R v Coffey

[2012] NSWDC 282

District Court of NSW|2012-05-04

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Court

District Court of NSW

Decision date

2012-05-04

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

sentence 1This is the sentence of Leo Coffey. Starting in late December 1995 Leo Coffey has been before the Local Court on twenty-three occasions for breach of an AVO or offences of physical violence. On three of those occasions police officers appear to have been his victim. On nineteen occasions it is likely his partner was the victim. 2The facts and circumstances are all too familiar. Coffey has a long history of abusing alcohol and cannabis. He drinks and smokes daily, usually until he blacks out. 3On 21 April 2011, he and his partner were both drinking heavily. He began to argue with her; he cannot even remember what started it. His predisposition to generalised violence is exacerbated when he is intoxicated. His violence in the early hours of 22 April 2011 was unremitting and brutal. He does not remember assaulting his partner Annette. When aroused by police later that morning, he saw the bedroom walls and floor were blood splattered. He remembers thinking "I hope I haven't done something stupid." 4Not only was his conduct stupid, it was seriously criminal. Today he is to be held accountable for recklessly causing grievous bodily harm to Annette. 5As sentencing judge it falls to me to determine a number of competing tensions as I strive to determine the appropriate sentence for this offence before this Court, committed by this offender, harming this victim in the community of Brewarrina, see Gladue v The Queen [1999] 1SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to the offender; that is called subjective matters. The starting point for these assessments requires me to make findings of fact from the evidence before the Court relating to the offence and to the offender. My fact finding task has been circumscribed in that the parties have tendered an agreed set of facts to which I shall shortly return. It is sufficient at this point that I remind the Court a judge is not a party to the agreed set of facts. The tender of agreed facts does not relieve the judge from his fact finding task, it simply limits the material from which facts may be found. To the extent, if it be the case, that the facts as agreed do not reflect the actual events that occurred, it must be remembered that a court can only find facts from the evidence placed before it. 6Before any sentence that can be made there are likely to be technical questions relating to general deterrence, discounts, whether special circumstances are to be found, whether the offence attracts a standard non parole period and if so the length of the parole period, and finally of course the ultimate term of imprisonment to be imposed. None of those can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against an imperative that sentencing should have as its primary focus, the protection of the community will also need to be determined, see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

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AGREED FACTS 7The victim Annette was aged thirty-eight years at the material time. She was involved in a personal relationship with the offender; he was then forty-six years of age. He lived at Bathurst Street, Brewarrina. She lived both at that house, at his house and at her sister's home in Cato Street, Brewarrina. 8On the afternoon of Thursday 21 April 2011 she was at the Bathurst Street residence, as was the offender, John Scott a brother of the victim, Marie Murphy a sister of the offender and Wayne Gordon AKA McHughes. Some alcoholic drinks were taken by the offender, the complainant and other adults. At about 6.30pm all five left the house for a hotel in Brewarrina. Upon arrival at the hotel Coffey began to argue with the complainant. His grief was that she had "slept with" her nephews. Scott stayed at the hotel for a short time and then left alone. After about ten minutes at the hotel the offender and complainant returned to the Bathurst Street house. She was affected by alcohol at that point saying later that she was "pretty drunk". 9After they went inside he maintained his complaint about her nephews. She was fully clothed. He punched her in the face and kicked her. When they were in a bedroom she noted blood coming from her face. He gave her "a good hit to (her) head". She lost consciousness and ultimately woke up in the bedroom "in a pile of blood". About 1am Wayne McHughes, who also lived in the house, heard her call "help me". He got out of bed and went to the door of the room occupied by Coffey and the complainant. McHughes knocked on the door. He said, "Stop hitting her." He heard the offender say, "Yeah I'll stop hitting her." Someone in the room turned on some music. I am satisfied it was not the complainant. McHughes said, "Stop it or you'll get locked up by the coppers." McHughes went back to bed; he did not see the complainant. 10Marie Murphy, who was sleeping with McHughes, also heard the complainant call for help. Murphy stated that she and McHughes went to the door of the room containing the offender and complainant four times. Murphy pushed on the bedroom door but was unable to open it. She could see through a slight opening that a mattress was pushed against the door. When the complainant woke she noticed the clothing on the lower part of her body had been removed. She went to the toilet. About 5am it was still dark. The offender's sister, Mayanne Coffey came to the front door of the house. She spoke to the complainant and told her to "Go straight to the police." 11I pause here to say how impressed I am at Aboriginal women who know that the remedy for violence to them and to their sisters is intervention by the police. The certainty of detection is the best deterrence for domestic violence. 12I continue with the agreed facts. The complainant spoke to Marie Murphy, who noticed that the complainant was injured and told her to go to the hospital. The complainant left the house, walked to the police station. There she pressed the emergency alert to summon a police officer. She sat down to wait. William Trapman walked by the station between 5.30am and 6am. He saw her. She was, to him, obviously significantly injured. She complained that she had been kicked and said, "He jumped all over me." She identified her assailant. 13Trapman waited with her until Constable Schofield arrived at the police station, some time after 5.30am. He saw her sitting on the step of the police station. He saw she was suffering a serious laceration to her right temple near the eye. Her right eye was swollen, the right side of her face badly swollen. She was whimpering and crying; an ambulance was summoned. Constable Schofield took three photographs. They have been exhibited before me. 14The ambulance officers took her to the hospital where she was examined by Dr Hameed at about 11am. He recorded the complainant suffered the following:

