R v Garth

Findings of Fact

1. On the night of 2 May 2014 there was a party for family and friends celebrating Myrik Ong's 21st birthday. The party was held at the family home situated in Rooty Hill.
2. The offender was the boyfriend of Christine Galvan, who is Myrik Ong's cousin. Although he was not invited to the party he attended the party, with Ms Galvan. Numerous family members and friends also attended the party, including the deceased, Raynor or Ray Manalad, who was one of Myrik Ong's closest friends.
3. The deceased was described by various witnesses as having fun at the party and in the opinion of most was affected by alcohol but was not intoxicated. During the party, the offender, his girlfriend and Myrik Ong consumed a considerable amount of alcohol and by midnight were intoxicated. The party was held in both the house and the backyard of the house, and although there was a gate which led from the backyard to Gosha Close, that gate was kept locked.
4. Sometime after midnight, Myrik Ong saw the offender at the back gate and asked him what he was doing. The offender said he wanted to go outside and Myrik Ong told him that he would need to go through the house and out the front. Whilst they walked through the house, the offender and Myrik Ong discussed the offender looking after Myrik Ong's cousin, Christine, and the offender's need to respect the family's home. According to the evidence of Myrik Ong, which I accept, the offender took some exception to this.
5. When they were outside the premises, Myrik Ong again told the offender he "should be looking after [his] little cousin" and to "respect the house" and to "calm down, relax". The offender responded by saying, "Fuck, I will". The offender and Myrik Ong walked down to the corner. Shortly after the offender, Myrik Ong and the deceased left the house, Emma Kongvongsa and Daniel Crimi also came out the front to have a cigarette. Mr Crimi asked the deceased if "everything was okay" and the deceased replied, "Yes, leave us be, everything is fine."
6. Daniel Crimi and Emma Kongvongsa sat near her car which was parked in Gosha Close, a short distance from the corner. At that stage the offender, Myrik Ong and the deceased were still standing together on the corner.
7. After about five minutes, Daniel Crimi's attention was drawn to yelling from where the three men were standing. The offender and Myrik Ong were yelling at each other for approximately ten seconds, after which the offender pushed Myrik Ong with both hands in the middle of the chest. Myrik Ong tripped over the gutter and sustained a fractured ankle. This conduct was the subject of a charge in respect of which the jury were unable to agree on a verdict and will not be the subject of any further proceedings. The deceased was heard to say, "Oi, what are you doing? What did you do that for?" Myrik Ong could not see what was happening as he was trying to get up off the ground.
8. Upon hearing the yelling between the three men, Emma Kongvongsa went to investigate. The evidence of Daniel Crimi was that he saw the deceased gripping the offender's shirt and chest area. Emma Kongvongsa described seeing the deceased approach the offender with his hands up, with his palms flat, and his elbows bent with a 45 degree angle between the forearm and the upper arm. She observed the offender's feet to be "kind of jumping," with his hands clenched into fists and against his chest at shoulder height.
9. Rebecca Graham was standing near her car outside a house close by having a cigarette. She heard yelling from the direction of the residence of Myrik Ong and she exited her vehicle so that she could see what was happening. She observed a male take his shirt off and observed the same male "jumping around on and off the gutter".
10. Ms Graham said she heard the male saying that he would "take everyone on". She saw the deceased come out of the premises and described him as looking like he was trying to calm the person who was jumping on and off the gutter. She described the deceased as having open palms facing out. She gave evidence that between five and ten seconds after the deceased approached the offender, the offender swung a closed-fist punch with his right hand which struck the deceased in the side of the face.
11. Ms Graham identified the offender as the male who was "bouncing on and off the gutter and then he's gone whack and he punched the guy that was standing there with open palms facing out." The deceased fell straight to the ground and tragically never regained consciousness. The punch constitutes an assault and caused injuries which resulted in the death of the deceased the following day, 4 May 2014. At the time he punched the deceased, the offender was over the age of 18, being 21 years' old, and was intoxicated by alcohol.
12. The incidents involving the offender occurred at around 1am on 3 May 2014 and police arrived a short time later. At 2:48am police conducted a breath analysis which showed the offender had 0.174 grams of alcohol per 210 millilitres of breath. The offender was taken to hospital where a blood sample was taken at approximately 4:08am. At that time he was observed to be "slightly sobering up" compared to when he was first seen by police. The sample was later analysed and found to contain 0.185 grams of alcohol per 100 millilitres of blood.
13. During his interview with police, the offender was asked whether he remembered punching the deceased in the face and he replied (p 7 question 75): "I remember putting my hands up and making a swing. That's protecting myself after hands had been placed on me while I was talking to the 21st birthday boy…after being belittled and that was it." The offender later stated, however, he could not recall punching the deceased.
14. The later suggestion, although unclear, that the deceased may have grabbed the offender around the throat or twisted up the collar area of his shirt with any degree of force, as put forward by the offender in his record of interview, must be rejected having regard to the totality of the evidence beyond reasonable doubt.

