R v Downes

District Court of NSW|2019-11-01

Solicitors: J McWhirter (DPP) J Marsh (Marsh Blom Lawyers) (Offender) File Number(s): 2018/00386430

SENTENCE

HIS HONOUR: The offender pleaded guilty in the Local Court and adhered to those pleas before me to the following three offences. That on 15 December 2018 at Penrith he used unlawful violence towards Kaden Waters and Brendan Hardacre, and that such conduct would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. That is an offence of affray under s 93C of the Crimes Act and has a maximum penalty of ten years imprisonment. The second offence is that on the same date and place the offender assaulted Rebecca Crowley, thereby occasioning her actual bodily harm. That is an offence under s 59 of the Crimes Act and there is a maximum penalty of five years imprisonment. The third offence is that on the same date and place the offender recklessly wounded Jordan Clark. That is an offence under s 35(4) of the Crimes Act and has a maximum penalty of seven years imprisonment with a standard non-parole period of three years.

Assessment of Objective Seriousness

I turn then to my assessment of the objective seriousness of the three offences. The whole incident from which the charges arose is a shocking example of a relatively young man engaging in alcohol-fuelled violence, something which the Court sees, regrettably, on far too frequent a basis, and something which no doubt the community is heartily sick of. The affray offence was in a public place. In terms of this offender's role in it, it involved punching the person Waters, punching the person Brendan Hardacre with an uppercut to the face, which caused him to fall onto the ground. This offender then stomped on his head. This offender also kicked Waters to the head while on the ground. These acts of violence were separate to the acts of violence which constitute the other offences for which the offender is to be sentenced.
The agreed facts record that Mr Waters and Brendan Hardacre both believe they had been knocked out during the affray, but fortunately neither required medical intervention. Kicking to and stomping on the head of a person while they are on the ground are very serious acts of violence. I consider that this offence, objectively speaking, is a little below a mid-range offence.
The assault occasioning actually bodily harm concerns a single punch to the face of a young woman, who was seeking to intervene, resulting in bruising and swelling to her left cheek. The CCTV footage shows just how forceful that punch was. Although only a single punch was involved, as has frequently been observed, that is all it takes to potentially cause catastrophic injury and death when that punch is to someone's head. I assess the objective seriousness of this offence as towards the lower end of the spectrum, given the low level of injury.
The reckless wound offence involved the use of a weapon which is an aggravating factor. The strike with the pool cue is to the face of the victim. It occurred when other people and the security guard, were endeavouring to intervene. The injuries to Mr Clark were fortunately not at the upper end of the spectrum, but did require suturing and it was an injury near an eye. I assess the objective seriousness of this offence as being a little below the mid-range level of objective seriousness.
In terms of aggravating factors, under s 21A(2) of the Crimes (Sentencing Procedure) Act the Crown pointed to the offender's earlier conviction for affray, and to the fact that a weapon was used in the reckless wound offence. I have taken the fact that a weapon was used into account in my assessment of the objective seriousness of the offence to avoid double counting. I do not consider that the offender's record is an aggravating factor under s 21A(2).
I do not consider there was any significant provocation here. The offender, after what was clearly an initial dispute with the other group, re‑entered the hotel and re-entered the pool room and began to engage in the violent conduct, the subject of the charges. The fact that the offences were committed while the offender was under the effects of alcohol is not a mitigating factor.

