The offender, James Christiansen, appears for sentence today having pleaded guilty to a single count of recklessly cause grievous bodily harm, being sequence 1 of charge number ending 605 in breach of s 35(2) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of ten years imprisonment with a standard non-parole period of four years imprisonment.
The offending occurred on 14 November 2019. He was committed for sentence in the Local Court on 14 August 2020 at which time another sequence was withdrawn. No time has been spent in custody as a result of this offending.
The facts relating to the offending are set out in the statement of Agreed Facts at tab 3 of Exhibit A. The offender was born on 22 October 1988. He was 31 years of age at the time of the offence. He is the uncle of the complainant. At the time of the offence the offender resided in Narara with his partner, Ms Turner, and the victim, Draye Patrick (born in July 2001). He was 18 at the time of the offence. The victim resided in Belmont, however, at the time of the offence was staying with the offender.
On 14 November 2019 the offender and the complainant both took LSD. The offender said they had done this together on three or four prior occasions although I note that there may be evidence elsewhere that it was just two. In any event nothing much turns upon that. The two men were in West Gosford when they took the drug at about 3pm. They returned to the offender's house at 3.30pm. At around 5.15 to 5.30pm Ms Turner arrived home from work where the offender and the victim were seated and talking in the lounge room area.
The following facts relate to what is described as "altercation one". Ms Turner and the offender reported that around 6pm the victim began to attack the offender without warning, firstly throwing punches at him and then placing him in a chokehold with his arm around the offender's neck. The offender said he was being choked out. Ms Turner went to the assistance of the offender, at which point she alleged that the victim grabbed her around the waist and threw her across the room where she collided against some furniture. Exhibit 2 in the sentence hearing are photographs of injuries suffered by Ms Turner indicating bruising or red marks in the area of her left arm, both in the upper arm and forearm.
R v James Christiansen [2020] NSWDC 904 | Case summary | Zoe
The victim then straddled across Ms Turner on the ground and began throwing punches at her. Ms Turner reported that she curled herself up on the floor and put her arms in front of her face to protect herself from this attack. The offender reported that he was yelling at the victim to stop attacking Ms Turner, who he thought was being choked by the victim. Taking hold of a baseball bat that was close by in the room the offender stated that he warned the victim that he would hit him if he did not desist. He then hit the victim once across the face with the bat causing the victim to "go down" at which point the victim sat back down on the lounge. Ms Turner reported that she did not see anything occur from the position she was in on the floor. Sensing that it had become safe for her to get up, she took her phone from her bag on the lounge and stated that she went out the front door to the courtyard at the front of the property where she called triple-0.
The following facts refer to what is referred to as altercation two.
Can I just pause there for a moment, gentlemen. The way these Agreed Facts have been prepared is that the offence under 35(2) is said or appears to relate to the second altercation not the first altercation. The signed facts, if you have them there, have the heading "altercation two", beneath that "Reckless Grievous Bodily Harm s 35(2) of the Crimes Act".
MACMILLAN: Yes, your Honour.
HIS HONOUR: So the Crown case doesn't rely upon the first strike of the baseball bat across the face. The plea is in respect of the subsequent attack with the baseball bat. Is that correct?
MACMILLAN: With the understanding that altercation one is the context or?
HIS HONOUR: But it is contextual. So the question of provocation therefore, or diminishing provocation therefore becomes relevant in that whilst I consider the provocation in relation to the first strike is made out, there's less provocation in relation to the subsequent offending.
MACMILLAN: That's the Crown position, your Honour, yes.
HIS HONOUR: Mr Stitz, do you understand that to be the Crown case?
STITZ: That there is a diminution of--
HIS HONOUR: No, sorry to interrupt you. But there were two altercations, one is in the facts as context, that is the first strike. And the offence under s35(2) relates to the second and other strikes.
STITZ: No, I had considered it, your Honour, as an ongoing course of conduct where at some point after the initial strike his conduct was reckless. That can be divided up I suppose--
HIS HONOUR: The only reason I raise it is that's how it appears in the facts.
STITZ: I note that.
HIS HONOUR: Are you saying the first strike was therefore intentional but contextual in relation to this sentence?
