Solicitors:
Solicitor for Public Prosecutions
Hugo Law Group
File Number(s): 2021/00093888
[2]
Judgment
This is an appeal by Nicholas Drummond following his conviction before a magistrate sitting at Hornsby Local Court on 21 July past. The circumstances giving rise to his appearance in that Court, not unknown to Hornsby Local Court, started at the Greengate Hotel.
I do not see the necessity of going into all of the detail of the background, other than to acknowledge that the situation in which the appellant went out with his mates and had, if I may speak in the colloquial, a skinful, had arisen against the background of a particularly unhappy and unfortunate 2020. The matters that had influenced him at that stage were, in no necessary order of priority, the breakup of a relationship with his girlfriend, surgery undertaken by his father, the death of a family dog, and a dropping out of the course that he was undertaking at university. Indeed, as senior counsel Mr Boulten, who appears on his behalf has pointed out, he had undertaken counselling or therapy, perchance organised by his concerned parents as a consequence of the problems that he was facing and dealing with both emotionally and in life generally through the course of last year.
The lockdown that had occurred in Sydney earlier in 2020 had of course been lifted by December and it was against that background that he found himself at The Greengate Hotel at Killara, which is certainly not unknown to have people of his age in an intoxicated state. In due course he made a lewd and completely inappropriate remark to a young lady, who he did not know, but whose dress, by virtue of what is attributed to him, might have been perceived by a 20 year-old former student from Knox to be provocative.
Having made the remark and walked past her, he was at the bar when the young lady approached him and in effect demanded that he say sorry for what he had said. He told her in inimitable fashion to "fuck off".
In due course nothing further unfolded at the Greengate. He was there until closing time, which was around midnight, before he and his mates, no doubt intent on continuing drinking, went to a set of premises in Chatswood, which has a longer licence and a later closing time.
At the Orchard Hotel it transpired, and I accept his evidence in response to some questions by myself this morning, that completely coincidentally the young lady and her accompanying girlfriend also turned up at the Orchard Hotel. The young lady, in what I think is accurately described as a provocative action, approached him at the public bar area and took a photo of him on her mobile phone. I am completely unaware whether anything was said about social media or whether he reached some thought process as to why she had taken the photo, but he responded reactively to the circumstance that had unfolded. He snatched the mobile phone from her. There was a tug-of-war with it. Staff intervened and ultimately she got the phone back and walked away.
In due course he was restrained from following her, where he obviously wanted to get hold of the phone and try and have the photograph that had been taken of him deleted. That led to the interaction of the security staff at the hotel. He was told to leave. There was a physical interaction of a kind which is almost notorious, and in the process of being physically ejected from the hotel, for reasons which are frankly beyond proper understanding, he threw a punch to a bystander in the hotel, who he did not know, and who on the material before me had done nothing to provoke or invite being the recipient of a punch.
It is described as hitting him to the left side of the head in an aggressive manner. I am not quite sure how much of an actual punch it was, but be that as it may, it was a common assault with which he was in due course charged. It was captured on CCTV footage which has not been tendered before me.
After the offender had left the premises, the young lady in question also left the hotel and ran towards the appellant to confront him, according to the police facts. The appellant turned around and hit her in the face with a right fist, knocking her to the ground. He was pulled away and swore at her. She attended the police station. The young man, no doubt perhaps sobering up and with the influence of adrenalin, then would appear to have been overcome emotionally. There is a suggestion that he threatened to jump off the car park of a nearby premises. He phoned his brother, who awakened his twin sister. His siblings came and picked him up, took him home, where he was emotionally overwrought and spoke with his mother in terms that she has described in full to the Court.
It goes without saying, as Mr Gourlie states, who ably acts on behalf of the Director's office for the Crown in these proceedings, that unprovoked, in effect, one‑punch assaults, although that is a connotative term and the utilisation of it in the circumstances of this particular case although literally correct bears no resemblance to the cases and the sequence of cases in relation to so‑called one‑punch assaulting, but be that as it may the single assaults upon the young lady and also the innocent bystander are matters requiring judicial appropriate disapprobation.
