HIS HONOUR: Matthew Darrol Davis, Rebecca Joy Smith and Daniel Keith Charnock appear today for sentence in relation to offences which I will outline in a moment. Unfortunately, I cannot sentence Mr Charnock today. The proceedings relating to these sentence matters started yesterday, sometime after 10.30, after I had given a judgment in another case, and they proceeded throughout the day, up until 4pm. There was a great deal of material provided to the Court, not only as to the Crown case but as to the defence cases. In fact, I took the opportunity, having viewed some CCTV footage, to undertake a view at the location of the offences for which the prisoners are to be sentenced. I have reflected upon the matter overnight and I have concluded I can sentence Mr Davis and Ms Smith today but, for the reasons which I outlined to the learned counsel for Mr Charnock and learned counsel for the Crown, as well as the other two learned counsel, I cannot proceed with Mr Charnock's matter today. Because there is so much of the case concerning Mr Charnock interconnected with the cases of the other two people, particularly Mr Davis, having regard to the evidence including the facts that have been tendered, many of the remarks I make now are obviously relevant to and will be considered in the sentencing of Mr Charnock at a later time. In due course I will be adjourning Mr Charnock's matter to obtain the remarks of her Honour, Judge English. Even if I got them today, I would still have to sit down and read them and think it through. I probably could not sentence Mr Charnock even later this afternoon.
There is one other feature of the matter that I need to point out. In circumstances I will outline in a moment, one of the victims particularly has suffered, what was said from the bar table at one point, "catastrophic" injuries. It is important to appreciate in the sentencing of offenders, whether it is for this type of offence or for motor vehicle offences that cause death or grievous bodily harm to victims, that the sentence imposed upon a particular person for a particular crime, whilst it is required to consider the objective facts of the matter, must, as the law provides, take into account many other matters in addition to the objective facts. Some of which may mitigate what would otherwise be an appropriate sentence. As anyone listening to my remarks on sentence now will soon appreciate, the area of sentencing with which we are concerned is a very, very complex area and I would be doing a great deal of disrespect to the legislation that relates to sentencing and the decisions of the Court of Criminal Appeal that touch upon this matter, and the High Court for that matter, if I did not refer to particular matters, sometimes at some length. It would be a disrespect, too, to the cases that have been conducted by the Crown and the learned counsel for each of the accused and their very helpful submissions. A good example of that is the bundle of submissions provided by Mr Glissan QC which runs to 22 pages but deals with many, many topics which I am required to take into account. The fixing of the sentence, ultimately, is not a reflection only of the Court's view of the consequences of the conduct of the respective prisoners.
Matthew Darrol Davis, who I will refer to hereinafter as Davis, with no disrespect to him, pleaded guilty at an earlier sittings of the District Court at Queanbeyan to two charges. Count 1 was that he on 9 August 2014 at Queanbeyan in the State of New South Wales, did recklessly wound Michael Hancock. This is an offence contrary to s 35(4) Crimes Act 1900. It carries a maximum penalty of seven years imprisonment and has a standard non-parole period of three years imprisonment. He also pleaded guilty to a charge alleging that, on the same date and at the same place in the State of New South Wales, in company with Daniel Keith Charnock and Rebecca Joy Smith he recklessly caused grievous bodily harm to Andrew McInnes. This was an offence contrary to s 35(1) Crimes Act 1900. It carries a maximum penalty of 14 years imprisonment with a standard non-parole period of five years imprisonment. This charge is a common charge to that alleged against Daniel Keith Charnock. The charge brought against them in this respect is identical. Mr Charnock faces one charge, that is, the charge relating to the victim Andrew McInnes. Obviously, the charge to which he pleaded guilty carries the same maximum penalty and standard non parole period.
There is, in the context of the plea entered by Ms Smith, to my mind some inconsistency or tension between the respective pleadings and, in fact, having paid very close heed to the evidence and viewed the video and examined the plan of the scene, having attended the hotel where all the relevant events occurred over a period of a few minutes at the most, I am quite convinced, ultimately, that the aspect of Ms Smith being in company with the other two offenders, in respect of the conduct to which they have pleaded guilty, is somewhat problematic. But, ultimately, it is a matter that will be reflected in my fact finding.
Rebecca Joy Smith pleaded guilty to a charge alleging at the same time and at the same place she did cause grievous bodily harm to Andrew McInnes with intent to cause grievous bodily harm. This is a crime contrary to s 33(1)(b) Crimes Act 1900. It carries a maximum penalty of 25 years imprisonment with a standard non-parole period of seven years.
So far as Mr Davis is concerned, he has effectively spent no time in custody. He was arrested on 20 August. One day of custody is his entitlement, as I understand the coversheet.
Likewise in relation to Ms Smith she was arrested, as I understand the matter, on 20 August according to the Crown's "Sentence Summary", and that amounts to, effectively, although it was no doubt less than a day, one day in custody.
Mr Charnock, who is not for sentence today, appears from custody. The other two offenders appear from bail. The reason Mr Charnock is in custody is that although he was arrested, as I understand it, on 21 or 22 August and charged in relation to the current matters, he was then on bail in relation to drug supply charges and related matters for which he was sentenced at the Queanbeyan District Court on 14 December 2015. The sentences imposed upon that offender exceed six years and he is currently serving an effective non-parole period of four years, to expire in 2018. As I have already explained, I will have to deal with Mr Charnock at a later time.
I turn to the facts of the matter. To put the matter in some context, Ms Smith was in a domestic relationship with her victim, Mr McInnes, for a number of years. I will go into the detail of their relationship when I deal with the evidence, particularly from the report relating to Ms Smith's psychological circumstances. They separated, as I understand it, in early 2013 and Ms Smith entered into a relationship with Mr Davis at about that time or some time shortly afterwards. Mr Davis and Mr Charnock, as I understand it, are both friends. Mr Davis, at the time of commencing his relationship with Ms Smith, was separated from his partner and, as I understand, was the father of four living children, although from what I understand of his ex-partner's reference he had a child who died as an infant.
Mr McInnes and Mr Hancock were aged 40 years. They apparently were friends who had known each other for a lengthy period of time. I should point out, in passing, it was a matter of no moment in the submissions, that a man called Joshua McMahon, who is the brother of Ms Smith, was charged in relation to his involvement in this matter. I believe I have identified him, although he was not particularly pointed out to me in the course of the conduct of the case, from the video evidence that I have seen. He was dealt with for an offence of hindering the apprehension of Mr Davis and received a s 9 bond. No issue of parity obviously arises in relation to the sentencing of Mr Smith. He was dealt with in a different jurisdiction. The issues of parity and disparity have been discussed in many cases and I will refer to the issue of 'parity' as it relates to Mr Davis and Mr Charnock later in the judgment and also inferentially in the relationship of Ms Smith to this sentencing exercise.
There were, it was said in the statement of facts and was clear from the history given by the complainant McInnes, some "tensions" in the relationship between Mr McInnes, Ms Smith and, as I understand it, Mr Davis since their separation. One of the background matters is that Mr McInnes had custody of the two daughters of the relationship with Ms Smith. As I understand the matter, at the relevant time of these events, they were in their early teens or perhaps 11 or 12 years of age, but there were no apprehended violence orders in place.
I have made mention of the fact that I viewed exhibit E, which is the disk of a closed-circuit television of events occurring at a hotel in Queanbeyan called Walsh's Hotel. That is the hotel that I visited in company with counsel yesterday to undertake a view. As I have said, I have viewed, both in court and out of court, the CCTV footage. I was given what was called, or what I described as, an aide memoire. Apparently this was prepared by the police officer in charge of the matter, which I marked for identification 2. I did not read it in detail when it was provided to me and my attention to it really was drawn when I came to privately view the relevant recordings. There is one matter that ought be observed about this aide memoire.
It is of little assistance to me in terms of forming views about what I can see on the CCTV footage in relation to the relevant events occurring sometime after 11.49pm when Mr Hancock and Mr McInnes entered Walsh's Hotel before they were attacked. It was helpful in sort of synthesising, as I would call it, the various camera angles. Some camera angles of course I was not shown in court. When it comes to the critical incidents giving rise to the attacks upon Mr Hancock and Mr McInnes the document is, for want of a better description, highly deficient in detail. This very much confirms the point that Mr Glisson made in submission that, apart from incidents occurring at the very beginning when Mr Hancock was, to use an expression, king hit and knocked to the floor by Mr Davis and then Mr Davis was pulled away struggling with security, then Mr Charnock attacked Mr Davis and then later when Ms Smith on at least three occasions kicked the victim McInnes on the head when he was completely defenceless, laying on the ground, it is very, very difficult to, with precision, identify the actions of various people beyond the fact identifying Mr McInnes being rendered helpless, Mr Davis continuing to struggle and attempt to fight as with Mr Charnock. The statement of facts I have is not an agreed statement of facts although the matters of dispute or the matters in issue, about which I am required to form my own view, turn out to be relatively minor.
