The prisoner Alexander Edward Kelso appears for sentence in relation to an offence of causing grievous bodily harm with intent to cause grievous bodily harm, committed on 4 December 2017 at Scotland Island in the State of New South Wales. The offence carries a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years imprisonment. The victim was a fellow inhabitant of the Island.
The prisoner was committed for trial on 12 June 2018. The trial was listed to start on 29 April 2019. A plea of guilty was entered on 30 April 2019. The matter came before me late last year, but was unable to proceed because of illness of Counsel for the accused. The matter then proceeded on Friday, 13 March 2020 and was adjourned for sentencing on Friday, 17 April 2020. The determination of the matter was delayed by my hospitalisation and recovery, as well as the Easter break. The matter was to resume today for sentence. Yesterday afternoon my chambers were sent additional evidence of a medical character that should have and could have been tendered on the last occasion. The parties had ample opportunity to bring that material to my attention beforehand. I have read that further medical evidence and taken it into account.
Between Friday 13 March 2020 and now the world changed considerably because of the COVID-19 pandemic. Whereas on Friday 13 March the courtroom was full of people, the accused, his family and supporters, the victim, the various legal representatives, other interested bystanders and others waiting for other proceedings to commence, the proceedings of the Court after 23 March 2020 have been conducted in what are called "virtual court rooms", with usually no Corrective Services officers on hand and very few litigants and/or legal representatives physically in court. In the context of these recent developments the defence has provided further written or written submissions in the form of a 'Supplementary Submission' particularly addressing the issue of the current public health events to which I have just made reference. I have had regard to those submissions.
The discount for the utilitarian value of the plea of guilty is to be considered in the context of the "guideline judgement" of R v Thomson and Houlton [2000] NSWCCA 309. Having regard to the timing of the plea, noting the submissions about this matter from the parties, I propose to accord the prisoner a discount of 10% upon the otherwise appropriate penalty for the utilitarian value of that plea of guilty.
The following findings arise from the evidence, noting the relevant submissions of the parties.
The prisoner was born in April 1980. At the time of the offending he was 37 years of age, the victim was 57 years of age. Both victim and prisoner at the time of the offence resided on Scotland Island which is in Pittwater, opposite Church Point. Access to the Island can only be obtained by boat. The prisoner ran a boating business, which included providing ferry services to and from the Island and was an experienced mariner.
He had lived on the Island with his wife and children since 2004, although his family had a connection with Scotland Island for a number of years before. The prisoner returned to Scotland Island in 2004 to take over his father's water taxi business and his eldest child was born that year. The victim had lived on the island for a shorter time from about 2011 or 2012. The victim was a very litigious person. It would appear that he had disputes with a number of people on the Island including the prisoner. He had commenced various proceedings in the Supreme Court and District Court against the prisoner and others. At the time of the assault the victim was in the course of pursuing proceedings against the prisoner in the District Court which were ultimately unsuccessful.
The prisoner purchased the "taxi licence" from his father in 2012 for $225,000. He was responsible for taxiing or ferrying many of the residents from Scotland Island to the mainland. At the time of the offence he lived on the Island with his wife and three children. The prisoner first encountered the victim in 2012 when one of the victim's dogs bit him on the ankle. It would appear that the victim's dogs caused problems for other people on the island. The victim made allegations against the prisoner in 2012 which were not prosecuted by police.
I accept that the victim was responsible for a number of meritless claims against the prisoner and others and that this created an "emotional" toll upon the prisoner, increasing his anxiety leading to an increase in his consumption of alcohol. The prisoner wanted to leave the island in 2015 but could not for financial reasons. He ultimately sold the 'taxi licence' in 2019 for $125,000. Both the litigation and the subsequent selling of his business in unfavourable circumstances have caused the prisoner considerable financial distress and loss, the impact of which is still felt by the prisoner and his family.