STITZ: Not in the sense of it intentionally inflict grievous bodily harm, no, I don't say that.
HIS HONOUR: What was the other charge which was dismissed? It was cause grievous bodily harm which was sequence 2. That was withdrawn I should say in the Local Court.
STITZ: Cause grievous bodily harm with intent.
HIS HONOUR: Yes. So did that relate to the first strike?
MACMILLAN: No, not specifically, your Honour.
HIS HONOUR: Should I place any weight on the fact that the way the facts have been drafted suggest that the first strike was merely contextual and the sentence relates to the subsequent strikes? The only reason for me raising it is because it's under altercation two that the offence provision is referred to and it follows, therefore, that the facts which commence at paragraph 12 are the facts agreed for sentence in relation to the charge.
STITZ: For convenience of description' sake, one can delineate the conduct, one can attempt to delineate the conduct after the initial assault on the offender and then the assault on Ms Turner. Ms Turner leaves so she certainly can't be the subject of an ongoing threat. There's no gap in time of any moment. For convenience sake just splitting it up, your Honour, the labels could be of assistance.
HIS HONOUR: Well can I say this to you. If it's agreed that the facts which inform the offending occurs from strike two onwards then provocation is of diminishing relevance.
STITZ: I've conceded that provocation was of diminishing relevance as the incident went on in terms of the concept of acting in respect of a threat. A slightly different position to your Honour. But your Honour, in my respectful submission it would be artificial to attempt to divorce and categorise--
HIS HONOUR: I'm not doing that. It is the way that these facts which have been signed by the parties does it. It would be open to the parties by consent if you were both agreeable to simply delete reckless grievous bodily harm under the heading altercation two so that all the facts inform the offending.
STITZ: That would in my submission be the appropriate thing to do, your Honour.
HIS HONOUR: That is certainly how the sentence hearing progressed.
STITZ: Yes, and that's how I also pitched, for want of a better expression, my submissions.
HIS HONOUR: Yes. What's the Crown's attitude to deleting that line in bold halfway down p 2?
MACMILLAN: I think the Crown's position is that it's not of such substance that it requires further discussion, so if that's the proposed way forward the Crown would agree.
HIS HONOUR: Very well. I'll request my associate at p 2 of the Agreed Facts behind tab 3 in Exhibit A under the heading "altercation" to delete the words which appear there in bold.
Returning to the Agreed Facts. Under the heading altercation two, the offender did not go outside with Ms Turner, instead he remained in the lounge room area with the victim and with the baseball bat. The offender reported that whilst Ms Turner was on the phone he repeatedly warned the victim that he would strike him again with the bat if he did not desist. He reported that the victim continued to try to attack him. He swung the bat from a position kneeling on one knee on the floor of the lounge room and whilst he did not see where it hit the victim, he felt around half of the swings made contact.
Ms Turner stated that whilst the front door was open she could not see what was happening inside and did not hear anything. She stated that she did not see the baseball bat but acknowledged there was one in the house. When she called triple-0 she requested police assistance and an ambulance. When asked by the operator if she was bleeding she responded that she was not and that "He needs more assistance than what I do" and the victim was probably unconscious. Ms Turner later stated that she did not observe the injuries to the victim until she went inside to check on him at the request of the operator and when she did so she observed the victim conscious lying on the lounge covered in blood whilst the offender was sitting on the floor watching him.
Police arrived at the scene and observed that the offender appeared to be drug affected, and observed a baseball bat with blood on it outside of the courtyard near to the front door. They observed the victim on the lounge with severe facial injuries and bleeding. An ambulance followed shortly thereafter.
The victim, the offender and Ms Turner were all taken to Gosford Hospital. The victim suffered severe injuries as a result of being struck to the head and face by a baseball bat by the offender. The hospital recorded that in addition to multiple lacerations and a badly damaged index finger he presented with the following injuries:
1. multiple skull fractures from right occipital bone which extended to the temporal and parietal bones, left parietal bone extending to the occipital bone and the forum and magnum depressed right temporal bone fracture, right superior orbital fracture;
2. intracranial injuries, left posterior fossa extradural haemorrhage, left posterior fossa subdural haemorrhage tentorium cerebella subdural haemorrhage, multiple right temporal and occipital lobe subarachnoid haemorrhages and cerebral contusions, forum and magnum epidural haematoma extending to the level of C2; and
3. comminuted fractures to the spineous process of the seventh cervical vertebrae.