a four centimetre deep laceration involving the superficial and deep skin in the lateral angle of the right eye. This laceration was about half a centimetre wide;
a black eye on the right eye, her eyeball was undamaged and vision intact;
minor abrasions on both upper eyelids and at the root of the nose;
minor contusions in the left upper chest, right arm, upper abdomen and both shoulder blades;
fractures in the right sixth, seventh and twelfth ribs; and
fractures of the left sixth and tenth ribs. The latter fractures were revealed by x-ray examination. 15Further photographs were taken at the hospital. They show that the left eye has redness close to the iris and bruising on the upper zygoma from the nose through to the outer aspect of that cheekbone. 16At 6.30am police attended the Bathurst Street residence. They went to the bedroom occupied by the offender and complainant. There were bloodstains on two walls of the room and on two mattresses in the room. The offender was present. He "smelt strongly of alcohol and appeared to be intoxicated". There were, what appeared to be blood stains on his hands. He declined, as was his right, to be interviewed. 17Dr Dalgetty, a female, made an intimate examination of the complainant later in the afternoon. She recorded the complainant suffering from the following:
bilateral periorbital bruising with the right eye closed by swelling and a left subconjunctival haemorrhage;
bruising and swelling to the upper lip and gum;
four areas of bruising, approximately three by four centimetres around the jaw;
a full thickness laceration to the right temporal area, bruising and swelling over the dorsum of both hands;
on the upper arms and shoulders, ten bruises, the longest of which was eight by ten centimetres and which had a central abrasion;
on the anterior chest an area of bruising, fifteen centimetres by ten centimetres;
over the umbilicus an area of bruising eight centimetres by eight centimetres with overlying abrasions;
three abrasions over the legs posteriorly - that is the back of the legs;
a red raised semi circular area on the right side of the mons pubis;
redness and swelling to the clitoral and periurethral area and to the left labia - that is around the vagina area;
extreme tenderness at the introitus; that also is around the genital area. 18Dr Dalgetty opined that the facial laceration would leave permanent scarring. See the attached photograph which I have before me. 19Dr R A North, a medical practitioner and formally a general surgeon with more than fifty years post graduation medical experience, was engaged by the prosecution to offer an opinion about the magnitude of the injuries suffered by the complainant. After considering all of the material Dr North opined that: "Her rib injuries evidence severe trauma having been inflicted. As the victim is thirty-nine years of age and her rib density and strength would still be that of a young person, quite severe force would be required to cause fracture...I consider severe trauma to have been inflicted causing a deep facial laceration and fracture of five ribs. This would require considerable force such as that sustained in a motor vehicle accident." That is, to spend a night with her boyfriend was as damaging to her as a motor vehicle accident. 20The offender has been in custody on this matter only since he was arrested on 21 April 2011. The offender was committed for trial on the present count on 15 August. The case was listed for trial on 12 December 2011, however the offender was arraigned before Acting Judge Lerve on 9 December 2011 when he entered a plea of guilty.