Part of the material provided to this court is a judgment of the Supreme Court of New South Wales delivered in August 2019 relating to the victim (Palmer v Mohareb [2019] NSW SC 975, per Fagan J). These were proceedings brought by another person from Scotland Island sued by the victim in defamation, settled by an apology, subsequent to which the victim instituted multiple proceedings against Mr Palmer in the District Court, Supreme Court and Court of Appeal, the history which is set out at [4] of the judgment. His Honour noted that all the matters instituted by the victim "lacked reasonable prospects of success". All his claims, interlocutory or otherwise, had been dismissed. He noted that the victim had conducted the proceedings, particularly at first instance, with "unshakeable fixation upon perceived wrongs, unresponsiveness to reasoned discussion and temperamental volatility". His Honour noted that the victim's presentation had on a number of occasions made it "very difficult for the District Court to maintain progress and direction through hearings while giving (the victim) a fair hearing". He concluded that the victim's fruitless litigation had been a significant burden upon the courts, with the greatest burden falling upon Mr Palmer.
I note his Honour's observations at [7]. His Honour said in comments about the matter generally, which to my mind are relevant here:
"Litigation takes its toll on the lives of private individuals. It is wearing enough for commercial people, with financial interests at stake, but at least they may view it as a cost of doing business. Relentless, meritless, personal claims against a defendant by a member of his or her local community constitute a gross invasion of private life."
His Honour went on to go through in great detail aspects of the matter at hand and the conduct by the victim of litigation against Mr Palmer which ultimately led to the conclusion that the victim was a vexatious litigant and that the gravity of the vexatious conduct necessitated an order prohibiting the victim from instituting any fresh proceedings New South Wales against any person. He went on to say in the context of his earlier findings of facts:
"I am satisfied that his tendency to mount unsustainable proceedings and to abuse court processes in pursuit of a perceived wrongdoer is general. There is no basis in the evidence for concluding that (the victim's) unacceptable litigiousness is only a product of his conflict with Mr Palmer and that it would not be repeated in relation to some other person with whom he might get into conflict" [152].
In the judgment, in this context, his Honour noted the range of other proceedings that were then not finalised involving other defendants at [153], including two proceedings involving this offender. His Honour concluded that as there was insufficient information about the course of those cases to justify an order staying them. But, in the absence of any stay under the Vexatious Proceedings Act 2008(NSW), those cases would have to continue with control being exercised over any "abuses of process or groundless applications" in accordance with the Uniform Civil Procedure Rules (at [154]). In an updated chronology of civil litigation involving the victim and principally this offender I am advised that the victim has appealed to the Court of Appeal and that hearing was heard on 5 March 2020 and the Court of Appeal reserved its decision. The victim also, I am further advised in the updated chronology, has appealed the decision of the District Court of 20 December 2019 dismissing a motion for the judge hearing certain proceedings outstanding to recuse himself from continuing to hear any of the plaintiff's proceedings.
This same conduct towards this prisoner is reflected in a number of judgments at first instance and an appeal, largely in respect of groundless interlocutory applications (eg. Mohareb v Kelso and Booth [2016] NSWDC 208; Mohareb v Kelso [2018] NSWCA 164; Mohareb v Kelso (No. 3) [2018] NSWCA 250; Mohareb v Kelso (No. 4) [2018] NSWCA 292; Mohareb v Kelso [2017] NSWCA 98).
The prisoner at the time of the offending had no criminal convictions. I accept that he was a person of good character at that time, not only because of the absence of convictions but because of his history of industry and his performance of his family obligations in a positive fashion. There is no doubt that he was well respected within the Scotland Island community, because he provided an essential service to it and also because of his good character. I will come back to the relationship between the victim and the prisoner later as it provides a context for the current offending.
There is an 'Agreed Statement of Facts' which is silent on some important matters, including precisely what happened between the prisoner and the victim and the location of relevant events. In the absence of evidence, or an assertion within the facts, I cannot draw inferences beyond reasonable doubt adverse to the prisoner in respect of some aspects of the offending behaviour of some importance. In setting out the facts I have had regard to the 'agreed facts' as well as the evidence of the prisoner, both in affidavit form and in the witness box. I have no reason to doubt that the prisoner is a truthful witness and accept his evidence in relation to a number of matters contextual to the offending or directly related to the offending.