Due to the severity of the injuries he was intubated and ventilated and urgently transferred to the Neurological Unit at Royal North Shore Hospital for operative management. At that hospital CT imaging confirmed that the victim had extensive and comminuted skull base and facial fractures. Extensive bruising and swelling of the brain and a large posterior fossa subdural haemorrhage were identified. A C7 spineous process fracture as well as blood in the upper cervical spine were also identified. Three emergency surgeries were performed on the victim for the insertion of intracranial pressure monitors as well as surgery to remove a large portion of skull to reduce intracranial pressure. An MRI performed on 18 November 2019 confirming brain haemorrhages and diffuse axonal injury to the brain skin flap reconstruction was performed on his left index finger on 23 November 2019. His spinal injuries were managed in a surgical collar for six weeks.
The victim had severe and prolonged post-concussive symptomatology including amnesia, labile mood, sleep derangement, headaches, agitation and aggression. The victim was transferred to the Ryde Brain Injury Unit on 9 December 2019 and underwent skull reconstruction surgery on 16 January 2020. In April 2020 it was noted that he had persistent facial weakness for which he may require future surgery. Whilst resident at the Ryde Unit the victim's medical requirements were overseen by the Neurosurgery team at the Royal North Shore Hospital and the rehabilitation specialist at the unit. He received rehabilitation support from the following specialists:
1. occupational therapy;
2. speech pathology;
3. physiotherapy;
4. neuropsychology;
5. social work; and
6. dietician and recreational therapy.
In a video statement recorded at the unit on 11 December 2019 the victim indicated that he had no memory of the incident and the preceding days other than being hit in the head with a bat by the offender and walking to the ambulance.
The victim was discharged from Ryde Brain Injury Unit on 28 January 2020 with a comprehensive discharge plan for ongoing treatment and support including referrals to the Hunter Brain Injury Unit. On 7 May 2020 he was reviewed by a rehabilitation physician from that service who noted a range of ongoing issues including right seventh nerve palsy, sleep impairment, episodes of brief balance impairment, left index finger DIP joint deformity, anger/frustration control problems and post cranioplasty facial aesthetic changes. The forward plan made by the physicians included ongoing ophthalmological monitoring, ENT monitoring of the facial nerve and physiotherapy review of balance.
The offender had no injuries. Ms Turner suffered bruising to her arm which she believed was a result of being thrown across the room. As noted they are shown in Exhibit 2.
The offender was released into police custody by Gosford Hospital around midnight on the day of the incident. He then participated in an interview where he made admissions to hitting the victim several times with a baseball bat. He stated that he did this in defence of Ms Turner and himself. The offender was then charged with the current matter.
Those are the Agreed Facts signed by the parties.
At tab 4 of Exhibit A is a report from the rehabilitation centre at Ryde. The author is Dr Stewart Browne and it is dated 13 November 2020. He refers to the treating practitioner's report confirming the severe traumatic brain injury suffered in the assault. The injury severity markers include the following:
1. a Glasgow Coma Scale score of initially 15 at the scene, which is normal, declining to 11 whilst at Gosford Hospital;
2. a CT scan of the brain showing posterior fossa extradural and subdural haemorrhages associated with a comminuted fracture involving both occipital condyles, right temporal and skull fractures, subdural haemorrhage overlying the tentorium;
3. subarachnoid haemorrhage and right temporal contusions;
4. he required initial insertion of a left extra ventricular drain to monitor elevated intracranial pressures;
5. he progressed to bifrontal decompressive craniotomy and insertion of a right extra ventricular drain;
6. herniation reported on a repeat CT scan; and
7. a duration of post-traumatic amnesia of 27 days.
Other injuries suffered by the victim include the C7 fracture previously referred to, the left index finger fracture and a non-reactive right pupil.
