Solicitors:
Mr M Ward (for the offender)
Ms J Walshe (for the Director of Public Prosecutions)
File Number(s): 2016/00156578
[2]
Introduction
On the evening of 21 May 2016 Jesse Rose, the offender now before the Court, and Jay Pearson were at the Central Hotel, Shellharbour City. Both had been drinking and drinking to excess. There is some dispute about the exact amount both men had drunk, but it is clear from viewing the CCTV recording exhibited and played in court today, that both men were well intoxicated. Mr Pearson was behaving badly. He was attempting to, and succeeded in, inciting and aggravating another patron at the hotel. His behaviour was unacceptable. It led to him being dealt with for an offence of affray for which he received a sentence of community service.
At some stage Mr Rose chose to join his friend Pearson in this aggressive behaviour, but he was a secondary player. Nevertheless, both the patron, who was the victim of Pearson's attention, Pearson, and this offender were asked to leave by security staff at the hotel. Had they done so, nothing more would've occurred. The patron, who was the victim of Pearson's attentions, did in fact leave. Neither Pearson nor Rose left when asked.
Rather than leave, Rose became argumentative with the manager and Mr Seris, a security guard. At all times Rose was holding a schooner glass in his right hand. Rose was told repeatedly that he needed to leave. It is quite clear that there was something he wanted to sort out. It is not clear what but it may have had something to do with the gambling machine he'd been playing. Regardless, what is important is, when asked he did not leave.
Mr Seris kept on telling him and Pearson that they had to leave the hotel. Rose then dropped his shoulder and leant towards Mr Seris. Mr Seris felt spit on his face. The agreed facts state it was the offender who spat on his face. Seris then swung a punch which hit Rose in the jaw. Seris said he did so to keep this offender away from him. So much can be seen in the CCTV footage.
As Seris threw the punch his legs collapsed under him. Information in the Victim Impact Statement indicates that as a consequence he suffered severe injury to his patellae. Mr Seris, if I can put it politely, was carrying too much weight. It may well be the force of throwing the punch and the twisting motion involved which caused that injury. Rose, is not responsible for that injury, it is not a matter before this Court. What is relevant is that Mr Seris fell to the ground and was unable to get up.
It is at this point, while Mr Seris was on the ground, that Rose threw the schooner glass he was holding in his right hand. He threw it towards Seris. This can be seen in the CCTV recording.
Although only moments after the punch, and responsive I suspect to that punch, it was not an immediate blocking of a punch. The action in throwing the glass, and the plea eventually entered, indicated, that absent his intoxication, this offender realised at least the possibility, of actual bodily harm being caused to Mr Seris. So much is obvious from what I saw on the CCTV. Anyone would realise that throwing a schooner glass with considerable force at someone who was on the ground created that risk.
Eventually, after legal advice, Mr Rose accepted responsibility for that offence. The gravamen, the seriousness of this offence, is his response of throwing the glass at a person who was at his feet on the floor. He may not have realised the extent of Mr Seris's injury, I am quite sure he did not. I suspect that no one there realised how badly injured Mr Seris had been, but the action of throwing a glass at the security guard, who, in his own words, was "just doing his job," has put Rose in the dock facing a considerable period in custody.
The maximum penalty for this offence is seven years imprisonment. Parliament, on behalf of the community, have indicated a offence which falls in the middle of the range of objective seriousness, taking into account only the objective factors affecting relative seriousness, should carry a minimum non parole period of three years. This standard non parole period and the maximum penalty are things that the Courts must pay careful attention to. Both provide sentencing measures. They invite a comparison between this case and other cases but I don't start by looking at the maximum or the standard non parole period and make proportional deductions from them: Markarian v The Queen (2005) 228 CLR 357.
I am required to give content to the standard non parole period. In doing so, I must assess the objective seriousness without reference to matters personal to Rose and wholly by reference to the nature of offending: Muldrock v The Queen (2011) 244 CLR 120. Here, his intoxication and the offender's background, including his mental illness, are relevant factors on sentence. Given what fell from the High Court, I do not take those matters into account when I give content to the standard non parole period. However, as the Court in Muldrock made clear, neither can I engage in a staged approach to sentencing. Accordingly, my finding where the offence objectively falls within some notional range does not compel any one result. That assessment must be synthesised along with all relevant matters. Frankly not every matter relevant to a sentence can be fitted into categories, human behaviour is too varied for that. Given the nature of the offence, given the sort of matters that are regularly dealt with by this Court, I could not find that this offence falls in the middle of the range of objective seriousness. It falls below that range, but it is still a serious offence.
That finding provides one reason for variation from the standard non-parole period. Another, reason is the plea of guilty. Another is the subjective case for the offender, including a finding I make that there will be special circumstances. That here allow for a greater period on parole than that fixed as a statutory norm.
