The offender appeared at the Wagga Wagga Local Court on 19 September 2018 and pleaded guilty to one charge, namely that:
"(He) did on 5 January 2018 at Ashmont in the State of New South Wales, cause grievous bodily harm to Colin Jennings and was reckless as to causing actual bodily harm to Colin Jennings"
The plea of guilty was adhered to at the sentence hearing at the Wagga Wagga District Court today and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.
The maximum penalty for the offence to which the offender appears for sentence is 10 years imprisonment. Parliament has specified a standard non-parole period of 4 years imprisonment in respect of the offence. As the matter carries a standard non-parole period I acknowledge that I am engaged in a one-step instinctive process in which two of the principle guideposts are the maximum penalty and the standard non-parole period.
[2]
Facts
The facts are before the court by way of a set of agreed facts contained within the Crown tender bundle, which is exhibit A on sentence. The agreed facts are supplemented by two comprehensive medical reports from Dr Bolitho a neurologist as to the injuries and ongoing difficulties suffered by the victim. For the purpose of proceeding to sentence I find the following established beyond reasonable doubt.
The victim and the offender were unknown to each other at the time of the offending. On the evening of 5 January 2018 the offender was socialising with Michael Davis, Michael Luck and Troy Pearson at the Ashmont Hotel at Ashmont, a suburb of Wagga Wagga. The victim was having a few drinks with Kyle Sands and twin brothers Jake and Isaac Delarue at his house in Ashmont. Kyle and the twin brothers were intoxicated. The victim was the least affected by alcohol of the group having consumed about five rums.
At about 8.30 to 9.00pm the victim, Kyle and the twin brothers went to the Ashmont Hotel. It seems that the victim went into the hotel. Isaac Dearue was outside the hotel when he became involved in an argument with the offender. The facts recite that it is not completely clear but it seems that Isaac was the instigator of this incident. Michael Davis, one of the other patrons intervened and attempted to break up the incident. At this point it appears that Isaac Delarue punched Michael Davis and the offender retaliated by trying to hit Isaac. A melee quickly broke out in the car park involving the offender, the twins and other patrons of the hotel. A number of patrons attempted to break up the fight and a number of people sustained injuries in the process, including the offender.
The victim walked out of the hotel towards the melee. He tried to calm down the situation by yelling, "come on guys, break it up, cool down". The victim was not in any way aggressive either verbally or physically.
The offender walked towards the victim and punched him to the face with a closed right fist. The punch caused the victim to fall backwards and hit the back of his head on the concrete. The victim remained motionless and unconscious on the ground and does not recall the event.
The fighting continued around the victim while patrons of the hotel attempted to assist him. The victim, the offender and another patron of the hotel were taken to the local Base Hospital..
The victim presented at the hospital as confused, agitated, and amnesic to the events of the night and with a slightly reduced level of consciousness. The victim underwent a CT scan which revealed significant brain trauma. The following injuries were observed:
1. Complex base of skull fractures involving the occipital bone and faramen magnum;
2. Multiple paraenchymal haemorrhagic contusions to the brain - frontal lobe;
3. Acute subarachnoid haemorrhage at the inferomesial aspect of the frontal lobe;
4. Acute subdural bleeding paragalcine region;
5. Blood anterior to the brainstem and
6. Signs of raised intracranial pressure and cerebral swelling.
The victim was transferred to St. George Hospital where he remained an inpatient at the neurosurgical ward for close neurological monitoring for a period of six days. His injuries were described by treating doctors as "substantial and life threatening" and consistent with traumatic brain injury.
Further to the issue of the injuries sustained by the victim there is within exhibit "A" a report from Dr Samuel Bolitho a consultant physician and neurologist. Part of the report reads:
"Since this accident there have been significant changes in his cognitive performance and in the cognitive domains of emotional ability. He has also lost his sense of smell. Colin was with his girlfriend Kate today and Kate reported that Colin has unexplained emotional outbursts, at times verbally aggressive. He has no insight into this, indeed on a recent occasion because of one of these emotional outbursts he was assaulted by a friend again and Colin had no insight into the inappropriate tone of his voice and language. Colin reports that people think he is cranky and he feels anxious all the time. He is having difficulty controlling his emotions. There have been intermittent headaches without definitive migrainous features at this point in time. There has been a significant change in Colin's ability to work, previously he was one of the shearers being able to crutch 800 sheep per day. This is now 300. Previously he would have been able to shear 170 sheep per day now this is down to 100. He finds that when he works very hard he can get black dots in his visual fields and he has to stop and rest. Because of the contract nature of his work and demands he is no longer being offered as much work and because of the stigma associated with his brain injury this is also he believes affecting his ability to gain employment. This is causing considerable financial stress as he has just purchased a house.