On review in September 2020 the victim described symptoms consistent with post-traumatic seizures for which he was referred for neurological assessment. He has not yet returned to driving pending diagnosis of possible seizures. However around October he was given clearance to commence a labouring job. Dr Browne plans to review the victim in early 2021.
At tab 5 of Exhibit A is a victim impact statement authored by the victim dated 30 October 2020. He identifies 4 areas of impact:
1. nerves on his right side of his face do not work to the same ability as his left side;
2. his acrylic skull looks nothing like his old skull;
3. his left index finger is deformed; and
4. he was tested for PTE, namely post-traumatic epilepsy.
The offender's criminal record commences with a Children's Court entry of assault. As an adult there are a couple of drug offences, and a common assault. Destroy/damage property. In my view the offender's criminal record is such that it does not aggravate the offending but deprives him of any leniency which may otherwise flow from a finding of good character.
Before moving to the subjective case I will consider any aggravating or mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act'). I find that the offending was aggravated by the fact that the offender used a weapon, that is the baseball bat (s 21A(2)(c)). I further find the offending was aggravated by the fact that it was committed in the home of the victim (21A(2)(e)(b)). Although I consider the injury suffered by the victim to be substantial, I decline to find that as an aggravating factor as it may offend the De Simoni principle.
In terms of mitigating factors by the plea of guilt is a mitigating factor in accordance with s 21A(3)(k). I also accept the submission on behalf of the offender, consistent with the concession on behalf of the Crown, that the offender was provoked by the victim. In my view the degree of provocation diminished over time as the risk reduced by reason of the offender's partner leaving the premises and also as the victim became more severely injured. Nevertheless provocation is a mitigating factor which I find, consistent with s 21A(3)(c) of the CSP Act.
It was submitted on behalf of the offender that a further mitigating factor is that the offence is not part of a planned or organised criminal activity. I accept that submission and make that finding. It was directly in response to the conduct of the victim in first attacking the offender. There was an element of self-defence involved in the offending conduct and also the defence of others, in this case his partner.
It was also submitted on behalf of the offender that he is unlikely to reoffend and has good prospects of rehabilitation. Whilst his attempts at rehabilitation thus far are commendable, I find that his prospects are guarded, only because they have only just commenced. As I am unable to make a positive finding concerning rehabilitation, I decline to make a finding as to the likelihood of reoffending, but note that the sentencing assessment report author considered it to be a medium risk.
Having regard to the objective factors I consider the objective seriousness of the offending to fall just above the mid-range for offences of this type.
This is a matter to which a standard non-parole period attaches. Following Muldrock v The Queen [2001] HCA 39 the standard non-parole period is a matter to be taken into account as part of the determination of sentence. The maximum sentence that may be imposed in this case is 10 years' imprisonment. They are both guideposts to a sentencing judge.
The legislation specifies that the standard non-parole period applies to an offence found within the middle of the range of objective seriousness for such an offence, taking into account only objective factors without bringing to account matters that are unique to the offender or the class of offenders. Ultimately though the standard non-parole period is a factor to be taken into account in the sentencing exercise. Even though an offence might be found to be within the middle of the range of objective seriousness, it does not follow that the standard non-parole period will apply, nor that there should be some sort of percentage calculation performed where the offence is found at a lower level on the scale of seriousness The process of applying standard non-parole period is more intuitive. I decline to impose the standard non-parole period.
In considering the matter I have had regard to an extract in the Sentencing Bench Book, which reads as follows:
For some sentencing factors the line between objective or subjective cannot be sharply drawn, Stewart v The Queen [2012] NSWCCA 183 [38]. For example, the reference by the High Court to the nature of offending was held not to be restricted to the ingredients of the crime and is taken to mean the fundamental qualities of the offending, Williams v The Queen [2012] NSWCCA 172 [42]. Where provocation is established such that it is a mitigating factor under s 21A(3)(c) it is a fundamental quality of the offending which may reduce its objective seriousness, Williams v The Queen [42]. It may be that whether a factor such as provocation is categorised as an objective or subjective factor will have little practical impacts on the ultimate sentence, Williams [43]. Other factors which require consideration as to whether they should be included in the assessment of objective seriousness are the offender's intoxication, youth and duress. As to the latter factor it is expressly referred to in s 21A(3)(d). This topic will no doubt be the subject of more discussion by the appellate courts, whether a matter is characterised as an objective or subjective factor may have little practical impact on the ultimate sentence, Williams [43].