Section 166 Offences

1. The offender was also charged with one offence of common assault and a further offence of affray. Both allegations arise from the events that night after the offender struck the deceased. Both allegations have been transferred to this Court for determination. The offender pleaded not guilty to both offences and both the Crown and Counsel for the offender rely on the evidence adduced at trial. No further evidence is to be called in respect of these allegations.
2. Counsel for the offender concedes that swinging punches at Daniel Crimi, if not done in self-defence, would amount to common assault. In respect of that allegation, it is the evidence of Daniel Crimi that when he saw the offender punch the deceased and the deceased fall to the ground, he immediately went over and attempted to restrain the offender. He tried to get the offender as far away from the deceased as possible by moving him towards the middle of the road by gripping his shirt and pushing him back. The offender was aggressive, began yelling and swung a number of punches towards Daniel Crimi's face who was, however, able to hold the offender at arm's length and none of the punches connected.
3. According to the evidence of Daniel Crimi he was restraining the offender to get him away from where the deceased was after he had been punched. During his evidence he described holding the offender "at bay" with his right hand and said the offender was still being aggressive: he was still swinging and "still throwing punches towards [his] face." He then said (Tcpt p 107 line 35): "…luckily my - I'm taller so my arm's length is more than an arm's length for him, there's a very good chance he could have hit me had I not been doing that."
4. Under cross-examination he agreed that after he saw the offender hit the deceased he grabbed him by the shirt and pushed him to get him away from the area. He stated that at the time he was playing the role of a peacemaker and that the offender was aggressive and was yelling. He agreed that the offender was also swinging at him. He maintained that he was holding the offender at arm's length as a restraining mechanism and was not being violent towards him. He stated that he "kind of marshalled" the offender away from the area where the incident happened and that the offender was trying to get at him. He stated that he then let the offender go when the other people came out of the house and proceeded to restrain the offender. I am satisfied Mr Crimi's actions were consistent with his attempts to get the offender away from the situation.
5. The offender has not given evidence in these proceedings. During his interview with police, his recollection of events was at times vague. His answers to questions were often not responsive. No specific reference is made during the interview with police in respect of the offender swinging punches towards Daniel Crimi. There is evidence that both prior to and after attempting to throw punches at Mr Crimi, the offender was acting in an aggressive manner.
6. I am satisfied the throwing of punches at the face of Mr Crimi was not a reasonable response by the offender in circumstances as perceived by the offender. I am satisfied beyond reasonable doubt the offender was not acting in self-defence. I find the offence of common assault proved beyond reasonable doubt.
7. In respect of the offence of affray, the Crown relies on the evidence of what occurred after the deceased was punched and after the offender attempted to punch Daniel Crimi. The Crown submits that the offender used and threatened unlawful violence towards Dominic Lattouf and other persons and that his conduct was such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.
8. Following the assault on the deceased, Emma Kongvongsa went inside the house and returned with Dominic Lattouf, who observed the offender to be in the middle of the road yelling and looking distressed and angry. He described the offender as red-faced and flustered. According to the evidence of Dominic Lattouf, after he saw Daniel Crimi holding the offender back, he described the offender's face as being flustered and that he was angry. He also described his face as being red.
9. He recalled racing up to the offender and holding him and grabbing him because he did not want him to continue to fight. He described the offender as trying to get out of his grip and was yelling and at one stage grabbed his shirt and ripped it down. He later agreed (Tcpt p 157) that at one stage he screamed at the offender repeatedly, saying, "What did you do," and that the offender's response was slurred and he could not understand what he was saying. He agreed that when restraining the offender, "[he] was yelling and carrying on."
10. According to the evidence of Leonard Coronel, when the offender was being held back he was swearing and being aggressive. He recalled him saying, "'I told you not to fuck with me' or something along those lines." Jason Leigh recalled (Tcpt p 227) the offender as screaming a lot when he was being held back and when asked what the offender was saying he replied, "Just death threats kind of thing." When asked what death threats he replied, "Come at me or something", "I'll have a go at anyone". When asked the exact words he replied, "'I'll take on anyone,' I think is what he said".
11. Daniel Crimi stated that Myrik Ong's father, Emmanuel Ong, came outside when the offender was being restrained up against the fence and, on the evidence, after Dominic Lattouf's shirt had been torn. Emmanuel Ong gave evidence and said that when he was outside he shouted at the boys who were restraining the offender and was "trying to avoid them to hurt [the offender]," because they were "cornering [the offender]." He then said he tried, in his own words, "to secure [the offender]". At one stage he recalled the offender saying, "I love the family."
12. In cross-examination he agreed that he had said in his statement: "I thought they [referring to Dom and Daniel] were going to hit Hugh and I moved in front of Hugh and Dom and Daniel let go of Hugh." He agreed that he also said: "Hugh was yelling out and swearing. I couldn't hear everything he was saying."
13. I am satisfied Mr Lattouf's intention was to restrain the offender from further violence. I am satisfied the actions of the offender towards Mr Lattouf including ripping Mr Lattouf's shirt whilst he continued to act in an aggressive manner and make threats constitutes unlawful violence. I am satisfied beyond reasonable doubt the offender was not acting in self-defence when he ripped Mr Lattouf's shirt. In doing so, I have regard to the offender's ongoing aggressive behaviour both before and after this incident. I am satisfied the offender used and threatened unlawful violence and that his conduct would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, and I find the offence of affray proved beyond a reasonable doubt.