The intentional destruction of the young lady's phone, which he stomped on on the ground in the interchange outside the Orchard Hotel, was the subject of a release order by the learned magistrate without the recording of a conviction.
The present appeal is founded upon a challenge not to the finding of guilt, which is adhered to, but to the recording of a conviction. At 20 years of age this was something which, despite the unhappy year that he had had last year, is not something that this young man has been guilty of previously. It is properly to be viewed as an isolated event, a one-off. It occurred, as so often is the case, against a background of the inordinate consumption of alcohol and in circumstances where his loose tongue and loose thoughts commenced the entire interaction, after making an inappropriate comment to a young lady who was a complete stranger to him. I should, for the sake of completeness, indicate that he in effect called her a "slut" and told her to "put her tits away".
The inappropriateness of that comment led to her coming up to the bar and speaking to him, and things unfolded thereafter in the fashion that I have described in the earlier narrative.
In all of the circumstances the Crown advocates that it is important for general deterrence that there be a recording of a conviction. As Mr Boulten of senior counsel put very succinctly, I am well familiar with the observations of Harrison J in The Queen v Mauger [2012] NSWCCA 51. That, of course, was an appeal brought by the Crown against the imposition of a bond or a recognizance without conviction by Judge English of the District Court. The newly appointed Director of Public Prosecutions for New South Wales appeared for the Crown in that matter and she too is extremely familiar with the remarks of Harrison J.
The singular principle in Mauger was that it would be wrong to "assume that the decision not to record a conviction is automatically or necessarily co‑extensive with the imposition of an inadequate, or even a particularly lenient, sentence," (per Harrison J at [37]).
I am of the view that a 20 year-old young man, who has had an aberration in his behaviour on this one occasion, albeit that there were two victims in relation to his aggression on the night, particularly bearing in mind what cannot be gainsaid to be other than provocation from the second victim in pursuing the appellant, does, in my view still carry with it the necessity for a level of general deterrence. In my opinion, the entering into the requisite undertakings pursuant to s 10 without the necessity of a conviction being recorded achieves that outcome. By the Court imposing such conditions, the conditional release order carries with it the necessary connotation for general deterrence, and I, needless to say, embrace the analysis by Harrison J in that regard.
In all of the circumstances of the present matter and bearing in mind particularly the appropriate steps taken towards what the law describes as rehabilitation, the ultimate view that I hold is that the necessity for a conviction is not made out in this particular matter. I am of the view, as indeed was the outcome for Oliver Mauger, that the relevant principles regarding deterrence are more than adequately contemplated both by the terms and the duration of the conditional release order which, in my view, is appropriate and I do not see the necessity for the recording of a conviction.
The formal orders of the Court will be that the appeal is upheld. The conviction is quashed. The appellant is to be released upon condition that he enter a release order for a period of‑‑
I can just do a single one, can't I, Mr Boulten, or do I need to do - Mr Gourlie, do I need to do singular ones? I probably do, don't I?
GOURLIE: Yes, your Honour.
BOULTEN: You do, your Honour.
HIS HONOUR: All right. I will simply take the course of confirming the conditional release orders imposed by the magistrate. I do not propose to vary the lengths of them. Can they be backdated, Mr Gourlie, or do they have to run from today's date?
GOURLIE: No, your Honour, they run from today.
HIS HONOUR: All right, well that will have the effect of extending it slightly, Mr Boulten, but I would hold no fears that he's going to breach them. They will be for a period of nine months for the common assault against Mr Wilds, 14 months in relation to the assault of Ms Sheehan. I think the sequence 3 was in fact before me, is it not, Mr Boulten, from the initial appeal?
BOULTEN: It's actually there, it's attached to the appeal notice. If your Honour just confirms the orders of the magistrate with respect.
HIS HONOUR: I will, yes. Thank you very much for your assistance, Mr Boulten and Mr Gourlie. Mr Drummond, can I simply say this to you, you should thank your siblings for the way they assisted you on the night. I've got no doubt that you will thank your mother and thank your lucky stars, and keep your nose clean, young man, and good luck with the coaching when you are allowed to get back to it. All right, thank you, you're excused.
[3]
Amendments
30 September 2021 - Amended firm of solicitors.
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Decision last updated: 30 September 2021