I shall deal with one aspect of the statement of facts and its deficiency for my purposes later. The statement of facts states that Ms Smith claimed that Mr McInnes was not allowing her to see her daughters. The eldest daughter apparently did not want any contact with her and she, Ms Smith, was only able to see the youngest daughter in the care of Mr McInnes from time to time. The facts state that Ms Smith blamed Mr McInnes for the children's attitude towards her. Mr Hancock as I said, was a good friend of Mr McInnes and was also known to Mr Smith. Mr McInnes and Mr Hancock on the evening of 9 August attended a school reunion and the facts state that they were at particular places, a hotel and then a registered club, socialising with other people. Sometime after 11.30pm they decided to walk to Walsh's Hotel in Queanbeyan in the main street. Mr Hancock had worked there as a barman until recently and wanted to catch up with his former workmates. One of the things one notices from the video is Mr Hancock embracing or 'high fiving' one of the staff in the forefront of the view from camera 3. A woman called Corrine Dagwell contacted Mr Smith about the victims' approach to the hotel. Whether she was at the hotel or not was not drawn to my attention from the video. She was a close friend of Ms Smith and was aware of the animosity between Ms Smith and Mr McInnes. One thing is clear immediately from the facts I am outlining, that there seemed to be no preordained plan on the part of Mr Hancock or Mr McInnes to go to Walsh's Hotel at any particular time. Ms Dagwell was aware that Ms Smith was socialising with Mr Davis and others at Walsh's Hotel and she notified Ms Smith via a text message that Mr McInnes and Mr Hancock were on their way, so the facts are, and it is not disputed, that apparently Ms Smith and Mr Davis at least were aware that McInnes and Hancock were coming to the hotel.
As the video evidence from the CCTV camera coverage shows, Mr McInnes and Mr Hancock entered the hotel through the main doors on Monaro Street at the front of the hotel and walked into the front bar where they met a man who we have seen in the film by the name of Jason Webster. There are only a couple of patrons in the front bar harmlessly walking around. In what I would describe as the 'back bar', the two bars separated by a bar which forms a type of island between the front bar and the back bar, there is a side bar that connects the two bars and the area is quite open. In the back bar there was a band playing and I watched video of people dancing and enjoying themselves. At the rear of the hotel there is a beer garden area which is of really no moment in this case.
I wish to come to what the Crown facts state in one respect which requires particular comment, because the drafting of the facts seems to have a complete misunderstanding of what a trial judge's responsibility is in finding facts in respect of matters adverse to the prisoners or aggravating the offence. This is an area where the facts are the subject of 'objection' from Mr Glisson QC particularly and, as I understand it, taken up by the other counsel. The facts state that the CCTV footage "Indicates that Davis sees the two victims enter and advises Charnock and Smith of that fact". That may be so I pause to say, I have watched that very closely. There is no sound on the CCTV footage and it is very difficult to lip read from a distance of about 30 metres from where people are standing or talking. The Crown asserts that the footage further shows the three offenders commence discussions between themselves and the offender Smith's brother McMahon at the time. "The Crown further asserts that the correct inference from the footage is that the discussions is concerned with the arrival of Hancock and McInnes at the hotel". I pause for a moment to point out that it might be well for the Crown to submit that it is "correct inference", but the issue is that it relates to pre-planning in this matter, or pre-meditation as to the acts the subject of the charges, would require a finding of that fact beyond reasonable doubt. Anyone who knows anything about the law knows that if one is going to find an inference beyond reasonable doubt it must be the only reasonable, rational inference to be drawn.
In my view it is not the only reasonable, rational inference to be drawn that discussions that may be seen particularly from, as I would understand it, the view in camera 11 are necessarily only directed at the arrival of Hancock and McInnes at the hotel. They may be, given subsequent events within a short period of time, but there may be other discussion taking place. It seems to me quite clear having regard to the fact that the arrival of McInnes and Hancock on their part is not planned, that the notice of their arrival from Ms Dagwell's very unhelpful intervention was a matter occurring only a limited time before. The limited time between the arrival of Mr Hancock and Mr McInnes and the attacks upon them reflect upon the finding I make that I could not be satisfied beyond reasonable doubt that the crimes that were committed were planned or particularly pre-meditated crimes.
There is one matter I need to take up by reference to what the statement of facts reveal. The statement of facts state;
"It is the Crown case that about 11.50pm Davis made his way to where Hancock and McInnes were enjoying a drink together in the front bar. At the same time Charnock appears to make his way around the front bar from another direction".
There are two issues that relate to that. Not only did Mr Davis make his way towards where Mr Hancock and Mr McInnes were standing but, it is to be fairly said, the video footage shows he rushed towards them. I would conclude that he certainly caught them by surprise. There is one matter that arises however from the evidence of Mr Davis that needs to be included in the consideration of the facts. Mr Davis gave evidence to me that he was standing in the bar area and looking towards where Mr Hancock and Mr McInnes were standing in the front bar, he being in the back bar. He believed that he could see them making gestures and smirking and in some way antagonising him by their manner and what appeared to him to be their discussion of him or their discussion about him and perhaps Ms Smith, or directing comments in their direction. I have seen the bar area and it is quite clear that in the position Mr Hancock and Mr McInnes were standing one can see through to the back bar and can see the, if I can call it, the bar that is available for service in the back bar. The island is an open area. There are no walls to obscure the vision. However, on a careful viewing of the video footage from camera 11 it is quite clear that the movement of Mr Davis and Mr Charnock from where they were in the back bar to the area where Mr Davis attacked Mr Hancock reveals that the accused could not have been standing at the bar in the manner that he described when he claimed, to use my words, that Mr McInnes and Mr Hancock were making fun of him. One camera angle, from camera 3 does show Mr Hancock and Mr McInnes apparently having a laugh amongst themselves. But they seem to be in pretty good spirits when they arrived as I have earlier indicated, and I could not see anything in their manner that indicated that they were pointing particularly at Mr Davis. He certainly cannot be seen from camera angle 3. Mr Davis and Mr Charnock in fact came to confront the two men from an area at the far side of the back bar from where camera 11 is shown. Thus, I cannot accept the evidence of Mr Davis about what he said "precipitated" the confrontation.
There is one other point to be made about that. It was quite clear based upon even his own version that whatever he took offence at could not constitute provocation. He has indicated in the pre-sentence report and in his evidence in this court that it was a case of, to use my words, "punch first" or get in quick with one's "retaliation". This is not revealed to be the case from the video evidence.
So far as the assertion in the statement of facts that the Crown case is that Mr Charnock was cutting off any exit from the front bar for Hancock and McInnes I cannot accept that. It might be one inference that might be drawn from Mr Charnock's movements. But the truth of the matter is that such was the way in which the matter unfolded in a freewheeling, unstructured manner over the next minute or two, I could not conclude that Mr Charnock had any expectation whatsoever that necessarily Mr Hancock and Mr McInnes were going to flee from the front bar area.
The facts state, and this is not objected to, that Mr Charnock was heard to say words to the effect of "It's fuckin' on", which suggests that he anticipated there was going to be trouble. Self-evidently there was going to be trouble when one watches the video because Mr Davis moved very swiftly to attack Mr Hancock, striking him once with a clenched fist to the head. Mr Hancock was in fact knocked unconscious by that one blow and fell heavily, striking his head and right elbow on the tiled floor. He did not regain consciousness for the remainder of the incident. That is the essence of what was done to constitute count 1 in the indictment in relation to Davis. As I understood it there was some concern or objection to the assertion that neither victim appears to see Davis approach. I cannot draw a conclusion one way or the other but Mr Davis did come so quickly that one would not be surprised that neither Mr McInnes or Mr Hancock had any time to react and the fact that Mr Davis was able to strike Mr Hancock with a heavy blow to the head without him being able to take evasive action confirms that fact.
If I could just move ahead to Mr Hancock's injuries, just for the moment. He was treated by ambulance officers at the hotel and conveyed to Canberra Hospital. Mr Hancock suffered two lacerations to his top lip, one required numerous sutures and later plastic surgery, a laceration to the top of his head as a result of impacting with the tiled floor, a further graze to the top of his head. Injury to his right elbow also from impact from the floor, bruising to his brain which did not require medical intervention, thankfully for him, and he was discharged from hospital on 13 August 2014. After approximately six months he made a full recovery from his physical injuries. I shall come back to the victim impact statement later, it requires consideration of some legal principles.
Mr Hancock was very fortunate if I be so bold to say so, that he did not suffer more catastrophic injuries. It is to be understood of course that this sentencing occurs in the context of a large number of publicly known cases involving people being felled by either opportunistic or unprovoked attacks where very, very sadly by falling to the ground and striking their head, those victims have not recovered. It should be said that in the context of sentencing these offenders the issue of general deterrence looms very large, as do the other purposes of sentencing. The public is just sick and tired of having to read that these events occur in hotels and our streets. It certainly is, fairly said, to be very cowardly, as one sees in these video renditions of these events, to attack somebody in this way.
With regard to count two, concerning Mr Davis, and Mr Charnock, as the video evidence reveals, after felling Mr Hancock, Mr Davis turned his attention to Mr McInnes. It is quite clear in the forefront of the camera 3 angle one can see Mr Davis strike Mr McInnes to the head causing Mr McInnes to fall backwards. The facts say he fell to the ground. He did regain his feet fairly quickly.
Davis was retrained by the man, McMahon, and dragged away. It is the Crown case that Davis continued to thrash around attempting to continue the assault. Certainly he was not finished with his concern with Mr McInnes, as later events demonstrated and he certainly struggled with the attempts of security to try to subdue him to prevent any further damage being done.