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OBJECTIVE CRIMINALITY 21From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offences, an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the case before the Court with criminality of offences of a similar kind, including a notional worse case, bearing in mind the maximum penalty. It is in this way that the objective seriousness of the criminality of this offence can be evaluated. The objective criminality has an important impact upon the overall sentencing outcome. 22Any assault of the kind I am dealing with here constitutes what is called a trespass against the person, that is an injury committed with violence. All persons have a right to the physical integrity of their person and body. This trespass or wrongdoing was physical violence of a disinhibited and sustained kind. On four occasions during its occurrence McHughes and his partner went to the door of the bedroom where the merciless beating was ongoing. The offender was told to stop. I am satisfied he understood and said he would stop hitting her, but turned the radio up or the music up so that the music would drown out his continued assault upon her. 23Annette was drunk. In the bedroom she was hit in the face and became unconscious, whether as a result of a blow or a combination of the blow and the affects of alcohol I am unable to say. I am satisfied beyond reasonable doubt that she lost consciousness shortly after calling for help. During her period of unconsciousness the offender must have continued to strike her, although for how long I am unable to say. 24I note there are injuries to her ribs, no doubt caused by blows of some kind from the offender. There is evidence before me, agreed evidence, that he kicked her. He could not on one kick have broken all of those ribs there must have been repeated kicking. The complainant must have been unconscious at that time, because she makes no complaint as to how these rib injuries occurred. 25The clothing on the lower part of her body was removed and further injuries sustained to her genital area. She has no idea how those injuries occurred. Those injuries must have been not only painful, but deeply humiliating for her after the event, and deeply worrying for her after the event. 26I have reviewed the injury tally. It is extensive, by which I mean at many sites over her body. Frequently grievous bodily is confined to one or two sites this is not this case. From head to torso and stomach and the back of the legs, the arms and the vaginal area were all substantially injured. 27The level of recklessness was high. That is to say this was not a case where there could have been any possibility the victim was consenting to any of this brutal conduct. 28Notwithstanding his level of intoxication he must have turned his mind to the real likelihood that the injuries being occasioned by him as he continuously physically pummelled the complainant, torso and head would, if he continued amount to really serious injuries to her, but even so he persevered with his aggressive and hostile conduct towards her. That constitutes a high level of recklessness. 29This violence occurred in a domestic setting in circumstances where she had every right to look to him for care and protection. That situation adds to his criminality. That this offence was against a woman, who, as nature would have it, was less powerful than he, marks this offence as a significant abuse of his physical power over her.

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VICTIM IMPACT STATEMENT 30I have received a Victim Impact Statement. The material contained in the Victim Impact Statement is not sworn evidence and has not been subject to cross-examination. To the extent that any opinions may be expressed in it I recognise they are not the opinions of an expert. 31The Victim Impact Statement coming as it does from the primary victim may, if I accept it as reliable, provide unsworn evidence as to the facts of the offences and their affect upon her. 32The function of statements such as this one is firstly to give victims an opportunity of being heard in the sentencing proceedings by publicly identifying the impact of the trauma visited upon them by the actions of the offender. 33Secondly, it enables sentencing proceedings to assist victims as they move towards some closure of grief, resentment and brooding arising from the criminal conduct of an offender. 34Thirdly, the Victim Impact Statement contributes to an offender at least hearing first hand and perhaps gaining some insight into the impact his offending conduct has had upon his victim. 35Finally, of course, Victim Impact Statements, as they are read by judges in sentencing proceedings remind judges of the impact crimes such as this one have upon the ordinary men and women who are the victims of that crime. 36Annette says this: "Since being assaulted by Leo Coffey I have not been able to sleep properly as every time I close my eyes I see him (I think it might be) poking me. I have nightmares about it. My head" - I think it might be - "aches regularly. I regularly get headaches which my ribs ache regularly. I regularly get headaches which I have to treat with Panadols. Since then" - that is since the assault - "I drink alcohol a lot more, because that's the only way I can a sleep. If and when Leo Coffey gets released from gaol I don't want him back in Brewarrina as I am frightened he will come back and get me." So here is a woman well after the assault living in fear of the offender.

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MENTAL HEALTH 49He was first diagnosed with depression in 1993 after the break up with his first partner. 50He has engaged in self-harm in the past and it would seem in the present. There has been at least one past attempt at suicide by hanging. His current practice of self-harm is head butting against a wall. 51Testing by Anna Robilliard indicated severe depression. 52Importantly, it is Dr Bench's opinion, also retained by the defence, that his current medication regime for depression is sub-therapeutic. Dr Bench urged his anti-depression medication dosages be reviewed. Dr Bench opined he met the diagnosis of schizophrenia and has done so for the past five or six years. 53Regrettably in the community he is not medication compliant, but he does find it easier to comply in custody. 54Dr Bench said he also meets the diagnosis of polysubstance abuse. 55I shall review his drug and alcohol history shortly. 56Although not a mental health issue, testing by Ms Robilliard achieved an IQ score of seventy-eight putting Coffey in the below average range with a percentile rank of seven. 57As to his personality profile Ms Robilliard observed: "...[Coffey]...appears to have a well entrenched and generalised violent disposition... [his] violent interpersonal behaviour is exacerbated when he is intoxicated and this has been a long time and well entrenched feature of his behaviour." 58In respect of the interaction of these last two features, together with gross alcohol consumption, she makes a general observation from research and studies, suggesting "That low IQ mitigates against effective problem solving and increases the likelihood of consequent interpersonal misunderstanding making these individuals more vulnerable to the negative consequences of alcohol. While IQ cannot be altered controlling the use of alcohol maximises the individual's cognitive capacity for rational thinking and behavioural control." 59Dr Bench reported the offender denies experiencing any psychotic symptoms around the time of his offending. Dr Bench opined "No direct conclusions can be drawn as to any links between his mental health and offending behaviours." 60Dr Bench did note, however, that: "As a consequence of intoxication Coffey's judgment would be grossly impaired, he would have lacked all impulse control - or ability to reason as to the seriousness and consequence of his actions." 61It will be seen that as a consequence of the guilty plea and my view of the level of recklessness, earlier stated, I have rejected the doctor's opinion that the offender "lacked all ability to reason as to the seriousness and consequence of his actions." I accept, as does the charge, he may have some level of impairment to his capacity to reason.