…
Impression is of a traumatic brain injury with evidence of frontal lobe dysfunction….I have also instituted a trial of Mirtazapine and I have warned him about the side effects of…
Colin would benefit from assessment and management from the Brain Injury Unit at Albury.
…"
The Crown tender bundle, exhibit A on sentence contains and updated report from Dr Bolitho dated 19 October 2018. The report sets out the the victim is progressing well but there are still significant deficits associated with his head injury. The victim is having difficulty controlling his emotions and this is a new problem since the head injury. The loss of the sense of smell appears to be permanent. An MRI scan indicates changes in his brain that would correlate with his loss of smell. Further there are changes in the white matter consistent with axonal shear injury and would be consistent with his traumatic brain injury. There are some changes to the base of the frontal lobe bilaterally consistent with contusion or potentially sub-acute to chronic extra axial blood. Dr Bolitho has encouraged the victim to pursue physical therapies.
The offender suffered swelling to his face as a result of injuries sustained during the attack.
The offender was arrested on 7 January 2018, conveyed to the Wagga Wagga Police Station. He declined to participate in a record of interview.
[3]
Assessment
As the matter carries a standard non-parole period it will be necessary to make an assessment of the objective seriousness of the matter. It is clear from authorities such as Mitchell & Gallagher v R (2007) 177 A Crim R 94 and McCullough v R [2009] NSWCCA 94 that offences such as the one for which the offender appears for sentence are result offences. Generally, the more serious the harm sustained by the victim the more objectively serious the matter will be. The nature and circumstances of the infliction of the harm are also relevant to the assessment.
The matter before the court involves one punch. Mr Cooper in submissions put that the punch came about in the circumstances of a "pub brawl" and a melee. That is so, but the fact remains the violence meted out by the offender to the victim was entirely unprovoked in circumstances where the victim was merely attempting to calm down a volatile situation. The harm sustained by the victim is substantial and it is plain enough from Dr Bolitho's reports that there is permanent damage and there are substantial ongoing sequelae from the incident. Clearly, the consequences of the attack on the victim have been devastating and life changing.
Before submissions were taken I indicated a preliminary view that the matter was within the upper end of the mid-range of objective seriousness. Neither the Crown nor Mr Cooper submitted otherwise. In all the circumstances taking into account the unprovoked nature of the attack, the nature of the harm suffered by the victim and the nature of the injuries including the permanent and ongoing issues I am of the opinion that this matter is within the mid-range of seriousness but within the upper end of the mid-range.
[4]
Victim Impact Statement
The devastating and life-changing nature of the impact of the harm, injuries and ongoing issues suffered by the victim are eloquently set out in the victim impact statement. Much of the content of Dr Bolitho's report are echoed or amplified in that victim impact statement. The nature of the injuries and the ongoing nature of some of the harm suffered by the victim are taken into account in the assessment of the objective seriousness of the matter. Section 3A(g) of the Crimes (Sentencing Procedure) Act 1999 requires the court to take into account the harm done to the victim and the community. The answer to the rhetorical question posed at the end of the victim impact statement is "No" the victim did not deserve what happened to him. No member of the community deserves to be the victim of unprovoked violence as was the case in this matter.
[5]
Criminal History
The offender was born on 25 February 1996 and accordingly was almost 22 at the time of the offending and 23 at the time of sentence. In 2013 he was dealt with for what are essentially regulatory traffic matters and in 2014 for Excluded Person re-enter premises, Damage to Property, Fail to Comply with a Move On Direction and Stalk/Intimidate. Fines or bonds were imposed. In 2014 he was dealt with by way of non-conviction bond for Damage to Police Property in Queensland and in 2017 fined for Commit Public Nuisance in Queensland.
The matters are mostly quite minor in the nature of regulatory or minor street offence type matters. The offender is entitled to some limited degree of leniency because of his limited record.