There is no evidence of any immediate injury to Mr McInnes, at this particular point. One cannot see the bleeding which is self-evident in the photographs that I have seen of him taken shortly after the event.
Mr Charnock, it is acknowledged in the facts, initially stepped in between Mr Davis and Mr McInnes, and he pushed Mr Davis away. He went back to the melee involving Mr Davis, as the video makes clear, and was involved in that from which Mr McInnes was somewhat separated for a period of time. Mr Charnock lurched forward towards Mr Davis and Davis pushed him away. Charnock then immediately turned around and turned his attention to Mr McInnes, and he struck Mr McInnes in the head a number of times forcing him backwards.
It is stated in the facts that at about this time Mr Davis broke free from the security officers and "ran", I would suggested more stumbled, towards McInnes, joining Mr Charnock in the continuing assault on the victim, Andrew McInnes.
Mr McInnes attempted to move away but was followed by Mr Davis and Mr Charnock. The statement of facts asserts that Mr Davis tackled Mr McInnes to the ground and the Crown "asserts that both Davis and Charnock attacked him while he was on the ground". This is not entirely clear from the video evidence because, as the aide memoire (MFI 2) demonstrates in its paucity of detail, the camera angles show a group of people struggling amongst one another. There is, at least, three or four, maybe more hotel staff struggling with the men at this particular point.
It is at this point I would wish to just quote from some of the statements that were tendered at the request of Mr Glisson, particularly from the statement of Trent Miller, who was the licensee of the hotel and, in fact, is still the licensee as I noted yesterday when I attended the hotel. He wanted to talk to me about the case. I told him I could not talk to him.
In his statement, given to police on 14 August 2014, he said that he observed various events trying to break up the altercation. He saw Mr Hancock struck, he saw Mr McInnes struck, and his version of that aspect of the matter is consistent with the CCTV footage. He said, at this point, Mr Hancock was unconscious on the ground. He remembered other people arriving at the scene, he said:
"At this time, Andrew - (McInnes)"
(This is after Mr Davis had started to strike him and Mr Charnock had struck him):
"--did not appear to be injured." Meaning, 'I didn't see any blood on him'."
He claimed that he saw Mr Charnock, the name is misspelt in the statement of Mr Miller, "Advance on the victim and throw an elbow or right forearm at his head connecting with the victim's jaw area following that with a flurry of punches".
He remembered the victim being on the ground with people on top of him and he was trying to pull that person away when he saw Ms Smith, "Start .. to kick McGuinness (sic)". He saw him kicked in the head region by her. In fact, it was while the melee was occurring with Mr McInnes on the ground, Davis and Charnock are nearby, that Ms Smith joined in and commenced kicking McInnes to the head as he was lying on his back on the ground. She was wearing boots. She kicked at the head of Mr McInnes many times with full force. As the video records she advanced on him on, at least, three separate occasions and kicked him to the head numerous times on each occasion.
I point out that when the reference is made to, "numerous times", my viewing of the video, very closely, suggests three perhaps four kicks on each occasion. Perhaps there are others I did not see.
On each occasion Ms Smith was forced back by the staff. She would break free and then sometimes after talking to someone else nearby, returned to continue kicking Mr McInnes in the head. The facts state that as she kicked him his blood seemed to be, "splashing all over the place". The photographic evidence shows him shortly after the event bleeding very freely.
The facts state at one point Smith was moved away and hugged by a female patron metres away from Davis and McInnes. Why this occurred I do not know.
During the melee Mr McInnes' head comes into clear view as he is laying on the ground and a female patron sought to intervene by trying to hold Smith's arm and pull her back. But she broke away and again violently kicked the head of Mr McInnes with her right foot connecting with his facial area. The statements that were tendered at the insistence of Mr Glisson confirm the video evidence and what is in the statement of facts in this respect. McInnes sought to protect himself but it must be said that he was on the ground, there were other people on top of him, and as I said earlier he was effectively defenceless.
Ms Smith, during the period of kicking Mr McInnes, also kicked the arm of Mr Webster. This is an offence of assault which is on a Form One matter in relation to her. Ms Smith watched the melee for a period of time. Eventually the security staff were able to control the situation, and Mr McInnes was able to get to his feet. As I said he was bleeding heavily from the head.
The injuries that he suffered on the facts available to me were that he had two breaks to his lower jaw, he lost a tooth, he suffered significant bruising and swelling to his face, and he suffered a stroke during the days following his hospitalisation. He is now legally blind in his left eye as a result of the stroke. This is a permanent condition. He has ongoing headaches. He will remain on the blood thinner, Warfarin, for the remainder of his life and has a cognitive impairment including short term memory issues. When he tires, which is fairly frequently, he drags his right leg and he suffers continuing discomfort from jaw realignment. In relation to Mr McInnes I have read the victim impact statement. I will come back to that shortly.
The Crown asserts in relation to the matter that by her actions Ms Smith intentionally inflicted grievous bodily harm on Mr McInnes. "Mr Davis and Mr Charnock are quite liable for the injuries caused to (Mr) McInnes on the basis of the joint criminal enterprise in that they realised the possibility of grievous bodily harm being inflicted, however, they did not foresee the possibility of intention infliction of grievous bodily harm." The facts reveal this is a different criminal enterprise than that alleged against Ms Smith.
It must be fairly said, bearing in mind the differing pleadings, that on the evidence in the case, of the actions of Mr Davis and Mr Charnock it could not be said that their specific actions infer a contemplation of the possibility of the exact or the particular grievous bodily harm that was actually suffered. I think it could be fairly said of Ms Smith that although her kicks to the face and head show a clear intention to inflict grievous bodily harm, I could not conclude, in fact, it would be totally irrational to conclude, that it was an intention on her part to leave the victim with a permanent cognitive impairment, blindness in his eye and the like, that has arisen from the stroke. This has a causal connection to the various actions of the offenders but which occurred in circumstances that were - it would seem on the evidence to me - not foreseen by the prisoners.
There is evidence relating to the investigation and arrest in the facts that suggest that Ms Smith sought to avoid her responsibility, denying to one of her daughters that she was responsible for the obvious injuries of which the daughter was aware at that time. She, when arrested on 20 August, declined to give an account of herself. Since these events she has had no contact with her daughters and has been on bail. Mr Davis was arrested on the same day. He likewise exercised his rights to silence. Mr Charnock, as I have indicated, was arrested on Friday, 22 August. He declined the offer to participate in an electronic interview and his bail was revoked in relation to drug matters for which he was then currently charged.
In relation to the matters raised by Mr Glisson concerning the conduct of Mr Davis, and what specific harm was caused by his blows to Mr McInnes, the other statements he referred me to were generally in support of the account given by the publican who was, one would have expected, sober and attentive to the detail of what was occurring. What the licensee of the hotel said in his statement was clearly consistent in material respects with what I can see for myself in the video recording.
With regard to matters on a Form 1, Mr Charnock has one too. There is no need for me to deal with that at the moment.
It could be fairly said, from what I have said of the facts as I find them, that whilst the offences committed were not planned, and were largely not premeditated, the extent of any premeditation on the part of Mr Davis, who started this whole affair, was limited to a matter of a minute or so at the very most. But it is clear from watching the video that as he rounded the bar and rushed towards the victims, firstly striking Mr Hancock, he was intent on striking a heavy blow to that person and showed that he was intent on striking Mr McInnes with heavy blows as well at that particular time.
Mr Davis' actions really precipitated what followed, and whilst the conduct of Mr Charnock was in a sense somewhat contradictory, at one stage he was trying to separate people, and at another stage he was joining into the action, he was clearly a willing participant.
It must be said of Ms Smith that whilst I could not conclude any premeditation on her part, she could not plan for the fact that ultimately Mr McInnes, with the weight of bodies upon him including security staff, would be prone on the ground, she opportunistically but repeatedly sought to extract what I take to be some revenge upon him whilst he was unable to defend himself, for what she regarded as the frustrations or the slights that had been suffered arising from a separation from her children and her inability to have access to her children, or limited access to her children, or perceiving that their father had turned her children against her.
In that respect, in the context of the psychological report, and the history given by Ms Smith, I was provided with a copy of a number of text messages, which apparently passed between Mr McInnes and Ms Smith in the period late 2012 and early 2013. This is, of course, some considerable time before the events with which I am concerned. But the flavour of the text messages that I have read paints a very different picture from the one that the prisoner Smith sought to paint for the purposes of the preparation of a psychological report.
Mr McInnes in those messages, if I be so bold to say so, offered conciliation, friendship, empathy on a number of occasions in text messages. Obviously there was a strain in their relationship. Obviously from her own text messages, Ms Smith needed a change. I am not suggesting for a moment that she wanted to be away or separated from her daughters. But clearly it would appear from the text messages that her departure from their relationship was a voluntary decision made by her to sort her own life out and Mr McInnes, at least in those early stages of the relationship, would appear to be very supportive.
With regard to Mr Davis, when he gave evidence before me he spoke of the relationship with Ms Smith. He said that he had never been in any violent confrontation before in his life, and that is confirmed by his criminal history. He has no prior criminal convictions.