Mr Seris, as a consequence of the action, suffered a wound to the right hand side of his head. It is shown in the photographs exhibited before me. The wound required internal stitches as well as five staples. They are shown in the photographs. He also suffered a depressed skull fracture of the temporal bone, but there was, thankfully, no cerebral contusion.
In his Victim Impact Statement Mr Seris was, understandably, focussed on the significant injury he suffered to both patellae and the consequences to his life that arose from those injuries, but as the facts make clear, the injuries to his legs are not the subject of the charge.
The Victim Impact Statement must be received and considered by the Court. A Victim Impact Statement in the case of a primary victim must relate to "any personal harm suffered by the victim as a direct result of the offence": s26, Crimes (Sentencing Procedure) Act. The Victim Impact Statement exhibited before me, however, refers in significant detail to the consequences of the patella injuries. While I must and will take into account the undoubted harm that this offence caused, I need to be careful, with great respect, to Mr Seris, as these other matters, while they would also have impacted upon him, were not the direct consequence of this offence. I must have regard to, in particular, the direct injury to the head, the fracture to the skull, the wounding, the bleeding, the time it took him to recover, the large scar and that he still suffers migraines. This attack had an impact upon him. It left him angry, upset and confused.
The Victim Impact Statement does indicate the serious consequences that victims of such violence suffer, particularly those who are employed in hotels to, in effect, keep the peace; matters to which I will refer again.
The guilty plea came late. The matter was listed for trial. Prior to a special call over of all matters in the Wollongong District Court trial list an offer was made to the Director of Public Prosecutions to plead guilty to the current charge. That offer was eventually accepted the day after this matter had been listed for trial. It was not accepted either prior to or at the special call over because understandably and as is provided for in the Criminal Procedure Act, the victim needed to be consulted. There was also, it would appear, some negotiations about the facts.
I sentence on the basis of the facts before me. It is clear that the resolution of this matter, while it took some time, had a utilitarian benefit. I am prepared to allow 12.5% to reflect the utilitarian value of the guilty plea. When I do the maths the resulting reduction in sentence may be slightly higher than that, but I note sentencing is not meant to be a strictly mathematical exercise.
The subjective case for Rose was presented by way of a letter from the offender to the Court. He says he is sorry for the incident that occurred, he says he feels great remorse. He tells me, "I am a changed man". In the letter he speaks of his good relationship and of his work. He says he is moving along. He says, "I am a good partner and a great dad and wish to strive to be a good bloke and role model." His sentiments and his wishes for the future and his work and relationship history are all supported by other material before the Court.
It is clear from all that material that he has had many problems in his life. It is also clear from all the material before me that he has matured considerably. I suspect, in fact I think I can say I know, that that maturity has been significantly contributed to by the hard work of his now partner, Ms Smith, whose letter is before me. The offender has accepted the role of father to her children, he has found work, he is providing for his new family, he has, as his work supervisor says, set himself on the road to rehabilitation and recovery.
It is sad and tragic both for Mr Seris and Mr Rose that, as Mr Clarke who appears for Mr Rose, indicates this "one moment of madness" has led him to this position. That moment of madness was contributed to significantly by his gross intoxication by drugs and alcohol. While I cannot take that fact into account in mitigation so far as assessment of objective seriousness is concerned, I can have regard to it when I come to consider structure of the sentence and what has been done by Rose to come to grips with the problems he's had. I also have regard to the causal relation between the intoxication and his background, which is carefully set out in the report provided from a respected psychiatrist, Dr Richard Furst, part of exhibit 1.
It is late on a Friday, but I will have to make some reference to Dr Furst's report. It sets out Mr Rose's background in some detail. It indicates how he has served the community as a Rugby League footballer. It also indicates that since he was young he has been receiving treatment for depression and anxiety. He has also, since 2013, been diagnosed with a bipolar disorder. He is prone to insomnia and anxiety. His underlying medical conditions require medication.
It is not unusual, as Dr Furst indicates, that people in such a situation may self-medicate with intoxicants such as alcohol and other drugs. It is clear that on the night in question he had been well affected by both illicit drugs and alcohol. While the offender's estimate as to how much he drank seems excessive, it is clear from viewing the recording and the history given that he was well affected by alcohol at the time, meaning his memory for the incident was poor and his judgment was clearly affected. It also appears he did not take his lithium medication on the day of the offence.
The offending, as Dr Furst notes, is indicative of someone who is heavily intoxicated; to repeat myself, that helps me understand why it occurred and what can be done in the future. Dr Furst gives me some important information about bipolar disorders. He also notes that Mr Rose is, with medication and assistance, capable of reasonable psychosocial functioning and he has demonstrated that in recent months. I do not ignore Dr Furst's conclusion that there is a relatively strong correlation between bipolar disorder, alcohol abuse and substance abuse in general. This is not the first time I have read such an expert opinion.