On the evening in question, sometime around about 9 o'clock, the prisoner, who had been in court in Sydney earlier that day in relation to proceedings brought by the victim but which were adjourned to the following day, left his home to go down to his boat to set it up for business the next day. Bearing in mind he was required to return to court the following day in respect of the proceedings before the District Court. These particular proceedings were ultimately dismissed. I accept that the delay in the proceedings from 4 December 2017 was occasioned by the victim over the objections of the prisoner, who was losing money by being away from work, on top of incurring further legal expense not adequately covered by any costs order. Earlier that evening the prisoner drank a quantity of wine, both white and red, and some mixed drinks and was intoxicated. He went down to the boat wearing a tracksuit, a beanie, known as a 'watch' or 'mariner's' beanie, gloves and had in his possession a knife. He was carrying an aluminium baseball bat that was wrapped with masking tape. He was accompanied by his dog. I have seen the beanie and having regard to the prisoner's evidence on this matter as well as the evidence of Roderick Smith, a retired Lt Commander of the Royal Australian Navy, who commenced active service in 1963. I am satisfied that the beanie or a "watch cap" or "mariner's beanie", otherwise described as a "balaclava", was a legitimate item of clothing to be wearing having regard to the weather conditions at the time. Weather records produced to the court and the evidence of the prisoner reflect that it was considerably cooler than would normally be expected in early December and that on the water would be cooler again. The knife was described as a "marine safety knife" which the prisoner said he always carried. In my view, again it was legitimately in his possession. I am satisfied that the prisoner did not arm himself either with the knife, or the mariner's beanie, or balaclava, for the purposes of committing any crime. He was, however, angry with the victim and he decided after he had set up the boat for business the next day to go to speak to the victim. He was considerably frustrated by all that had gone before over a number of years. Clearly matters had come to a head given the series of unsuccessful proceedings commenced by the victim incurring expense and considerable anxiety to the prisoner beforehand.
The prisoner is not and was not a violent man, except on this occasion. He was carrying a weapon, a baseball bat covered with masking tape, but I am not satisfied he 'planned' to use it against the victim. Apart from its usual purpose to protect his dog, he asserts he carried it "just in case", having regard to his previous confrontations with the victim and what can fairly be described, by reference to the conduct of litigation and false allegations made against the prisoner in the past. He admits going to the victim's house and up the stairs leading to the "rear deck" of the premises. Access to the victim's house can only be had through the rear glass sliding door.
At 9.30pm the victim was lying on his bed, 4 metres from the rear sliding door with his two dogs. The prisoner entered the rear deck of the victim's property. The victim got up from where he was lying. The facts then state that the offender,
"struck the complainant with the baseball bat several times to both his head and body during the assault".
No specific location for that assault is identified. The facts then go on to say:
"there was a confrontation between the offender and the victim… (they) grappled and wrestled with one another. The physical altercation ended when the offender fell and was held down by the victim. The victim threw the bat over the veranda (sic)".
There is no suggestion the victim was affected by alcohol. Given the size of the prisoner, he is at least as big as the victim, and having regard to the injuries suffered by the victim obviously, when he was struck with the bat, it was a prodigious feat of strength and courage to disarm the prisoner and overpower him. The prisoner's intoxication no doubt contributed to this. The victim called out for help saying that the prisoner was, "trying to kill me". The prisoner told those that came to assist the victim that he was "walking his dog" prior to the incident, which he was. The prisoner needed first-aid as did obviously the victim.
The prisoner was taken to Mona Vale Hospital, being charged by police on discharge from hospital the next day. He complained of severe pain in his ribs and chest, difficulties breathing and standing, had an abrasion to the rear right side of his face head and scalp, a laceration to the back of his head and lower left hand side and scratches and grazes on the right of his face. These injuries were minor. He was described by one of the rescuing neighbours as appearing to lapse in and out of consciousness. His injuries are consistent with the victim endeavouring to defend himself.