Of concern however are the offences that occurred on 23 March 2019. They are referred to within Dr Furst's report, which is exhibit 1 on sentence. At tab 9 in Exhibit A (Crown Tender Bundle) are copies of the Court Attendance Notices and the police fact sheet in relation to the offences. The offender while on bail for the matter presently before the court became intoxicated, was excluded from licensed premises, sought to re-enter those premises in circumstances where he threatened security staff and he damaged a shop window of a vacant shop opposite those licensed premises. These matters go to the issues of prospects of rehabilitation and likelihood of re-offending and do not affect the findings made as to the use I make of the offender's criminal history.
[6]
Need for General Deterrence
This matter is yet another example of alcohol fuelled violence at licenced premises. The assault on the victim was completely unprovoked. There are real issues of general deterrence to be addressed in this matter. The victim was "entitled to have the legitimate expectation to be able to go to the hotel and socialise with friends without fear for his safety from random alcohol-fuelled violence" - see Daniels v R [2016] NSWCCA 35 at [48] per Fullerton J. In that case at first instance I with unfeigned respect endorsed the remarks of Bellew J in Mansour v R; Hughes v R [2013] NSWCCA 35 at [47], namely:
The victim had a legitimate expectation that he would be able to socialise with his friends at a nightclub without being subjected to acts of violence of the kind her Honour described. As her Honour pointed out, the attack was perpetrated upon the victim in total disregard of his entitlement to a sense of security and personal safety, and was one which left him with a number of physical and psychological injuries. Despite her Honour's assessment that those injuries fell at the lower end of the relevant scale, they were nevertheless significant, as was the offending overall.
The Court of Criminal Appeal also addressed the need for general deterrence in matters involving drunken violence in R v Loveridge [2014] NSWCCA 120, especially at [100]-[110]. The court in that matter was dealing with more serious criminality than the matter presently under consideration in that it involved a death. However, the matters of general principle are still applicable. At [102]-[104] the Court (Bathurst CJ, Johnson & Hulme JJ) said:
102 In the context of a case of assault occasioning actual bodily harm, in which the drunken offender punched the victim in the face without warning or reason when the victim was standing outside a city nightclub in 2010, Hoeben CJ at CL (McCallum and Schmidt JJ agreeing) said in Pattalis v R 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."
103 Other decisions of this Court have emphasised that violence on the streets, especially by young men in company and under the influence of alcohol and drugs, is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence: R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at 101 [29]. Even in the case of juvenile offenders (which the Respondent is not), this Court has emphasised that, in relation to crimes of violence committed in the streets by groups of young persons, general deterrence should be given substantial weight notwithstanding the youth of the offenders: AI v R [2011] NSWCCA 95 at [69]; MB v R [2013] NSWCCA 254 at [27].
104 This Court has emphasised that the principles of general deterrence and denunciation of crimes serve as a means of protection of the public: R v AEM [2002] NSWCCA 58 at [92].
[7]
Subjective case for the offender
Oral evidence was called from the offender and Mr Thomas Smith, the offender's grandfather. The offender was quite an impressive witness. He said he was now 23 but almost 22 at the time of offending. He was raised by his grandparents as his mother was moving around and on drugs. He has not talked to his father for many years.
The offender spoke of a good upbringing with his grandparents. He became visibly upset when speaking of the death of his grandmother, which occurred when he was 11 years of age. His grandfather continued to raise him. He went to the Ashmont Public School and is the first in his family to complete Year 12. He has been involved in aboriginal dance and he danced a kangaroo dance at football match.
I did not understand that there was a submission that the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 were enlivened. I observe that the evidence before me would not justify such a submission in any event.
He went on to say that he was 15 years of age when he started drinking. He used to drink on his own. Alcohol was not allowed in the home of his grandparents. He said in effect he preferred to drink alone as otherwise there is too much drama. A little later in his evidence he acknowledged that he had been under the influence of alcohol on the occasions he got into trouble with the law.
Mr Cooper then took the offender to the events of 23 March 2019. The offender said that he was stressed out about this matter and he ended up back in gaol. He said he apologised to the community and to his family.
The offender then said that when granted bail he went to a rehabilitation facility in Nowra. He acknowledged that he was meant to be there for 16 weeks but lasted only about 6 weeks. He said he was homesick, that he wishes he could take back his leaving the facility and that he should not have left the facility. Since then he has "had a couple of good yarns" to a cousin and he realises that he has to "give up the grog".
The offender said that upon release he wants to get a job and to play football.