On the positive side, Dr Furst opines, and I accept, that Rose does not appear to have a pattern of entrenched addiction. He proposes a treatment plan. Dr Furst states that Mr Rose is a good candidate for close monitoring in the community, meaning an Intensive Corrections Order would be a reasonable alternative to a custodial sentence. From a purely medical point of view and the opinion of those in the community who stress that rehabilitation is the most important aspect of sentencing, that recommendation is an excellent one. Community protection is the primary focus of sentencing. If it can be achieved by rehabilitation of the offender that must be encouraged but sentencing is not just about an offender.
Dr Furst also recommends, should Mr Rose go into custody, as in my view, is inevitable in this case, ongoing treatment with lithium is appropriate. Rose may also require antidepressant medication such as Avanza. He would benefit from referral to a clinical psychologist working for the Department of Corrective Services and from group based drug and alcohol counselling programs such as EQUIPS. Access to work and education would also be of assistance.
Dr Furst also notes a matter I should and do take into account: Rose has a serious mental illness and the custodial environment is likely to be more onerous on him than the theoretical average inmate. Dr Furst is experienced enough to realise that Rose is not alone in being a person with mental health problems in the custodial system.
As I said, the subjective case demonstrates that Mr Rose is well on his way to rehabilitation. He has obtained work. He has housing. He has accepted responsibilities as a family man. He has demonstrated that he has the capacity to rehabilitate himself with assistance and yet I am faced with the unenviable task of having to sentence him to a term of imprisonment.
Time in custody may have some retributive value, it may signal to the community that such behaviour is not tolerated. All the studies indicate however that harsher and longer sentences do not appear to deter people who do not think about the consequences of their actions: see "Does Imprisonment Deter? A Review of the Evidence" Sentencing Advisory Council, Victoria, 2011.
Nonetheless Courts are required, as a matter of law, to impose sentences in matters such as this that allow for a significant element of what is known as general deterrence: see Loveridge [2014] NSWCCA 120. Sentences must also do what they can to deter an individual and send a specific message to people such as Rose. They must, if possible, foster an offender's rehabilitation and, if gaoled, their eventual reintegration to the community.
The community should be under no illusions; gaols can be terrible places. No one should underestimate the lived experience of gaols. Gaols, also, because they isolate offenders from family, from work, can break down pro social bonds. They can encourage anti-social bonds with other inmates and paradoxically expose prisoners to violence.
Gaol is a last resort, but crimes of violence in hotels and clubs cause considerable harm, not just to their immediate victims and the victim's friends and family. I am sure that Rose is now sorry for the incident. He says he feels great remorse. I am sure that remorse is partly for himself and the consequences he has placed on himself and his family, but there is also some feeling for Mr Seris.
That said, offences such this break down the bonds that bind us as a community. Shellharbour has a reputation for community events, so too does Wollongong. People should be able to go out at night and have a drink or go to work in hotels without ending up in an operating theatre.
Courts may play a role in the maintenance of our civil society, primarily by signalling the severity of sentences imposed, the community's disapproval and abhorrence for acts which hurt others and disturb the civil peace. Courts must also, by the sentences they impose, recognise the harm done to victims of crime, particularly violent crime, and the harm those crimes cause the community. The Courts must attempt, so far as possible, to vindicate the dignity of innocent victims of drunken violence. It needs to be stated clearly, as has been stated time and time again by Courts in this State, that when someone fuelled by alcohol acts aggressively to an innocent victim the Courts will impose severe sentences. That requirement is imposed upon me by the highest court in this State.
The sentence must be appropriate to the objective facts of what occurred and the harm done is one important measure of that. A sentence is not imposed in a vacuum. CCTV did not prevent this crime, heavy sentences previously imposed did not prevent this crime, but there is only so much a Court can do. The community justifiably demands that when cases such as this cause significant injury to those who are working in hotels, such as Mr Seris, that only a custodial sentence of some severity can be imposed. That means that despite the many benefits that could accrue from an Intensive Corrections Order a sentence of fulltime custody must be imposed.
There are many reasons here to moderate the severity of the sentence. I hope that in this judgment I have done justice to the matters raised in the submissions of Mr Clarke and Madam Crown, but there must be time in custody.
Had it not been for the plea of guilty, I would have imposed a sentence of two years and six months. The sentence will be one of two years and two months. I make a finding of special circumstances
[3]
Orders
There will be a non parole period one year and two months, it will date from 6 April 2018, today, and expire on 5 June 2019.There will be a parole period of one year from that date.
I will have a copy of Dr Furst's report sent with the warrant. So far as the CCTV exhibit is concerned, I propose to allow access to that. There seems to be no reason in the interests of justice why the community shouldn't see what was done and form their own view why the sentence was imposed. The matter on the s 166 Criminal Procedure Act 1987 certificate I deal with pursuant to s 10A Crimes (Sentencing Procedure) Act 1999 as it is inexpedient to impose any other penalty.
[4]
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Decision last updated: 21 September 2018