Offender's Subjective Case

I turn then to the offender's subjective case. His date of birth is 14 October 1989, so he is currently 30 years of age and was 29 at the time. He is still, as I say, a relatively young man, but not what might be termed a young adult offender. He has one prior offence on his record, being that of an affray in 2012. He received a fine for that offence. The facts concerning that offence were placed before me. They show that that offence, like the current offences, were committed in licensed premises, and that alcohol was a factor. The past offence was similar to the current one, although considerably less serious. It also occurred some six years prior to the current offences, when the offender was a much younger man. In these circumstances, I do not consider that his record disentitles him entirely to some leniency here, although I must have regard to that offence when I impose sentence, given its nature.
The material provided in support of his subjective case establishes that he is otherwise a person of good character, and I will shortly discuss that material. I have before me a report by a psychologist, Mr Sam Borenstein dated 16 October 2019, a letter by a psychologist, Ryan Spencer dated 30 July 2019, a report by a counsellor Lisy De La Chaise dated 17 October 2019, and a sentence assessment report dated 28 October 2019. I have also received letters from the offender, his wife, his parents and his parents-in-law. The offender also gave evidence, as I say, before me.
In terms of his family background, the subjective material provides a brief overview of his upbringing. He has an older brother now aged 32 and a younger sister aged 26. He described his upbringing as "okay", however noted regular conflict between his father and older brother. The subjective material otherwise indicates the offender has a positive relationship with his family. The offender resides with his partner of four years in their own home, which they have only recently established in somewhat difficult circumstances.
There are a number of testimonials before me, as I say, from the offender's partner, his parents, and his parents-in-law, all of which demonstrate that he has the capacity to be a law-abiding, worthwhile member of our community. I note he is supported in Court today by his partner, parents and other supporters.
In terms of his education and employment history, the material before me establishes that he attended school until year 10. After leaving school he worked as an assistant in a printing factory for six months. He joined his father who works at Aldi, via a labour hire company. He then worked with Schweppes for seven years doing factory duties on a casual basis, and he is now in full-time employment with Crown Forklifts and has been since 2016.
It is evident from the subjective material that the offender has had a problem with excessive alcohol consumption in the past. Mr Borenstein notes in his report that this results in the offender having a propensity towards anger. Mr Borenstein also notes in his report a history of similar issues in the offender's family, not in his immediate family, but with certain members of the family in relation to alcohol. The offender in his evidence acknowledged that issue, and gave evidence, which I accept, that he has not used alcohol since the offending.
In terms of his psychological history, the offender reportedly sought treatment for depression and anxiety prior to the offending. He was treated with an antidepressant for two months. He recommenced treatment with that antidepressant after the offending. At the time of his assessment Mr Borenstein reported that the offender has symptoms of extreme depression, anxiety and stress, no doubt some of which was related to the fact he faced serious criminal charges.
After the offending the offender was referred by his GP to Mr Ryan Spencer and he has had ten sessions of counselling with Mr Spencer to date. In terms of his attitude to the offence, the offender acknowledged to the author of the sentence assessment report that he accepted that his response in the circumstances was excessive and his actions had been inappropriate. I note there were even expressions of remorse when he was interviewed by the police.
The author of the sentence assessment report stated that the offender expressed regret for his offending behaviour and the injuries he inflicted upon the victims. Mr Borenstein likewise reported the offender's expressions of guilt and remorse and that the offender impressed upon him his motivation to ensure that his offending behaviour is never repeated. Mr Borenstein reported the offender's acknowledgement that alcohol and anger management were closely linked with his offending behaviour and he accepts that to minimise future offending he must abstain from alcohol and learn how to manage his anxiety and depressed mood in more effective ways.
Similar expressions of remorse were made by the offender today when he gave evidence before me.
In relation to his mental health, as I have said, the offender has been attending regular appointments with a psychologist. It has been recommended that he continue with psychological therapy. In relation to his alcohol use, the offender has been attending Alcoholics Anonymous and has reportedly been attending sessions weekly. He reports that he has been abstinent since the offending, and I note that evidence he gave today. In relation to his anger management, the offender has participated in sessions of anger management with Ms Lisy De La Chaise. Ms Lisy De La Chaise evinces the opinion that the offender's likelihood of reoffending will be reduced if he applies some of the techniques he has learned in relation to his anger management.