He also gave evidence of having read the victim impact statement and acknowledged that he had had read to him the medical reports in relation to the victim. When asked how he felt about the situation he said that he really did apologise, he takes full responsibility for his actions, he apologised to his family and he said he really does apologise to everyone. He was not challenged on this aspect of his evidence. This evidence taken with the contents of the report of Dr Furst and the SAR, to which I will later refer, I am prepared to find on balance that the offender is remorseful.
Mr Thomas Smith the offender's grandfather gave evidence. Mr Smith also wrote a reference that is contained within exhibit 2. He confirmed that the offender came to live with him and his wife when the offender was about one year of age. Mr Smith said it was a good and happy relationship between the offender and his grandmother. The death of his grandmother affected the offender in many ways. No alcohol was or is allowed in the house. The offender still shows Mr Smith respect. Mr Smith is willing to assist the offender upon the offender's release.
Some other subjective material is available from the Sentence Assessment Report (SAR) dated 30 October 2018. At the time of the preparation of the report the offender was living with his grandfather and has a close and supportive relationship with him. The offender has limited employment experience.
While the offender told the author of the SAR that he regretted his involvement in the incident the author goes on to observe that the offender appeared to "attempt to minimise his actions by stating that he did not recall assaulting the victim, however pled guilty and is willing to take responsibility". Later in the report the author opined that the offender displayed a high level of victim empathy. The offender told the author of the report that he was heavily intoxicated at the time of the incident.
The offender is assessed as being a low/medium risk of re-offending. This assessment must of course be seen in light of the events of 23 March 2019.
The court is also favoured with a report from Dr Richard Furst, Forensic Psychiatrist dated 19 April 2019. Dr Furst sets out (p 2) that there were no indications of the offender having suffered from a childhood psychiatric disorder or an autistic spectrum disorder. He does not appear to have an intellectual disability.
The report goes on to say that the offender commenced using alcohol at 15 years of age and his drinking increased in 2017 to approximately 10 to 15 beers per day. He consumed 4 to 5 schooner of beer on the day of the offence. The offender told Dr Furst that he felt bad about the injuries he inflicted on the victim and that what happened to the victim was really awful. He also told Dr Furst that "I really do apologise, it plays on my head every day. The stress of court and the charges". At p. 4 Dr Furst says that the offender now regrets his actions and has acknowledged the wrongfulness of his actions. This is the material to which I referred earlier when dealing with the issue of remorse.
The offender spent three months bail refused during which time he witnessed a suicide.
The report goes on to say that the offender has participated in two sessions of drug and alcohol counselling and also went to a rehabilitation facility where he completed six weeks of a 16 week programme. The report also notes P 2 under heading demographic details) that since the assessment the offender has been incarcerated on other matters. While the report indicates that the offender is motivated to participate in a more structured drug and alcohol rehabilitation programme in the future there is no indication of the offender doing anything in that regard.
At p. 4 of the report Dr Furst notes by way of footnote that the "other offences" were Damage to Property and Excluded Person Remain in Vicinity of Licensed Premises that took place in the early hours of the morning of 23 March 2019 at the Que Bar in Wagga Wagga. The irresistible inference is that the offender was heavily intoxicated.
Dr Furst opines that there were no indications of psychosis and the offender meets the criteria for the diagnosis of Alcohol Use Disorder. The doctor goes on to observe that alcohol was clearly a factor in the offence of 5 January 2018 at the Ashmont Hotel and in unrelated offences before and after that date. Dr Furst also opines that it is likely that the offender's judgment was affected by his being struck shortly before he struck the victim.
Dr Furst also maintains that the offender has now some insight into his alcohol problem. That of course must be seen in the light of the events of 23 March 2019 that brought him before the court.
The doctor recommends drug and alcohol counselling is indicated such as the EQUIPS modules with a focus on relapse prevention. This is essentially the offender's first time in custody and I am of the opinion that there is a need for a longer period of supervision to ensure that the offender receives the appropriate treatment and counselling for alcohol abuse. The sentence to be imposed will be substantial and the offender will also need some assistance in re-integration into the community. As I indicated at the sentence hearing the re-integration into the community will involve dealing with the stresses and stressors of life without resorting to alcohol.
Given the partial completion of the rehabilitation programme but moreover the events of 23 March 2019 while the offender was intoxicated I am unable to find on balance that there are good prospects of rehabilitation. Likewise I am unable to find on balance that he is unlikely to re-offend.