It is a feature of this case, which is very baffling and rather disheartening that three people, with no history of violence, should involve themselves in this sort of conduct. One would expect this sort of violent conduct, albeit over a short period of time unplanned as it was but sustained, would be more likely to come from people who had a history of acting in this particular way.
I accept, from his evidence and the references he has produced to the Court, that Mr Davis has been an industrious young man since leaving school. He left school at the end of Year Seven. He is a young man who has grown up in considerable difficulties. His mother has written about this and I have got other material before me to show that he has not had the best of upbringings. Then again, to his credit, many young people with disadvantaged upbringings, come before our Courts time and time again, charged with drug offences, and stealing, and robbery matters. He does not have any suggestion of a 'conduct disorder', as it is described, or any antisocial attitudes or activities, notwithstanding his disadvantages. He expressed his regret for his conduct.
As I said, I do not accept his version of being taunted in some way and certainly the physical movement of him from the place he was in the rear bar towards the victim is inconsistent with the evidence he gave before me. I do not doubt, of course, that there may have been, as the facts state, tensions between he and Mr McInnes. He may have sided with whatever version of events Ms Smith was giving him. This is a natural thing in relationships. New partnerships start, one partner listens to the other partner and accepts what they say because of the character of their relationship. But it may be that he was not being told the truth about the true relationship between Ms Smith and Mr McInnes. There had been no suggestion of any ill will in a physical sense between Mr McInnes and Ms Smith and/or Mr Davis before these events.
I accept, common to all three prisoners, although Mr Charnock has been in custody since August, particularly in relation to Smith and Davis, that over the two years, effectively since these events, there have been no further troubles. Of course, they have been restrained, I would assume, by Apprehended Domestic Violence Orders and breaches of those orders would be prosecuted by the police I am sure.
They have, no doubt, been restrained, too, by bail conditions. Courts expect people will comply with the orders made restraining conduct to keep the peace. But I take into account the delay in the matter coming to Court, albeit that part of that delay was in the context of maintaining pleas of not guilty when it could be fairly said, firstly, in relation to count one concerning Mr Davis, the evidence against him was completely overwhelming and no issue of self-defence could reasonably be said to arise from the video evidence, and having regard to the fact that Ms Smith has ultimately, albeit when the matter was listed for trial, pleaded guilty to a charge with which she was originally charged from the beginning. There could be no doubt, looking at the video, that she must have known, no matter how much alcohol that she drank, that she had repeatedly, if I could use the expression, laid the boot into Mr McInnes when he was completely unable to defend himself or protect himself even from the savage kicks that she rendered to him. She did not show him any mercy on that night, that is for sure.
However, dealing with Mr Davis' subjective matters, I read the references from his employers. He has had employment with the one firm for as I understand it, ten or eleven years. He has worked in the industry for a lot longer than that. He is well regarded as a competent, hardworking leader of his team. He is valued to the point where his employment is offered to him when these proceedings are over. He has expressed remorse to his employers for his conduct and the respective employment references from two separate businesses that apparently have a connection with one another, or have had a connection with one another, are very positive about his industry, his honesty, and his dedication to his work.
I found the letter from his former partner most moving. She did not give oral evidence and I did not have an opportunity to see her, but she provided some detail about his background over a number of years of their relationship, the fact that they had children when he was very young, he was seventeen, as I understand it, she was eighteen at the time of their first child. They, as I understand it, have four children. In 2004, the prisoner lost his brother suddenly and by the time that they were twenty-one or twenty-two they had two or three children.
They lost a child in infancy, as I said, and ultimately they had four children from the relationship. They separated, it would appear, in an amicable separation. There is no suggestion in the reference from Ms Davis of any violence on the part of the prisoner, or any irrational behaviour as we see in relation to this matter. Their agreement to separate was taken with a view of the best interests of their children and it is a shame that the separation between them, as amicable as it was, did not provide some template for the separation of Ms Smith from Mr McInnes.
Ms Davis speaks highly of the prisoner's character, as to his industry, his support for his family, the affection he has for his children, the regret he has for his conduct, the way in which he would wish his conduct could be, to use the expression, taken back. But unfortunately it cannot.
There are other references from other people who have known the prisoner over a period of time. A land owner in the district and another woman of substance, speak of his finer qualities and I accept from all the character evidence that the prisoner's conduct on this occasion was entirely uncharacteristic, almost inexplicable. The prisoner sought to explain it by suggesting that it was some sort of pre-emptive strike for fear of his own safety but that really does not explain what happened and certainly is not supported by the objective evidence.
The Pre-Sentence Report from Community Corrections in relation to the prisoner Davis reflects upon his turbulent childhood, his father's violence towards his mother and the alcohol difficulties of his parents, the death of his older brother from a brain haemorrhage eleven years ago, to which I have referred, the amicable relationship with his partner, his industry, and employment since he was fourteen years of age, despite having limited education. In fact, he told the Community Corrections Officer that he actually taught himself to read after leaving school. He has completed a number of industry specific courses that are detailed in the report. I accept all that to be true.
He has had some long term mental health concerns, particularly around the time of his marriage breakdown. He undertook a Mental Health Care Plan for a period of time and had fifteen sessions with a counsellor, but was unable to continue that program because of the cost of it. He also took some medication but that affected him to the point where he thought it was inappropriate for his employment and his ability to care for his children.
His attitude to the offending, so far as the Community Corrections Service was concerned, was that he was not in agreement with the police facts claiming "omission of facts throughout". He claimed that the offence occurred, "after a lengthy period of provocation on the part of the victim", and stating that he "believes there was no other possible outcome in this situation".
In his evidence before me he had an opportunity to give greater detail about what is said to be "a lengthy period of provocation" but gave no evidence about that only speaking of the events on the night in question.
He is regarded as being at medium to low risk of reoffending, and it is assessed that he is a young man comparatively, now aged as I understand it, thirty-two, being born on 14 October 1983, who has done much in his life to overcome the difficulties of his childhood and other issues arising from his relationship with the mother of his children breaking down.
The assessment of him states that while he was "cognisant" of the inappropriateness of his actions, he believed there was no other outcome in the situation. I am not sure that he believes that now. Certainly it could not be true, but I take into account from all of that that there are many positive things to be said generally about his character beyond the fact that he has no prior criminal convictions and he has much potential for the future.
Of course, the victim, Mr McInnes' potential for the future is significantly inhibited as a consequence of the combined actions of Mr Davis, and the other two people.
Ms Smith was born on the 6 May 1976, she is now aged forty. As I would understand it she was thirty-eight at the time of the offending. She has no prior criminal convictions. With regard to her background, I mentioned the fact that there was a psychological report relating to her from Danielle Clout. That report is dated 3 May 2016. It attracted some comment in the course of the proceedings.
Whilst Mr Davis gave evidence, Ms Smith did not give evidence. The Crown did not specifically object to the psychologist's report, but the Crown properly pointed out to the Court that it was not subject, in its detail of history from the prisoner, to the test of cross-examination and thus the factual foundation for some of the opinions expressed has not been suitably established.
In relation to that aspect of the matter, I have referred to the issues concerning the relationship with the victim with her husband. That is set out in a section under the heading, 'Relationship History', at paragraphs 21 to 27.
It must be said that she gives a detailed account of Mr McInnes, if I could use the expression, emotionally or otherwise abusing her. She paints a picture of deprivation of contact from her children, engineered by Mr McInnes, and that there was conduct of Mr McInnes that could be said to constitute some provocation that might have explained her actions or, at least, explained her mental state at the time that the events that I am concerned with occurred.
The difficulty with many of her assertions, as I said earlier, is that there is objective evidence to contradict the account she gives as to the circumstances of the break up and, at least, the early attitude of Mr McInnes towards her. In the context of her not giving evidence and not being cross-examined, clearly her account of the relationship history must be approached with considerable circumspection. One would have great difficulty accepting it.
It is to be said, as one of the authorities referred to in the various submissions I received point out, this is not the Family Court of Australia and the sentencing Judge in a domestic violence situation or a case involving violence arising out of a relationship between people, is not equipped to make final conclusions about the character of the personal relationship of people, particularly people that have had children between them. Of course, there is insufficient evidence, even allowing for the detail of the account given by Ms Smith, to reach any concluded view about the matter of their relationship. But the facts are, as the authorities make clear and as is acknowledged in the written submissions that I received, the fact that there is a family dispute between partners is not an excuse for violence or physical retribution.
Of course, most domestic violence situations involve men abusing women and the shocking toll of domestic homicides in our country is a matter of great shame and embarrassment and regret. It is not of any moment in explaining serious violence against another that the victim of the violence has, in some way, acted in a manner which has frustrated, annoyed or even hurt the feelings of the person perpetrating the violence. It is because I cannot accept the account the prisoner gives of her relationship with the victim that I cannot act upon some of the opinions that have been expressed by the psychologist.
Although the prisoner did not give evidence there is other material of history which I am prepared to accept in a general way, the background of some disadvantage, that she, as a child had, she moved a number of times, she had lost contact with her father for a long period of time after he had left the family when she was three years of age. She has a stepbrother and a half-brother from her mother's re-partnering. She, in the history she gave to the psychologist, reported, "an extensive history of exposure to violence in the home" when she was living with her mother. Her stepfather was "a raging alcoholic" and was frequently violent to her, her sister and her step-brother. This may be true and in part this may provide some context for what I am concerned with here, but the prisoner, as I said earlier, has herself no prior history of violence to others.