The reasons I give for declining to impose the standard non-parole period are as follows. I intend to find special circumstances justifying a departure from the statutorily presumed ratio of non-parole to parole periods. Also, in my opinion, the element of provocation reduces the moral culpability of the offender such that the imposition of the standard non-parole period would result in a sentence which is unduly severe.
Returning to the subjective case. It is informed by a sentencing assessment report, by a Ms Flanagan of 20 November 2020. She interviewed the offender and had contact with his mother. The offender told her that his actions towards the victim were the result of his reaction to fear and safety of himself and his partner, believing their lives were in danger of the victim's actions. He acknowledged being under the influence of an illicit drug and that may have affected his decision making at the time. He said that he was not fully aware, at the time, of the damage he had caused to the victim, and he regretted his actions. The offender acknowledged that in hindsight the victim was acting with inappropriate behaviours, and the drugs had adverse effects on the victim's thinking and actions. He confirms that he commenced a TAME program, an acronym for The Art of Managing Emotions. I recall his evidence that he commenced the program about two weeks ago and has benefited from that program. As mentioned, his risk of reoffending was assessed by Community Corrections as being medium.
Just returning briefly to mitigating factors. One matter which I overlooked was the question of remorse. I accept that the offender has accepted responsibility for his conduct and acknowledged the significant harm that has been caused to the victim, entitling him to a finding of remorse as a mitigating factor.
A report was prepared by Leah Flanagan, not the same Flanagan as wrote the sentencing assessment report, following an assessment of the offender on 20 November 2020. It was necessary for her to amend her report today to take away references to the fact that the offender's partner was pregnant at the time of the offending. It would appear from what was said in her earlier report, which is not in evidence, that she drew a number of inferences or made a number of assumptions about the offender's desire to protect the unborn child from the conduct of the victim. His early life experiences are referred to at the base of page 2 of the report. There appear to have been no early adverse medical complications or development trauma, although apparently his mother was a disciplinarian who would smack him on the bottom with a wooden spoon. He also had a difficult relationship with his sister, but he did not experience any abuse or neglect as a child. His childhood was generally unremarkable.
He dropped out of school in year 9 and commenced work at Cardiff Powder Coating, a position which his father secured for him. He was introduced to drugs at the age of 14, first smoking cannabis and later using cocaine and acid. At some point his children were removed by Child Protection Services. That caused the offender to admit himself to the Mater Hospital. As he said in evidence today he was in no state to have custody of his children, which he wanted to do so he initiated rehabilitation. Medication which stabilised his mood was prescribed and which he took for about 14 months.
He and a former partner have 2 children together, a son who is now 11 years of age and a daughter who is 9. He has a child to his current partner, who is just 2 months of age. The report refers to 2 significant life events, namely the removal of the children, and also a motor vehicle accident in which the offender was injured. He was asked about the subject offending and, consistent with the Agreed Facts and other evidence, he said that he warned the victim that he would strike him with a bat if he failed to get off Ms Turner.
It seems, according to the history given to this psychologist, the offender reported that after he hit Mr Patrick with the baseball bat he looked at him and he hit him again to get him off Ms Turner. He refers to feeling intense fear. He said that he continued hitting the offender with the baseball bat, telling him not to come near them. Apparently, according to the history, after first being struck with the bat the victim did not seem affected by the strike. He was unsure how many times he struck the victim. He said that he was swinging it hard, erratic, he was trying to strike him a minimum of ten times. He said "I thought that what I did was necessary to get out alive".
The offender described the victim as being emotional during the incident and explained that during this time he observed the victim smiling and later masturbating during the event. It is difficult to understand how the offender would have perceived the victim as a threat in those circumstances. I infer that was towards the end of the altercation. In cross-examination he agreed that once his partner was outside she was away from danger, and that they could have driven away in their car. The offender said that he saw a danger that was not there and that he went too far. He said that he could have left.