Victim Impact Statement

1. The deceased's mother, Teresita Manalad, spoke to the Court. Her Victim Impact Statement was also provided to the Court.
2. Mrs Manalad spoke of the loss of her son, which has completely changed her life and that of her family. Her son had become a registered nurse and was passionate about helping people. In her words, "It was a needless death of an innocent young man." Mrs Manalad spoke of the family's devastating loss and showed enormous courage and strength when speaking of her son's life which was cut short by the actions of the offender.
3. I wish to extend my deepest sympathy to the family members in their loss and would also say that every unlawful taking of a human life harms the community in some way: R v Halloun [2014] NSWSC 1705 at [46] (McCallum J).

Offender's Subjective Circumstances

1. The offender did not give evidence during the sentencing hearing.
2. A report by Mr Bradley Jones, Forensic Psychologist, dated 26 October 2017 was tendered by consent. Pars (4) and (5) of the report state: "In summary, assessment of Mr. Garth revealed he was raised in a home environment characterised by love, affection and support from his mother. His childhood is relatively unremarkable and he appears to have achieved expected developmental and educational milestones. After his parents [sic] separation he and his siblings moved with their mother to the Blacktown area where he found it difficult to adjust to a change in his locale and family structure. During his high school he was subject to bullying behaviours and as a method of limiting this behaviour upon him, he began associating with the 'bullying group' of students. "He was subsequently influenced by these older boys resulting in continuing defiant type behaviours and eventual expulsion from high school. His late adolescence and early adulthood appears to have continued upon a delinquent type anti-social path, with associated difficulties in undertaking expected pro-social behaviours and expectations. Results of assessment indicate Mr. Garth does not suffer any mental condition or disorder. "In terms of formal diagnoses, Mr. Garth [is] not suffering any mental condition or disorder."
3. Under the heading 'Opinion' the report notes, at par (23): "The results of the LSI-R indicate that Mr. Garth is at moderate risk of re-offending. Identified areas of criminogenic need are Education/Employment; Alcohol/Drug Problem." (Footnotes omitted.)
4. The report then sets out a risk management and treatment plan which would include: 1. Alcohol and drug abuse counselling; 2. Anger management education/training; 3. Vocational education and social skills training; 4. Psychotherapy to address his impulsiveness, and conformation to social norms; 5. Upon his eventual release, monitoring by Community Corrections of the offender's non-custodial environment and support networks to limit destabilising influences and to build effective support systems.
5. An affidavit by the offender's mother, Rafaela Bacalla Garth, was tendered by consent. In her affidavit she describes the offender's early upbringing and describes him as "a very happy boy" when the family was living in the Northern Beaches.
6. The offender's parents separated and in 2006 the offender's mother and her four sons, including the offender, moved to Blacktown. After moving there, the offender's mother saw changes in the offender's behaviour and described him as being "not happy anymore" and said he would use bad language and was getting angry quickly and associating with friends who she described as "not good". In Year 9, the offender was expelled from school and did not further his education. She also described the relationship between the offender and Christine Galvan and said that they used to argue a lot.
7. In her affidavit she states that she continues to visit her son in custody and provides continued support for him. When visiting her son, she said the offender has informed her that he was sorry and sad about what occurred on the night in question.