She has been industrious. She did go to Year Twelve at school. She trained as a hairdresser. She was a below average student but she apparently has worked in various hairdressing businesses for a long period of time, subject to having children and the like. She opened her own business in 2010 but that business shut in January 2016. Her financial difficulties are referred to in the Pre-Sentence Report relating to her. I will come back to that in a moment.
With regard to the medical history and her psychiatric history, she has had a history of postpartum depression after the birth of both of her children, worse thing after the birth of her second child in 2002. She received some medical assistance in relation to that.
She reported that in the months prior to the offence "her mental health had deteriorated in response to increasing threats from Mr McInnes and reduced contact with her two daughters". She described "missing her children intensely" which had an effect upon her mood and thoughts of self-harm and suicide. This could well be true. She attended the Queanbeyan Mental Health Unit and was kept overnight for observation and support but I have not been given any particular detailed evidence about that. She had taken some medication to overcome her distress and expressed current symptoms of depression at the time of her assessment. This may well be, of course, reactive to her current circumstances.
With regard to the issue of threats by her partner, in the relationship history, the psychologist in her assessment saw the conduct of Mr McInnes as being concerned with what the psychologist assessed to be her mental state functioning at the time of the offence.
I cannot conclude that there is any mental illness or mental disability that is causally connected to her conduct. I note in relation to the history that she gave of the incident involving her former partner, at paragraph 48 of the report, she claimed that "started kicking Mr Davis telling him to get off Mr McInnes". She said that when she saw Mr McInnes, "still lying there, she 'panicked' about Mr McInnes stopping her contact with her daughter due to the fight and she just wanted him to get up". Ms Smith reported that she then kicked Mr McInnes "one" time in an attempt to force him to get up. She stated that she "wasn't in her body" at this time and she just desperately wanted him to get up so he "would not distance her children from her further."
That piece of history, as it is materially relevant to the psychologist's assessment of her mental state at the time of the offending, is materially untrue. She did kick Mr McInnes more than one occasion. I am prepared to accept the fact that she was continuing to be distressed about being separated from her children and that she resented Mr McInnes for that. But it seemed to me, with respect, that her multiple actions, her repetitive actions, were more consistent with her wanting to hurt Mr McInnes, as her plea of guilty reflects, rather than wanting him to "get up" and that she acted, if she acted out of frustration with vigour and with determination.
That having been said, the possibility of her having what she describes as an "out of body" type experience may be partly true. There was some ingestion of alcohol but as a background to this matter on the part of all the offenders intoxication has not been raised by them as being particularly relevant. In fact, ultimately it is a matter of no moment.
With regard to the assessment of the psychologist, she concluded:
"that the prisoner met (what are described as) DSM No. V diagnostic criteria for Adjustment Disorder, which was likely triggered around June 2013 when her separation from Mr McInnes became increasingly hostile and he began threatening her and withholding her access to her children. Ms Smith's vulnerability to experiencing an Adjustment Disorder, at this time, is likely heightened by exposure to domestic violence perpetrated by her stepfather and then the reported long history of abusive and controlling behaviour by Mr McInnes during their marriage."
She also says:
"It is possible that at the time of committing the offence Ms Smith may have suffered from major Depressive Disorder rather than Adjustment Disorder. However, due to the retrospective nature of the clinical review establishing the time specifies required for the diagnosis of Major Depressive Disorder, it is difficulty, given the period of time that has elapsed since August 2014."
Firstly, that last comment is self-evidently true. But, also, the assessment of the psychologist about her state of mind at the time is very dependent, in my view, upon accuracy of the history that she has given.
Now I appreciate, of course, that she gives a history of a deterioration in her relationship with Mr McInnes in mid-2013, a period not covered by the text messages that the Crown tendered in its case in reply. But on the other hand, as I said, there were elements of the text messages which showed on her part, and Mr McInnes' part, a relationship or a situation at the time of the separation somewhat different from that claimed by the prisoner.
The psychologist, in her report, discusses what an Adjustment Disorder involves:
"It involves the development of clinically significant emotional behavioural symptoms in response to an identifiable stressor, and can be a serious mental health condition, leading to impairments in functioning across a range of domains."
I am not satisfied, on balance, that such a condition materially affected the prisoner. As I said I am prepared to accept that her conduct was motivated by her resentment or dislike of Mr McInnes. That is self-evidently so from her actions, but I could not ultimately conclude that it was as a result of a substantial mental illness or disability.
I note the current condition of the prisoner. That assessment of her requiring less dependence upon the history that she has given, seems quite appropriate in the circumstances of the matter. I certainly could not conclude that she suffered a major depressive disorder at the time of the offending. The psychologist, as I said earlier, only sees it as a possibility.
I note the prospects of rehabilitation and the prospects of not re offending are commented upon favourably by the psychologist. This would, to my mind, be self-evidently so having regard to the personal history of the prisoner, a lack of criminal history and events since the offences with which I am concerned. I have noted the opinion of the psychologist as to the effect upon the prisoner of being in custody. Obviously this would have a substantial affect upon her. In part that is the purpose of imposing a term of imprisonment in one sense, not to cause any mental distress or exacerbate existing conditions, but to emphasise the need for general and personal deterrence.
With regard to the Pre-Sentence Report it sets out matters of history that I have already commented upon. Ms Smith, like Mr Davis, does not appear to have had problems with drugs or alcohol. There is reference made to treatment for post-natal depression. I appreciate that persons with post-natal depression could be more amenable to depressive symptoms in other circumstances of stress. As I said earlier, I accept that she was in a degree of distress, at least, in terms of her relationship with her children.
As to her attitude to the offending, reported to the psychologist, the report says:
"The offender reported a disparity between her recollection of the events and those detailed in the agreed Police facts. Ms Smith stated that she had initially attempted to break up the altercation, however, had 'mentally lost it and caused injury' to the victim while attempting to kick the co-offender'".
This is similarly an assertion, as I would understand it, that she was endeavouring to kick Mr Davis rather than her partner. I cannot accept that account. She, on repeated occasions, kicked the victim as the evidence reveals. Both the video evidence and the evidence of bystanders. If she was attempting to kick Mr Davis, her failure to connect with him and connecting with Mr McInnes on repeated occasions, sometimes separated by walking away, is entirely inconsistent with what she claims.
She is assessed at being at low risk of reoffending but she had a number of issues that need addressing, including her relationship with her family, her relationship with her partner, her personal and emotional needs and the like. She does have some physical injuries of long standing. She has some injuries to her right arm and back that are reported by her General Practitioner.
She was co-operative with the psychologist and co-operative with the Community Corrections Officer. The assessment of her was that apart from disputing the police facts, she sought to assert that she was defusing the altercation, that she was suffering mental health issues at the time, and that her decision to engage in the melee arose from those circumstances, "irrespective of her intentions". She is currently engaged in mental health treatment and had an appropriate management plan. The Parole Authority and the Correctional Services will need to address the issue of her mental health whilst in custody quite closely. She needs assistance on community release through a mental health treatment plan and counselling for emotional management and conflict resolution, taking that material into account.
I have some references from friends of her. Again they speak of her industry, her loyalty to her friends, the devotion that she had to her children. She is a committed person in the workplace. She is regarded by one of her former employers as "kind, loving, caring and gentle" and has made a contribution to her community previously.
She said that the prisoner was "devastated and grief stricken over these matters", and "deeply affected by what has happened". It seems to me, with respect, that a great deal of that may well be reflecting upon her own circumstances rather than that of Mr McInnes. But it is said that the conduct that is alleged against her is uncharacteristic and I accept that to be so. That is the evidence relating to her.
The submissions on behalf of the prisoner, Mr Davis, by Mr Glisson QC, I have referred to in general terms. He provided very helpful detailed written submissions. I have dealt with the issues so far as fact finding is concerned, relating to those matters raised by Mr Glisson. It does require me, however, in the context of my attention to the submissions of the parties, which I do not propose to repeat because everything that has been submitted has been taken in to account and is reflected in my reasons, that I turn to the issue of the assessment of the objective seriousness of the offending. One reason for that is because each of the offences with which I am concerned carries with it, as I said, a standard non-parole period.
Section 54A(2) Crimes (Sentencing Procedure) Act 1999, provides:
"For the purposes of sentencing an offender, the standard non parole period represents the non-parole period for an offence in the Table to this division that, taking into account only the objective factors affecting the relative seriousness of the offence, is in the middle of the range of seriousness."
Section 54B(2) provides:
"The standard non-parole period for an offence is a matter to be taken into account by a Court in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender."
This Division of Part 4 of the Act also provides that:
"Where there is a standard non-parole period the Court must, irrespective of what other orders the Court makes, fix a non parole period."
With regard to Mr Davis, in the submissions made by Mr Glisson QC, he conceded that the attack upon Mr Hancock was within the middle range of objective seriousness.
I would place the offence at the lower end of the mid-range of objective seriousness, bearing in mind that it has been said that the middle range of objective seriousness may not necessarily be a "narrow band".