The psychologist administered a number of tests and diagnosed 2 conditions, one current at the time of the offending, namely other hallucinogen intoxication, that is the intoxication by taking of the drug. At the time of the assessment in November 2020, the psychologist was of the opinion that the offender also met the diagnostic criteria for the diagnosis of adjustment disorder. She was unsure as to when that condition may resolve, and said that it would require reassessment in due course.
The submissions for the offender were marked MFI 2. It was submitted that the objective seriousness of the offending was about mid-range. I have already made a finding that it was just above mid-range. I have referred already to most of the submissions advanced on behalf of the offender. Ultimately, the submission made for the offender was that the s 5 threshold was crossed, that is that no sentence other than imprisonment was appropriate. I accept that submission and make that finding. However, it was submitted that the sentence ought to be served by way of an Intensive Corrections Order. Whether or not that is available cannot be determined until the sentence is determined.
It was submitted that special circumstances ought to be found on the basis that this would be the first time in custody for the offender, and that he would benefit from a longer period on parole for the purpose of rehabilitation. It was submitted there ought to be a discount on sentence of 25% representing value of the guilty plea. I accept both of those submissions.
On behalf of the Crown it was submitted the offending fell above the mid-range of objective seriousness. The injuries can only be described as severe. That there was provocation by the victim and the offending met the s 5 threshold, justifying a sentence of fulltime imprisonment.
Prior to imposing a sentence it is necessary to consider the purposes for which a sentence may be imposed as provided for under s 3A of the Crimes (Sentencing Procedure) Act. One purpose which exists in every case is to ensure that the offender is adequately punished for the offending. That is that the sentence imposed reflects the criminality of the offending.
The second purpose is deterrence, both specific and general. I find that general deterrence is a major purpose for sentencing in this case. By reason of the offender's history of assaults and the current offending I also consider specific deterrence to arise.
The third purpose for sentencing is to protect the community from the offender.
The next is to promote the offender's rehabilitation. I consider that, in this case and most, to be of significance.
The next is to make the offender accountable for his actions, to denounce the conduct of the offender and to recognise the harm done to the victim. In this case very substantial harm was caused to the victim by reason of the offender's actions.
I intend to impose a sentence of imprisonment of 3 years with a non-parole period of 18 months representing a very favourable finding of special circumstances. This sentence also incorporates a discount of 25% for the offender's guilty plea. Given that the sentence relates to just one offence it is not possible to aggregate the sentence so as to impose an Intensive Corrections Order.
Mr Christiansen, you are convicted of recklessly causing grievous bodily harm in breach of s 35(2) of the Crimes Act 1900. In respect of that conviction you are sentenced to a non-parole period of 18 months commencing today, 1 December 2020, and expiring 31 May 2022. You are sentenced to a head sentence of 3 years, commencing today and expiring 30 November 2023.
Do you understand the sentence?
OFFENDER: Yes, I do, your Honour.
HIS HONOUR: Just take a seat please. I deliberately didn't call Correctives up immediately, because I thought you may want to speak to your family.
OFFENDER: Thank you so much, your Honour.
HIS HONOUR: So feel free to speak to your family. Can you just double check those dates, gentlemen. 18 months from today I think is 30 June 22?
STITZ: 30 May, your Honour.
HIS HONOUR: 31 May is it?
MACMILLAN: 31 May.
HIS HONOUR: Yes, so the non-parole period expires 31 May and the head sentence expires 30 November.
MACMILLAN: Yes, your Honour. Just one issue, your Honour, if I might.
During your judgment you noted that the matter was aggravated by being in the offender's home. It was actually in the offender's home but the victim was staying there at the time. So just to clarify that.
HIS HONOUR: Yes, thank you.
I revise my remarks by deleting victim's home and inserting offender's home where the victim was living at the time. Sir, I made an error in my calculation of the non-parole period, you will be released on 31 May 2022. But no doubt Mr Gibbons will be in touch with you. The Correctives gentlemen who are behind you will take you into custody.
[2]
NOTE:
A. These remarks on sentence were revised without access to the Court File.
I certify that the previous 92 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC.
J Bailey
Associate
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Decision last updated: 14 May 2021