Legal Principles

1. The offence of assault occasioning death is objectively serious. Both the minimum and maximum penalties provide a sentencing yardstick. I refer to my earlier decision of 27 October this year where I held that s 25B of the Crimes Act, which sets out the mandatory minimum penalty, is both constitutionally valid and acts as a yardstick: Garth v R [2017] NSWDC 469.
2. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [31]: "[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick."
3. These considerations are equally applicable when considering the mandatory minimum term, which is one end of the statutory yardstick: see Magaming v R (2013) 252 CLR 381; [2013] HCA 40.
4. It should be noted that when considering the objective gravity of the offending behaviour for offences of this type, s 25A(1)(a) of the Crimes Act relevantly provides: 25A Assault causing death … (a) the person assaults another person by intentionally hitting the other person with any part of the person's body or with an object held by the person…
5. The section confines an assault to "intentionally hitting". It is arguable, for example, that a mere push would not be included in what would constitute "hitting" under this section. The section, therefore, would not include other less serious examples of assault when assessing the gravity of the offending behaviour for any particular case.
6. After the offender pushed Myrik Ong, who fell to the ground and sustained an injury, the deceased approached the offender. At one stage the deceased had his hands up and grabbed the offender's shirt and remonstrated with him. The offender punched the deceased with a closed fist to the head with considerable force. He fell and hit his head on the kerb and never regained consciousness.
7. The offender's act was not done in self-defence. Although I would accept that at one stage the deceased held onto the offender's shirt around the chest area, he at no stage either attempted to strike or verbally threatened the offender. According to the evidence of Emma Kongvongsa, the deceased was trying to calm the offender down. At this time the offender was already in a highly agitated state. This is supported by the evidence of Rebecca Graham.
8. Although objectively serious, I would accept that the assault was a spontaneous one involving a single punch to the face. There was no degree of planning involved, nor could it be said to have been a sustained attack. I would assess the objective seriousness for offences of this type as being well below the mid-range, but not at the lowest end. The offence is, however, objectively serious, as evidenced in the maximum and minimum penalties. Any assault which results in the death of another person, as in this case, must be met with significant deterrent penalties.
9. The offence was committed whilst the offender was subject to conditional liberty, being subject to s 9 good behaviour bonds for the offences of common assault and contravening a domestic violence order. The fact that he was subject to conditional liberty is an aggravating factor to be taken into account when sentencing the offender. The fact that the offender was subject to a good behaviour bond for an offence also involving violence whilst intoxicated is more aggravating. The offender attended the party in the company of the victim in those proceedings; although, there is no suggestion he was in breach of any court order in doing so.
10. The offender has not given evidence in these proceedings. Notwithstanding what is noted in the psychologist's report, where the offender told the author, "I wish it had never happened," and the evidence of his mother who, according to her affidavit, said her son felt sorry for what happened that night, I would afford little or no weight to the evidence of remorse where the offender has maintained his innocence throughout and at no stage has he acknowledged his responsibility for his actions to the Court.
11. Although I would accept the offender's criminal record is not an aggravating factor and could not be described as being significant, noting that he has not been previously sentenced to any form of imprisonment, nevertheless, it could not be said that his offending behaviour is an aberration.
12. I could not be satisfied the offender's prospects of rehabilitation are good. In doing so, I note the offender has been assessed as a moderate risk of reoffending and, as noted, was subject to good behaviour bonds for common assault and breaching a domestic violence order at the time of these offences.