The victim was admitted to Royal North Shore Hospital and required surgery for an open reduction and internal fixation of bilateral mandible fractures. He required the application of 'arch bars' and was intubated in ICU for a few days. He was discharged after 10 days in hospital and the 'arch bars' were removed on 8 February 2018. He had a large bruise to the right side of the head and the left chest wall, a bruise to his left ear and other bruising as well as fracture of his lower teeth. This was the state of the evidence when I understood the evidence was completed on 13 March 2020, however, the supplementary material provided on 17 April 2020 sets out further information. A treating Facial Surgeon, Dr Vickers, in a report dated 1 April 2019 in that material, performed post-operative examinations in May 2018 and February 2019. He noted the initial surgeries required repair of the jaw fractures with titanium plates and screws and wiring to re-establish 'occlusion'. He reports on surgery that occurred in February 2019 for removal of a plate. The victim had continuing problems with occlusion. A report of 30 July 2018 from an Oral and Maxillofacial Surgeon, Dr Bowler, reflects upon the treatment received on first admission to hospital, subsequent treatment at Royal North Shore Hospital in April 2018 to remove a fractured tooth and continuing problems with occlusion and right-sided inferior dental nerve paraesthesia. He noted mobility in the right mandibular fracture and no evidence of full bony union on the right side, although his examination precedes the removal of the plate to which I made earlier reference. He noted some damage to the root of one of the teeth from screws used to retain the original arch bars. There is attached to that a radiologist's report which reflects the opinion that the positioning and alignment of surgical screws and plates appeared "satisfactory" and that "no post-operative complication noted". I appreciate that is to be seen in the context of further clinical examination and complaints of the effects of the assault.
Another report dated 19 December 2018 from another Oral and Maxillofacial Surgeon, Dr Zoud, reflects his clinical examination and the results of previous examinations. This report predates the report of Dr Vickers, and the contains of a deal of detail relating to the clinical examination he conducted and advice given to the patient regarding further surgery that may be required or alternatively other treatment such as orthodontic treatment that may assist occlusion.
These are significant injuries. They are not the most serious injuries contemplated by the concept of "grievous bodily harm". Certainly not at a low level of injury but within the range of injury that can be identified as just below the middle range of seriousness of injury contemplated by the charge pleaded (paraphrasing the language of s 54A(2) Crimes (Sentencing Procedure) Act 1999, hereinafter referred to as "the Act"). I will come back to undertaking the task required of me under that section later.
I have had regard to the "Victim Impact Statement" which is very detailed. There is objection taken to matters claimed to be outside the ambit of the agreed facts or at odds with the objective evidence. There is no need to rule upon the specific objections. I deal with the VIS, in the absence of sworn evidence from the victim, in accordance with the requirements of the legislation (see s 28 of the Act) and decisions such as R v Tuala [2015] NSWCCA 8. From the evidence and relevant parts of the VIS, I accept that there was substantial pain and discomfort caused to the victim over a period of time from the infliction of the injury consistent with the character of the injury and some problems continue arising from those injuries to the jaw. Noting what has been put about the weight to be given to the victim impact statement, in the context of the victim's self-interest to portray the prisoner in the worst possible light given his history of false allegations against him in the past, I could not conclude that the significant injury suffered by the victim constitutes an additional aggravating factor pursuant to s 21A(2)(g) of the Act. I appreciate that the victim is properly aggrieved by the conduct of the prisoner. There is no suggestion that he deserved to be attacked in the manner in which he was. Whilst I cannot conclude that the prisoner was relevantly "provoked", I could not conclude that in the proper context the assault was "unprovoked". One finds this tension commonly in sentencing when one concludes that a relevant offence was not "planned" offending as an aggravating factor, but is not "unplanned" as a mitigating factor pursuant to the relevant subsections of S 21A of the Act. I use the word "provoked" in the context of the understanding that provocation as a partial defence to murder as "extreme provocation" contemplates conduct towards an accused that is long standing and not necessarily immediate to the offending conduct causing death (s 23(4) Crimes Act 1900, amended in 2014). As it did before the 2014 amendments.