In coming to this conclusion, in relation to count one, I take into account the following matters. Firstly of all, naturally the character of the injuries upon the victim. The unannounced character of the assault. The striking of the victim in circumstances where he had little or no time to defend himself. I bear in mind that the assault was unprovoked and the victim, as I said, was largely unaware of what was to happen. But, as well, there are these other factors to be taken into account in assessing the objective seriousness of the offending in the manner in which I do. Firstly, any premeditation in my view was slight. True it is that the prisoner came from the back of the hotel some distance of, he said, 15 metres. I would estimate it to be perhaps greater, up to 20 or 25 metres from the rear of the rear bar to confront Mr Hancock. He obviously was intent on striking him. But the extent of premeditation, if there was any, was limited to a minute or less.
I accept that there was no planning of this. The presence of Mr Hancock and Mr McInnes in the hotel, that was notified apparently to Ms Smith, was not necessarily anticipated by any of the prisoners. The prisoner did not use a weapon, he used his fists, although as we can see in this case and other cases, they can cause serious injury. He was not disguised. The events happened very quickly within a matter of seconds.
With regard to the second count in the indictment, concerning Mr McInnes, I have already indicated that the specific harm suffered by Mr McInnes was not that intended. The Crown has indicated in the facts that the pleas were accepted on the base of the acceptance that there was a reasonable possibility foreseen by the prisoners in the course of a joint criminal enterprise that there would be grievous bodily harm, but not serious bodily harm that was lifelong.
This offending, just isolating Mr Davis and Mr Charnock at the moment although I am not actually sentencing Mr Charnock today, I would place again in the low level of the 'midrange' of objective seriousness. In this regard I take into account concerning Mr McInnes the various injuries he suffered as best as I can identify from the actual blows of the prisoners.
I note the fact that the accused Smith inflicted separate blows at a time when what she did, in my view, did not form part of the joint criminal enterprise between the prisoner and Mr Charnock. But the facts of the matter are Mr Davis started this melee. He was the first one to strike Mr McInnes, and he was anxious to continue the struggle as the video makes clear. He was in-company with Mr Charnock, although Mr Charnock initially was not directly involved in the striking of Mr McInnes.
I have noted the submissions made by Mr Glisson QC about the limitation of the extent of the joint criminal enterprise, the distinction that may be drawn between being in-company, as the prisoner has admitted, and a joint criminal enterprise. But it is clear that Mr Davis was set upon doing what he wanted to do and Mr Charnock joined in to what Mr Davis was doing, even if Mr Davis was relevantly oblivious to what Mr Charnock had achieved being - I hasten to say as the video makes clear - entirely pre-occupied for a large part of the melee by being restrained by security guards.
There is no evidence from which I could conclude that the prisoner or Mr Charnock were aware, encouraged or approved, of what Ms Smith did. Mr Davis and Mr Charnock had no weapon. Their blows were punches. I have already made comment upon the evidence of the absence of injury at various times when blows were struck, at least, by Mr Davis.
The assaults on Mr McInnes were not planned and had even less premeditation, if any, than that involved by the assault by Mr Davis upon Mr Hancock. The events happened over a short period of time and, of course, many of the blows struck after the initial blows by the prisoner, Mr Davis, and the initial blows struck subsequently by Mr Charnock, were blows struck in a wild but random melee.
I say in favour of Mr Charnock that I have taken into account the fact that he did not start this attack, although he was there willing to assist, as he demonstrated, and I have noted the separation of Mr Davis from Mr McInnes at a particular time. He has similar features to Davis, absence of planning, no intention to cause the specific harm, no weapon, no premeditation.
With regard to Ms Smith's conduct, I place the objective seriousness of her offending in the context of the considerations of Part 4 Division 1A of the Act in the middle of the midrange, perhaps slightly to the lower side of the middle of the midrange. In this regard, as with the other matters I am required to consider for Ms Smith and Mr Charnock, I take into account the injuries suffered by the victim immediately at her hands. It is clear that her kicking to the head and the face substantially contributed to the immediate injuries suffered by the victim.
There was no planning, no premeditation. Her crime was clearly on the video evidence, in my view, opportunistic, even if she did hold a grudge against Mr McInnes. But her conduct was also repeated and deliberate and targeted. She also should have appreciated, given the nature of the footwear and the like, that her kicking, as she accepts, would cause grievous bodily harm if not the specific grievous bodily harm that arose. I also note on the facts that her striking of the victim was at a time, as I said earlier, when he was on the ground and completely defenceless.
In relation to the matters that I am required to take into account, in respect of the prisoners on the basis of the legal issues that were raised in the submissions, I note, firstly, I am required to have regard to all the 'purposes for sentencing' under s 3A of the Act. There is a need for adequate punishment, a need to prevent the prisoner and others from committing similar offences. I believe, on the basis of their past criminal histories, and the context of this offending, that personal deterrence is not as significant as general deterrence. I do not believe on the evidence available to the Court that I need to protect the community from the offenders. I need to promote their rehabilitation but also make them accountable for their actions to denounce their conduct and recognise the harm done to the victim by the crimes they have committed.
With regard to the victim impact statements, if I may come back to that material, I have read the victim impact statement of Mr Hancock, I have read the victim impact statement of Mr McInnes. Mr McInnes' victim impact statement is very detailed. It does contain a great deal of detail that has not been included in the facts and there is some medical material that, in my view, properly should have been brought to the attention of the Court in medical reports, with no disrespect to Mr McInnes, not based upon his assertion or leaving him with the responsibility of detailing the full extent of his injuries. As I said, the facts themselves speak of the catastrophic affect of him of these events and the life of pain and suffering he will have. I have already concluded, although he might not see it that way because what happened to him is consequent of the combined actions of the three, that I do not accept that the prisoners intended that he a suffer permanent injury but clearly Ms Smith intended that he suffer grievous bodily harm.
With regard to Mr Hancock's victim impact statement, which only relates, of course, to Mr Davis, I have had regard to those matters that are in accord with the fact. Issues relating to the personal relationship with his partner and the break-up of their relationship are not matters that I can properly or reasonably take into account directly referable to these prisoners.
With regard to victim impact statements, of course, they are matters relevant to the assessment of s 3A and s 21A of the Act. The Crimes (Sentencing Procedure) Act, at Part 3 Division 2, has the relevant provisions between ss 26 and 29. I am mindful of those statutory provisions and the fact that the legislation permits the Court in its discretion to take account of the contents of such statements.
There are a number of decisions, however, that discuss the evidentiary status and use of victim impact statements at sentence. A decision to which I was referred in the helpful submissions of Mr Glisson was Tuala [2015] NSWCCA 8, particularly at [52] - [76]. The Court of Criminal Appeal, as Simpson J pointed out, had not reached a "consensus" as to what was the value of victim impact statements. They are tendered usually without the need for cross-examination. As I understand it there was not an objection by the relevant parties to relevant victim impact statements, Mr Hancock's, of course, only being relevant to Mr Davis. But there were concerns about matters that went beyond the scope of the facts presented by the Crown.
As Basten JA in a case of Thomas, from 2007, pointed out it was a shame that the legislature has not helped us in this regard.
Simpson J in 2005 in the decision of Wilson [2005] NSWCCA 219, stated at [25]:
"Victim impact statements are a particular species of evidence available to a sentencing Judge. Special provision is made for the admissibility of victim impact statements ... a Court may, if it considers it appropriate to do so, receive and consider a victim impact statement at any time after it convicts but before it sentences an offender."
Notwithstanding that by subsection (4):
"A Court must not consider a victim impact statement unless it has been given by or on behalf of a victim to whom it relates or by or on behalf of the prosecution."
In Thomas, the decision to which I referred of Basten JA, he noted that the weight to be given to it is not necessarily clear. He said that:
"It will often be appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established, beyond reasonable doubt, and the statement is restricted to subsequent effects upon the victim."
I have taken the victim impact statements into account insofar as they accord with the facts upon which the prisoners are to be sentenced. It is conceded that, particularly in relation to Mr McInnes, the consequences are serious and lifelong and that is self-evident from the material available to the Court.
With regard to other matters required to be taken into account, if I may turn to s 21A of the Act, there are no aggravating factors relevant to Mr Davis or Ms Smith other than those pleaded in the charges. I am mindful of the fact in relation to Mr Charnock he was in breach of conditional liberty, but I will say more about that, of course, when he is to be sentenced. It is a matter that could be said to distinguish him substantially from the person with whom he has a common charge, that is, Mr Davis. That means distinguishing him adversely in comparison with Mr Davis. But then again there are matters in the objective facts relating to Mr Davis that place his conduct at a more serious level than Mr Charnock. Ultimately these matters may even out.
With regard to the issue of the maximum penalties, of course, they are relevant matters to take into account in assessing the seriousness of conduct. I particularly note, in this regard, the submissions of the Crown, I think adopted by Mr Glisson in his usual realistic fashion, as to the importance of giving weight to the extent and nature of the injuries, the seriousness of the conduct by reference to the maximum penalty. Such a case is Zang ([2004] NSWCCA 358) but there are many decisions along that line.
I am required to have regard to the state of mind of the relevant parties as best as can be devine. I am mindful of what was said in Zamagias about the degree of harm intended in a particular case may make the absence of premeditation less significant. I have already dealt with the issues of premeditation and what was contemplated by the parties, at least, established beyond reasonable doubt or not. Although I note the particular authority identified by the learned Crown in Zamagias ([2002] NSWCCA 17) is a leading judgment by Howie J on the proper approach to imposing terms of imprisonment that are suspended.