13. In sentencing the offender I have regard to both the principles of specific and general deterrence. In respect of the principle of general deterrence, Hoeben CJ at CL (McCallum and Schmidt JJ agreeing) said in Pattalis v R [2013] NSWCCA 171 at [23]: "Over recent years, the incidence of such offences, particularly when associated with the excessive consumption of alcohol, have been all too frequent. Such offences are a cause for grave disquiet and the community is understandably angry and frustrated at their occurrence. Regrettably, it is now notorious (as his Honour recognised) that a single punch can not only cause catastrophic injuries but also death. For offences of this kind, the community has the rightful expectation that judicial officers will impose meaningful penalties."
14. There can be no doubt that it is all too common in our community for young men to commit serious acts of violence after having consumed excessive amounts of alcohol. Such conduct must be properly denounced by the Courts, which should impose sentences that would act as a deterrent to others.
15. In respect of the previous offences of common assault and contravene a domestic violence order, where s 9 bonds were originally imposed, both bonds are revoked as a consequence of these subsequent offences. In respect of both offences, I am satisfied that the only sentence which can be imposed is a sentence of fulltime imprisonment, having regard to the gravity of the offences, as set out in the facts, and also noting that no other alternative to fulltime imprisonment is available to the Court as a consequence of the fresh offences.
16. In respect of both offences, I note that pleas of guilty were entered late in the Local Court. I would have imposed a sentence of 8 months' imprisonment in respect of each offence. Taking into account the offender's pleas of guilty in the Local Court, he is sentenced to a term of imprisonment of 7 months in respect of each offence. Those sentences are both to commence from the time the offender went into custody, being 3 May 2014.
17. In respect of the offence of common assault upon Daniel Crimi, the maximum penalty is 2 years' imprisonment. I am satisfied the offending behaviour was below the mid-range but not towards the lower end of objective seriousness for offences of this type, noting that the punches did not connect with the victim.
18. In respect of the affray, the maximum penalty is 10 years' imprisonment. I would accept the affray was more towards the lower end of objective seriousness, noting the offender was being restrained at the time.
19. In respect of the offence of common assault, the offender is convicted and sentenced to 6 months' imprisonment. In respect of the affray, the offender is convicted and is sentenced to 9 months' imprisonment. Both sentences are to be partially accumulated on the first sentences and are to commence on 3 August 2014.
20. I propose, however, for those offences to be served concurrently with the sentence for assault occasioning death, given that, although they are separate offences, they may be said to have arisen out of the same episode.
21. In respect of the offence of assault occasioning death, when considering the sentence to be imposed, it is important to note the provisions of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Although subs (1) requires the Court to first set the non-parole period, such a requirement does not mean that the non-parole period must be determined first: see Musgrove v R (2007) 167 A Crim R 424; [2007] NSWCCA 21 at [44]. The non-parole period must, however, be pronounced first. Subsection (2) provides that the balance of the term must not exceed one third of the non-parole period unless special circumstances are found. However, there is no corresponding rule that the balance of the term of imprisonment must not be less than one third of the non-parole period.
22. In respect of this sentence, I am mindful that the additional term is to be less than one third of the non-parole period. This inevitably flows as a consequence of the mandatory minimum non-parole period as set out in s 25B of the Crimes Act, which to that extent is not inconsistent with s 44(2) of the Crimes (Sentencing Procedure) Act.
23. In respect of the offence of assault occasioning the death of Raynor Manalad, the offender is convicted and sentenced to a non-parole period of 8 years' imprisonment. The balance of the term is 2 years' imprisonment. The total term of imprisonment for this offence is therefore 10 years' imprisonment.
24. That sentence is also to commence on 3 August 2014, being partially accumulated on the first sentences. The non-parole period will expire on 2 August 2022; the offender is therefore eligible to be released to parole on 2 August 2022.
25. The total period of imprisonment is therefore 10 years and 3 months. The total non-parole period is 8 years and 3 months.

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