As I say, the offender entered an early plea of guilty in the Local Court and I will allow him a 25% discount of his sentence for the utilitarian value of his plea. The early plea of guilty, together with statements he has made to the report writers and his evidence today satisfies me that the offender has genuine remorse for his offending. He has good prospects of rehabilitation. He has a limited criminal history, a supportive family and employment. He has commenced, since the offence, courses and counselling to deal with his undoubted problem with alcohol. I am satisfied that he has good prospects of rehabilitation.
There is a limited issue of parity in this sentencing. The co-offender Stuth was dealt with in the Local Court for an offence of affray only. He was sentenced in the Local Court to a term of imprisonment of 15 months to be served by way of an intensive correction order. In my opinion Stuth's involvement in the affray was not as significant as that of this offender. It is this offender who returns into the pool room and immediately engages in unlawful violence. It is this offender who stomps on one victim's head and kicks another's head while they are on the ground.
I note also the co-offender was a person with no prior criminal record for violence. I have had regard to the sentence that was imposed in the Local Court on the co-offender when determining the appropriate indicative sentence on the affray count in relation to this offender.
I will utilise the aggregate sentencing provisions. If I had not done so I would have imposed sentences which were partially accumulated in order to reflect the fact that there were three different victims involved in the offending, although I acknowledge there was the one incident.
I have had regard to the objects of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender's conduct, recognising the harm done to the victims and the community and rehabilitation of the offender. As the Court of Criminal Appeal has said on many occasions, alcohol related violent offending by relatively young men is far too frequent in our community. Such offences are of very real concern to the community, who look to the Courts to impose significant sentences in relation to such offending.
General deterrence looms large when sentencing for such violent offences as those committed here, and the sentence I impose must properly reflect general deterrence, that is sending a message to the community that such drunken violent offending has no place in our community. There was no debate that the only appropriate sentence was one of some form of imprisonment when submissions were put to me earlier today. There was debate before me, should the sentence be one of three years or less, as to how that sentence was to be served.
Shortly it will be seen that I consider that an appropriate aggregate sentence is one of three years imprisonment. I was urged by counsel for the offender to consider imposing that sentence by way of an intensive corrections order. I have given that submission careful consideration, but have reached the decision that to impose a sentence which allowed this offender to serve it in the community would not properly reflect the objective seriousness of these offences and the principle of general deterrence.
The maximum penalty in relation to the reckless wound offence and the standard non-parole period have been taken into account as legislative guideposts, as explained by the High Court in Muldrock v The Queen (2011) 244 CLR 120.
As I said, I will utilise the aggregate sentencing provisions. I will firstly record the indicative sentences and in relation to the reckless wound offence, the standard non-parole period.
I am satisfied on the evidence, as I say, the offender has good prospects of rehabilitation and has commenced his rehabilitation, although it is not yet complete. His prospects of rehabilitation will be assisted if he has a longer period on parole than that provided by the statutory ratio. I note that this will be his first time in custody. I therefore make a finding of special circumstances when fixing the non-parole period. I have had regard to all of the objective circumstances of the offences and the subjective case of the offender when determining the indicative sentences and setting the aggregate term.

Orders

Please stand up Mr Downes. Mr Downes you are convicted of the three offences to which you have pleaded guilty. The first set of sentences you will hear are what are called indicative sentences. They are not the sentences that you will serve. You will then hear an aggregate term of imprisonment with an aggregate non-parole period and that is what you will serve.
The indicative sentences are as follows. On the affray offence there is an indicative sentence of two years imprisonment. On the assault occasioning actual bodily harm offence there is an indicative sentence of nine months imprisonment. On the reckless wound offence, there is an indicative sentence of two years imprisonment, with an indicative non-parole period of one year and four months. You are sentenced to an aggregate term of three years imprisonment with a non-parole period of two years. That sentence commences today, 1 November 2019, and expires on 31 October 2022. The non-parole period expires on 31 October 2021. The earliest date you may be released to parole is the date of the expiry of the non-parole period, which is 31 October 2021. Whether you are in fact released to parole that day is a matter for the State Parole Authority, which will have regard to how you behave in prison in determining whether you are released that day. Just have a seat.
HIS HONOUR: Is there anything further?
MCMAHON: Not from me, no.
MCWHIRTER: No.
HIS HONOUR: I will adjourn and Mr Downes will need to go with the officers.

Amendments 06 December 2019 - Legal representatives DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2019

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