and reacts to difficulties by maladaptive coping mechanisms which are destructive and based on addiction and leads to violence. This has come about due to the horrendous environment in which he grew up.
21. The purposes of sentencing which need addressing in this case have been identified above. Yet in the case of Mr Mansfield there should be less weight given to the need for deterrence and greater weight given to the need for rehabilitation but at the same time there is plainly a significant need to protect the community.
22. There was no argument that the only appropriate sentence in this matter is for a term of full-time imprisonment and I note that he has been imprisoned now since 29 November 2021. The consequences of his behaviour cannot be clouded over; they caused grievous bodily harm, that is, very serious injury. The full extent of the consequence of his actions cannot be determined beyond reasonable doubt beyond the fact that they were grievous bodily harm due to the intervention of Ms Fitzgerald but the facts remain he with the other offenders is responsible for causing grievous bodily harm.
23. I note the maximum sentence and the standard non-parole period. I also note the form 1 matter of intimidation and take that into account, though the circumstances of that offence, whilst confronting, were fleeting and are not of significant impact.
24. I also take into consideration the principle of parity. In assessing parity, it needs to be recognised that when considering subjective cases such as those in the cases of Mansfield and Caulfield it is not a precise science. Nevertheless, I note that in relation to Caulfield there are obvious differences in their subjective cases. The personal background of Caulfield is one of in broad terms great trauma but in my view the circumstances of Mansfield are of even greater disadvantage. Further there has been a finding of a causal connection between that background in the case of Mansfield but not in the case of Caulfield. Although it was not put arguably a reasonable argument could be put to that effect on behalf of Caulfield, but the causal connection would not in any way be as strong as what I have found it is with Mansfield. There is in both their cases a very strong need to protect the community. Ultimately however in order to translate the findings as to lesser moral culpability and the need for leniency that arises from Mansfield's disadvantaged background, I have arrived at a lesser sentence for him than was arrived at for Caulfield.
25. The period of imprisonment prior to the 25% discount should be 4 years so that it is 3 years after the discount and rounding it down. Due to the obvious need for an extended period of supervision to assist with the rehabilitation programs proposed for the offender there should be a finding of special circumstances. The non-parole period will be 21 months.

Caulfield

1. Joshua Caulfield is convicted of the offence of recklessly causing grievous bodily harm in company in breach of section 35(1) of the Crimes Act 1900.
2. The offender is sentenced to a term of imprisonment with a non-parole period of 2 years to commence on 28 January 2022 and expiring on 27 January 2024 with a balance of term of 1 year and 4 months expiring on 27 April 2025.

Russell

1. Daniel Russell is convicted of the offence of recklessly causing grievous bodily harm in company in breach of section 35(1) of the Crimes Act 1900.
2. The offender is sentenced to a term of imprisonment with a non-parole period of 15 months, to date 20 May 2023 and expiring on 19 August 2024, and with a balance of term of 15 months expiring on 19 November 2025.

Mansfield

1. Ashley Mansfield is convicted of the offence of reckless grievous bodily harm in company in breach of section 35(1) of the Crimes Act 1900.
2. The offender is sentenced to a term of imprisonment, taking into account the form 1 matter of intimidation, with a non-parole period of 21 months to commence on 29 November 2021 and expiring on 28 August 2023 with a balance of term of 15 months expiring on 28 November 2024.

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: 08 September 2023