[8]
Submissions
Neither party made lengthy submissions probably because of the matters that I indicated about which I had formed preliminary views at the conclusion of the evidence and before submissions. Mr Cooper accepted that a substantial sentence of imprisonment would be imposed but also emphasised the appropriateness of a finding of special circumstances. The reasons put forward were essentially an adoption of the matters to which I have referred earlier in these remarks when dealing with that issue. I also understood Mr Cooper to submit that the court should refrain from imposing a "crushing sentence on the offender" because of his age. As I observed at the sentence hearing it is regrettable that a young man will spend the better part of his early 20's, i.e. the prime of his life in custody. Submissions were made as to the overall circumstances of the punch and in particular that although the victim was blameless the situation involved a melee and a "pub brawl". I have already dealt with that issue.
The Crown Prosecutor in his brief submissions did not seek to cavil with my earlier indication that the matter was within the upper end of the mid-range of seriousness. The submission was also made that the offender did not have an unblemished record.
[9]
General Remarks
The Crown helpfully provided a schedule of cases, which is marked MFI 1 on sentence and will remain with the papers. Copies of those decisions were also provided. The decisions in the order in which they appear in the schedule are Stevens v R [2017] NSWCCA 216, Wick v R [2017] NSWCCA 244 and Daniels v R [2016] NSWCCA 35. I note that that last decision also summarises a number of cases.
The schedule and the cases have some utility although every case must be determined on its own unique facts and circumstances. The violence in Stevens was slightly more than in the matter presently under consideration but the grievous bodily harm in the present matter is more serious as it involves inter alia ongoing and permanent consequences to the victim. The offender was on bail for a charge of Assault Occasioning Actual Bodily Harm. The starting point before the 10% discount allowed at first instance in Stevens was obviously 5 years imprisonment. Wick involved an attack with a glass but the sentencing judge assessed the injuries to be at the lower end of scale of possible grievous bodily harm. The injuries in the present matter are more serious. The offender in Daniels was on parole for similar offending but the injuries were less serious than the matter presently under consideration. I have however, read and considered each of those cases.
I will need to give proper effect to the provisions of ss 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:
1. to ensure that the offender is adequately punished for the offence,
2. to prevent crime by deterring the offender and other persons from committing similar offences,
3. to protect the community from the offender,
4. to promote the rehabilitation of the offender,
5. to make the offender accountable for his or her actions,
6. to denounce the conduct of the offender, and
7. to recognise the harm done to the victim of the crime and the community.
Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the nature of the offending, the maximum penalties provided, the need for general deterrence there must be a sentence of imprisonment imposed. No contrary submission was made.
The offender had been in custody bail refused and granted bail. He was taken back into custody on 23 March 2019. After the sentence hearing and while preparing these reasons I realised that I had overlooked asking the parties for submissions as to the appropriate starting date of the sentence. The matter was mentioned briefly after the luncheon adjournment. The parties agree that given the sentence of a fixed term of one month imposed by the Local Court in respect of the matters of 23 March 2019 the appropriate starting date is between 10 January 2019 and 9 February 2019. Given the exchange between bench and bar table I propose to commence the sentence on 24 January 2019.
I remind all concerned that there is one charge on which the court is passing sentence and the maximum penalty prescribed for that offence is ten years imprisonment. In this matter I am of the opinion that the appropriate starting point is a sentence of 6 years imprisonment from which is to be deducted the 25% for the utilitarian value of the plea making a total sentence of 4 years and 6 months.
[10]
Orders
In respect of the offence to which the offender pleaded guilty, namely that he did on 5 January 2018 at Ashmont in the State of New South Wales cause grievous bodily harm to Colin Jennings and was reckless as to casuing actual bodily harm to Colin Jennings he is convicted.
Consequent upon that conviction the offender is sentenced to a non-parole period of 3 years to date from 24 January 2019 and which will expire on 23 January 2021. Thereafter there will be a balance of term on parole of 1 year and 6 months which will date from 24 January 2021 and which will expire on 23 July 2022.
The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release. Although it is entirely a matter for the parole authorities I recommend that any period on parole be subject to supervision and that it also be conditioned that the offender obey all reasonable directions as to ongoing treatment and counselling for alcohol abuse.
The non-parole period is 66.6% of the total sentence which indicates a finding of special circumstances the reasons for which have been enunciated within these reasons.
[11]
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Decision last updated: 08 May 2019