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SETTING THE SENTENCE 82The maximum penalty for this offence is ten years. It has a standard non-parole period of four years for an offence falling in the mid range of seriousness. Bearing in mind the objective criminality as I have described it and the subjective circumstances as I have found them to be, but for the plea of guilty I would have set an overall sentence of four and a half years imprisonment. That is to be discounted by 17.5 per cent which amounts on my calculations to nine and a half months. The effect of that discount then is to reduce the penalty I would have imposed from one of four and a half years to one of three years, seven and one half months. 83This is a case in which special circumstances should be found. My finding is predicated upon my recommendations to the Parole Board set out under the heading of Rehabilitation Prospects, and in particular, one suggesting at least six months in full time rehabilitation and twenty weeks of the Probation and Parole Domestic Abuse program. 84Leo James Coffey, you are convicted that you on or about 21 April 2011 at Brewarrina in the State of New South Wales did recklessly cause grievous bodily harm to Anita, whose last name is known to you. For that offence you are sentenced to a non-parole period of two years to date from 22 April 2011 and to expire on 21 April next year. The balance of term will be one year seven months, which on my calculation will expire on 6 December 2014. 85Mr Coffey, can I tell you this, that in the normal course of events, if I set a sentence of three years or less I can order your release to parole. When I set a sentence, as I have here, that is more than three years, namely three years and seven months, even though I have fixed a non-parole period of two years, I cannot order you released to parole. You must satisfy the Parole Board that you are eligible for parole. Do you understand me so far? 86OFFENDER: Sort of, sir. 87HIS HONOUR: Right. Your earliest release date is on 21 April next year. Do you understand that much? 88OFFENDER: Yeah. 89HIS HONOUR: All right. I cannot release you, you have to persuade the State Parole authority to release you. Do you know who they are? 90OFFENDER: Yeah. 91HIS HONOUR: All right. So they will be the people who will make a decision to release you. There are two things they are interested in Mr Coffey. The first is, will you be a danger to yourself? What will inform their decision as to whether you will be a danger to yourself, in your case, is the likelihood of resuming alcohol consumption, or the likelihood of resuming drug consumption. Right? 92OFFENDER: Yeah. 93HIS HONOUR: The second that they are concerned about is, will you be a danger to somebody else? What is likely to inform their decision about that is the likelihood of you resuming alcohol, the likelihood of you resuming drugs, and whether you have done anything while you were in custody to address domestic violence abuse. Your best bet to persuade them that you should be eligible for release - that is, that you would not be a danger to someone such as your partner - is to do the domestic violence programs that I have made reference to in my remarks on sentence. 94OFFENDER: Yeah. 95HIS HONOUR: To do something about drugs and alcohol and attending drugs and alcohol programs while you are in custody. All right? 96OFFENDER: Yeah. 97HIS HONOUR: I just tell you that if they do not release you on the first time you go before them you will have to wait another twelve months, another year, before they will review your case. So it is important that you get yourself ready to persuade them that you are eligible for release and to get yourself ready by 21 April next year. Okay? 98OFFENDER: Yeah, I feel certain. 99HIS HONOUR: No doubt your solicitor might talk to you later when I am finished. 100Is there any other matter Madam Crown? 101BARNES: No your Honour. 102HIS HONOUR: Mr Styles? 103STYLES: No your Honour. 104HIS HONOUR: That completes the sentencing and you may return to custody. Any other matter? 105BARNES: Your Honour I was asked to provide two clean copies of the defence reports. 106HIS HONOUR: In what matter? 107BARNES: In this matter. 108STYLES: In the matter of Coffey. I don't know the reason, but-- 109HIS HONOUR: I can tell you the reason. The reason was I used the ones I had as working copies and then when I finished using them, because I was reading them I began to mark them, forgetting that they were marked as exhibits. 110STYLES: Of course your Honour, those are the copies, there's no objection to those going with the Court papers. 111HIS HONOUR: Thank you, I've got them from both sources, but that's all right.