I have already made acknowledgement of the Crown's submissions in relation to the role of domestic violence in acts of violence and the like. I have already commented upon matters of premeditation, planning and the lack of provocation.
With regard to the Crown's submissions concerning the 's 33' offence (concerning Ms Smith) the Crown said it was: "aggravating factor where the offence was committed in company".
The conduct of Ms Smith giving rise to the count affecting her, as I said earlier, in my view is independent of the conduct of both Mr Charnock and Mr Davis. I do not believe that they were necessarily aware of, or appreciative of if I could use that expression, her involvement in the matter and I would not conclude that they were necessarily "company" with her in respect of the conduct that she pleaded guilty again. I get back to what I see as some inconsistency in the way in which the matter has been pleaded. They are said to be in company with her for an offence that has no specific intention as an element of that count and with which she is not charged. This was discussed yesterday.
With regard to mitigating facts that arise under s 21A(3) of the Act, the mitigating factors between Mr Davis, and if I may say so Mr Charnock and Ms Smith are largely the same. There are some differences in degree.
Firstly, I accept the offending of Ms Smith and Mr Davis was not part of a planned or organised criminal activity. Neither offender had any record of previous convictions. I point out Mr Charnock did have a finding of guilt and he was an unconvicted drug supplier at the time of the commission of the offence but Ms Smith and Mr Davis had no criminal history. I am prepared to accept that both offenders were persons of good character, that the prisoners are unlikely to reoffend, that Ms Smith and Mr Davis have good prospects of rehabilitation.
I cannot conclude that they are relevantly remorseful. They have expressed remorse for their actions and I accept that that is so. But their accounts of their involvement in this matter, particularly Ms Smith's attempt to minimise her conduct, reflect to my mind that she has not taken full responsibility for her actions, only partial responsibility. The pleas of guilty of the two offenders are mitigating factors.
With regard to the standard non-parole period in each case, of course, I bear in mind as s 54B(2) provides that having determined the objective seriousness of the offending, one must turn to the other matters including the mitigating factors and the strength of those mitigating factors in the sentencing process. Good character, for example, may be established, but it may have greater or lesser weight depending upon the objective facts and other factors. Here the good character of the offenders, Smith and Davis, is a matter of some significance. Their conduct is uncharacteristic.
In effect, the legislative regime reflects what the High Court determined in the decision of Muldrock that was referred to in the written submissions of Mr Glisson and Mr Winch for Mr Charnock. Also, in assessing the non parole period, relevant is the issue of 'special circumstances' pursuant to s 44 of the Act. In each case I have determined that there are special circumstances warranting a substantial adjustment of the relationship of the non-parole period to the balance of sentence. There are many reasons for this. The fact that these are first time terms of imprisonment for the two prisoners is not of itself a special circumstance, but in my view both prisoners will need considerable professional assistance to adjust to community living, they will need direction and counselling and assistance in relation to their personal relationships. In the case of Mr Davis, anger management, albeit that this conduct is uncharacteristic. It is clear that Ms Smith has, at the moment, ongoing mental health issues to some extent. That will require professional counselling. The Pre-Sentence Reports identify a number of those matters that are crying out for attention by the Community Corrections Services.
With regard to the discounts for the subjective cases for the two prisoners, Smith and Davis, they are very strong. Of course, a strong subjective case does not displace serious objective offending. A person convicted of murder, who has prior good character, can expect to spend a very substantial period of time in custody and good character ultimately bears little weight.
With regard to the discounts for the pleas of guilty I was ably assisted by the learned Crown Prosecutor with some history of the matter, and this was a matter of submission from Mr Glisson and Mr Doig for Ms Smith, and Mr Winch for Mr Charnock.
Assessing the appropriate discounts was a difficult matter. There was much common sense, if I be so bold to say so, in Mr Glisson's submissions concerning the particular counts affecting Mr Davis and Mr Charnock. Insofar as, firstly, the matters that they pleaded to were negotiated at the time the trial was to start when the two men were facing more serious charges, the facts concerning the contribution of Mr Davis and Mr Charnock to the infliction of grievous bodily harm upon Mr McInness particularly, were confused, there were statements made by eye witnesses that might have been drawn in comfort by Mr Davis particularly. The video evidence in some respects, as I have pointed out, is inconclusive or difficult to divine with accuracy. So there was, in the context of the possibility of a large number of civilian witnesses giving evidence, notwithstanding a committal for trial which I understood was a paper committal although I have not been given any information about that, a considerable period of time saved. Thus, in my view, the pleas of guilty by Mr Davis and Mr Charnock to the common charge they share had very considerable utilitarian benefit and for each of those offenders in respect of that common charge, count two for Mr Davis, the sole count relating to Mr Charnock, I am prepared to give each of them, in due course for Mr Charnock, a discount of twenty per cent.
With regard to Mr Davis in respect of count one, I was told by the Crown very helpfully that there had been a change in counsel, who took a different approach to the original counsel. Originally there had been a suggestion of "self-defence", which would have been easily negatived by the Crown. But my understanding is ultimately that Mr Davis pleaded guilty to the same charge to that for which he had been committed for trial. It seems to me, with respect, that Mr Davis could have pleaded guilty to his assault upon Mr Hancock at an earlier time. A claim of "provocation" is no defence. It is a matter that goes to the issue of assessing objective seriousness of offending not to whether there should be a plea not guilty. But, on the other hand, I have also borne in mind the intimate relationship of the facts relating to the assault upon Mr Hancock with the assault committed upon Mr McInness.
I have concluded, in Mr Davis' case, in relation to count one, that he should receive a discount of fifteen per cent upon the otherwise appropriate sentence. The differentiation between that and count two in his case being simply that the Crown case against him in relation to count one was far clearer notwithstanding it is obvious that he did assault Mr McInness. The reckless infliction of grievous bodily harm may have been difficult, in itself, to establish given the conduct of Ms Smith.
With regard to Ms Smith, I bear in mind what Mr Doig, who skilfully represented her, put on her behalf. Ultimately I concluded she should receive a discount of fifteen per cent, given the saving of time, notwithstanding she pleaded guilty to the committal charge.
The Crown's position in relation to all offenders was that the discount should, to reflect what was said in Thomson and Houlton, be ten per cent. But, as I have pointed out. there are a large number of other considerations here. There were negotiations that led to a change in the initial indictment. There were question marks, that may be said on the video evidence at least, as to specifically who did what to whom, particularly in the case of Mr Davis and Mr Charnock. I am putting aside the situation of Mr Hancock for the moment.
In the case of Ms Smith, of course, what she did was clear. She still seems to be, as I have pointed out, in denial as to the reality of what she did. I hope when she has watched the video she reflected upon what was clear for all to see. But, on the other hand, she was also charged with another matter in relation to Mr Hancock. There are tactical considerations that sometimes arise as to the timing of a plea of guilty. It may not be seen to be appropriate to plead to one matter but strongly or strenuously defend another and the like. I have concluded that she should receive a discount of fifteen per cent upon the otherwise appropriate sentence.
With regard to the sentencing of Mr Davis, I have had regard to the issue of totality of criminality. Because I am sentencing him for two offences that are inter-related. The two offences taken together increase the totality of the criminality, there is no doubt about that. But the accumulation, in my view, should be a partial one in the manner I will outline in a moment.
In Mill v R [1988] 166CLR 59, particularly at 62 to 65 of the judgment, the Full Bench then sitting in that judgment, led by Wilson J in that case, reflected upon the principle of totality. Specifically, at page 63, the Court noted that:
"The effect of the totality principle is to require a sentencer, who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'".
There are other observations made including adoption of the English proposition:
"At the end of the day as one always must, one looks at the totality and asks whether it is too much?"
We do not have Texan sentencing in Australia. We do not impose upon people consecutive life sentences where life sentences are appropriate. The totality principle recognises the ultimate or inevitable compression of sentences that may be appropriate for individual cases. There is the decision of the High Court in Pearce v R ((1998) 194 CLR 610), particularly at [45], where the majority of the High Court dealing with a conviction appeal in its obiter remarks, but taken up in many other decisions by the Court of Criminal Appeal since (such as Hammound from 2002) reflected upon the need in determining sentences for offences to fix an appropriate sentence for each offence and then turn to the issue of totality of criminality as discussed in cases like Mill and the like.
With regard to the psychological evidence relating to Ms Smith, I have had regard to the decision of DPP v De La Rosa [2010] NSWCCA 194, particularly what was said by McClelland CJ at CL at [177] - [178]. I am very mindful of the fact that there is a proven causal connection, even for a minor mental illness or disability, that can impact upon sentence in a range of way diminishing perhaps the need for general deterrence or it may require, as was held in Engert, a greater emphasis to be put on general deterrence. The circumstances of a person's time in custody will need to be taken account. I have not been able to find any causal connection. Mr Doig did not particularly address me on this matter in direct terms. I am mindful of the fact that there was an emotional element in all of this contributing to the offending. But not such of a character to be described as a mental illness or a mental disability, bearing in mind, as I said, that part of the retrospective analysis of the psychologist is based upon the reliability of the prisoners history. That is shown to be, in material respects, unreliable.
With regard to Ms Smith, there is a matter on a Form One. I bear in mind the guideline judgment, Attorney-General's Application No 1 of 2002 [2002] 56 NSWLR 147, particularly the various observations as I understand it of the then Chief Justice, Chief Justice Spigelman at [18] - [44].
In this matter, the matter on the Form One is a minor matter. It is a matter involving the pulling, or brushing, or pushing of somebody in circumstances entirely, in my view, incidental to the primary offence. It is an offence of assault, in any event, that can be dealt with summarily.
Of course, it is correct that matters on a Form One may require a Court to impose a longer sentence or alter the nature of the sentence that would have been imposed if the primary offence had stood alone. It is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial as anyone in the criminal law knows. If you are sentencing someone for an armed robbery and you have to take four armed robberies into account on a Form One, then the sentencing for the principal offence will involve a somewhat different dimension and a much greater sentence to be imposed.
This is not that case. I have taken into account all that the Court of Criminal Appeal said about that matter. It is not a matter that, in my view, substantially alters the sentence for the principal offence.
With regard to both offenders, Mr Davis particularly, but to some extent to Ms Smith, I am mindful of those remarks of the South Australian Full Court in Yardley v Betts [1979] 22 SASR 108 at 112-3 where the then learned Chief Justice King made observations that have been approved on number cases, particularly R v Blackman and Walters [2001] NSWCCA 121 (at [44]) in these terms:
"The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and assumes particular importance in the case of first offenders and others that have no developed settled criminal habits.
If a sentence had the affect of turning an offender towards a criminal way of life the protection of the community is to that extent impaired. If the sentence induces or assists an order(sic) to avoid offending in the future the protection of the community is to that extent enhanced. To say that the criminal law exists only for the protection of the community is not to say that severity is to be regarded as the sentencing norm."
As I said, I have had close regard to the various submissions of the parties, I have perhaps not done justice, particularly, to the diligence of Mr Glisson. But the various issues that he has identified I have taken into account and either expressed or implicitly referred to.
Likewise Mr Doig's skilful oral submissions, on behalf of his client, were limited to particular areas. I believe all the issues that he raised as well as the Crown raising with me have been taken into account.
The Crown's ultimate position is that full-time custodial sentences must be imposed. Clearly that is so in this case. Again, within the community, there is no acceptance to be had of people attacking other people, wherever that may be, whatever the personal grudge may be, and one must always bear in mind, although one can never compensate it nor properly measure it, the catastrophic affect that the combined conduct of the prisoners ultimately had had upon particularly Mr McInness.
I am not, in any way, denigrating the serious bodily harm suffered by Mr Hancock. I appreciate, in making that comment, of course, as I have acknowledged, there were different contributions one to the other. Whilst the prisoner, Mr Davis, is not to my mind personally responsible for the conduct of Ms Smith, the truth of the matter is if Mr Davis had not bothered to go around that bar and attack Mr Hancock and then lay into Mr McInness then I do not believe Ms Smith would be before today. If Mr Davis had not got involved, Mr Charnock would not have got involved. But then again Mr Charnock, although I am not sentencing him today, had an opportunity not to get involved but chose to get involved. Their respective involvements led ultimately to the circumstance where Mr McInness was lying on the floor and Ms Smith had the opportunity to kick him in the way in which he did. Thus, we have this time been taken up at community expense to try and render some form of justice both to the prisoners, both to the victims and to the community which is a very difficult task. Particularly in circumstances where one is dealing with people who have acted uncharacteristically and are being sentenced to terms of imprisonment for very serious offending. That does not seem to reflect the manner in which they have conducted their lives in the past and probably does not reflect the way in which they will conduct their lives in the future.
Mr Davis could you stand up, please? It has taken me a long time, as you know. It has taken two hours, I did not expect it to take that long, but there is a lot of material to cover. One of the things you should understand, as with Ms Davis, is that the Parole Authority reads my remarks on sentence and if I do not try to address all the material and the legal issues in front of me then the Parole Authority does not have really anything to work upon when they finally make the determine one way or the other as to whether you should be released to parole.
In relation to count one, the charge, if I might call it, of 'reckless wounding', you are convicted. You are sentenced to a term of imprisonment which consists of a non-parole period of one year. That will commence from today, 10 June 2016 and expire on 9 June 2017. The balance of the sentence, with the discount I have calculated, will be one year six months. That will expire on the 20 January 2019, the total period of imprisonment is two years six months. I have made a finding of special circumstances.
In relation to count two, you are convicted. This is the 'recklessly inflict grievous bodily harm' in-company count. You are sentenced to a term of imprisonment consisting of a non-parole period of one year to commence on 10 June 2017 and to expire on 9 June 2018. The balance of the sentence will be two years and two months and that will expire on 9 August 2020. The total sentence of imprisonment is three years two months. I find 'special circumstances'. You will be eligible for release to parole on 19 June 2018. Thank you, you can take a seat.
I cannot direct that you be released to parole. That will be a matter for the Parole Authority.
Ms Smith, could you stand up, please? In relation to the offence to which you pleaded guilty, taking into account the matter on the Form One, you are convicted. You are sentenced to a term of imprisonment which consists of a non-parole period of two years one month. That will commence on 10 June 2016 and expire on 9 July 2018. The balance of the sentence will be two years and two months. That will expire on 9 September 2020. The total sentence of imprisonment is four years and three months. I make a finding of 'special circumstances'. You will be eligible for release to parole on 9 July 2018. You can take a seat.
Again, in your case, it will be a matter for the Parole Authority as to whether you are released to parole at the expiry of your non-parole period. That will depend upon your behaviour and the like. The Parole Authority will have regard, I hope, to my remarks on sentence.
With regard to both of you, all the backup charges on the s 166 certificates are withdrawn and dismissed and, of course, there are the orders I make. You have rights of appeal, the Crown has rights of appeal. It may not be the final orders made by the Court.
Now, Mr Crown, are there any technical matters from you?
CROWN PROSECUTOR: No, your Honour, thank you.
HIS HONOUR: I didn't get your appearance, I am apologise.
SHARMAN: If the Court pleases, Sharman.
HIS HONOUR: How are you sir? Nice to meet you, you are appearing on behalf of Mr Davis is that correct?
SHARMAN: Yes, your Honour, could I just ask you to, for the benefit of my note, the commencement date for the sentence in relation to the reckless infliction and the grievous bodily harm?
HIS HONOUR: Yes, in-company?
SHARMAN: Yes.
HIS HONOUR: The second sentence is to commence on the 10 June 2017.
SHARMAN: The Court, pleases, thank you.
HIS HONOUR: I must say I did not specifically mention this before, except in passing. Although they are charged with different offences, one of the issues in this general sentencing exercise is an issue of parity, to some extent, albeit that Ms Smith is charged with separate offending and a separate offence with a greater maximum penalty. Of course, parity will involve, in the context of Mr Charnock, consideration of a maxim that "alike shall be treated alike and the unalike shall be treated unalike to the extent of their un-alikeness" in accordance with what are called Aristotlean principles of "equal justice", or equality, as discussed by Rothman J, in a case of Jimmy from 2010.
Is there anything else from you sir? Now, Mr Doig anything else from you?
DOIG: No.
HIS HONOUR: Thank you very much for your attendance. You are excused. Ms Smith you will have to go with the custodial officers, as will you, Mr Davis and you Mr Charnock. You know the story.
I am pleased that you sat through that. Not because I am pleased you had to sit there for two hours, I am not pleased that it takes so long to go through all the matters I need to. But it was important that you heard what I had to say, because many of the comments I made concern you as well and I am not going to repeat them the next time. I will focus entirely upon the matters that concern you in the context of the way I have resolved the matter as best I can, in the time available to me,.
The practical problem that I raise with your counsel becomes more focused. I think he now will appreciate the issue that I am concerned with so you are concerned, thank you, Mr Charnock. You will have to go, thank you.
Mr Charnock, don't leave us I am sorry, I apologise, I have to fix a date for you. What is that going to be - do you know when we can get English Js - sit down, Mr Charnock? When are we going to get English Js remarks
WINCH: We are just making some attempts I do not know how long it is going to take, your Honour.
HIS HONOUR: They might even turn up this afternoon. I mean, I have not endeavoured to track them down but we need to fix a date. Assuming that her Honour has revised them--
DISCUSSION AS TO SUITABLE DATES
HIS HONOUR: I will put the matter in for mention at 9.30am and I direct a s 77 order and I will hear the matter at some point when I am available during that day if that is convenient. Is that suitable to you, Mr Crown?
CROWN PROSECUTOR: Yes, thank you.
HIS HONOUR: 15 July 2016?
CROWN PROSECUTOR: Yes, thank you.
HIS HONOUR: All I need is the remarks in relation to Mr Charnock, if there are other submissions to be made. I have raised the problem and the real problem is now in sharper focus in light of my orders. I am simply saying that I will do the best that I can on the 15th if we have got the judgment. That is all I can do with what I have got.
You are excused, Mr Doig, thank you very much for your assistance, thank you.
ADJOURNED TO THE DOWNING CENTRE ON FRIDAY 15 JULY 2016
[3]
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Decision last updated: 14 June 2017