I cannot conclude that there was present with the prisoner a motive to silence the victim to prevent further vexatious litigation. Not that the Crown directly submitted that that was such a motive. No financial gain has been proven as a motive.
A relevant "aggravating factor" pursuant to s 21A(2)(eb) of the Act is that the assault occurred in the "home" of the victim. I am not satisfied that the assault occurred inside the dwelling house itself. The facts are silent on this issue, which I gather was the subject of dispute before the plea was entered and the agreed facts were settled. The available circumstantial evidence from the agreed facts and the photographic evidence produced to the court does not establish beyond reasonable doubt that the assault occurred inside the dwelling. Bloodstains and the like inside the building can be consistent with transference, as much as primary disposition. I note the prisoner's denial of attacking the victim inside the building. There can be no doubt however that the assault occurring as it did on the property of the victim on a rear deck that enabled access to the building is relevantly an assault committed "in the home" of the victim and is relevantly an aggravating factor pursuant to the sub paragraph. In the decision of the Court of Criminal Appeal of R v Lulham ((2016) 230 ACrimR 287 at [5]; per Bathurst CJ) this was made clear. The difference between being actually inside the house as opposed to being within the curtilage reflects a difference in the degree of "aggravation."
I am not satisfied beyond reasonable doubt that the offence was planned, notwithstanding the fact the prisoner was armed with the bat covered in masking tape. The bat had an 'innocent' purpose, the protection of the prisoner's dog. Clearly, whilst intoxicated, the desire of the prisoner to confront the victim about matters either related to the civil litigation, or their general relationship, was ill-advised and inappropriate. It was inappropriate in all the circumstances to go on to the property of the victim at all. But I acknowledge that Scotland Island is a small community and that it would be commonplace for local people to walk onto the properties of others for legitimate purposes and in normal circumstances it was not necessarily unusual for this to occur. However, these observations merely reflect the wisdom of hindsight which was, regrettably for the victim and the prisoner, not available to him at the time. The use of the beanie and the possession of the knife were not associated with the execution of the crime.
In addition to the evidence of the prisoner, which I will come back to in relation to certain subjective matters, as I earlier indicated there was a body of evidence that supported aspects of the prisoner's account of what happened that night, or is relevant to the assessment of his credibility as a witness in addition to the assessment of his character. Particularly the evidence of Mr Smith who was a very convincing witness and a man of obvious integrity and experience. I should point out in relation to the available evidence that the finding of the balaclava in a skip bin after the relevant events I cannot ascribe to any action by the prisoner. He was obviously restrained and held within the property of the victim for a period of time and had no opportunity in my view to discard that item. I thus could not conclude adverse to the prisoner that he endeavoured to dispose of it. It was suggested to the prisoner by the prosecutor that he asked one of the rescuing neighbours to discard it. He denied this. There is no evidence to support that allegation.
The evidence of the prisoner's wife confirms the considerable pressure that the family was under as a result of the litigation pursued relentlessly and unjustifiably by the victim over a number of years. This stress was both emotional and financial and contributed to the prisoner abusing alcohol more than would normally be the case and in my view acting uncharacteristically as he did on the night without thought to possible consequences. Although I cannot conclude that he foresaw that he would cause as serious bodily harm to the victim as was occasioned. That is until he struck the blows and even then given his intoxication he clearly had not thought through his conduct, or thought through the inappropriateness of attending upon the victim's property. The major injury to the jaw could well have been caused by one heavy blow.
The wife of the prisoner described him as not a violent person and gave eloquent testimony concerning his expressions of remorse to her for his misconduct as he did in his evidence. His remorse is not just for the harm that he has caused to the victim, but for the harm he has caused to his family and that may arise out of the sentencing proceedings. Already, as a result of the conduct of the victim towards the prisoner in the litigation to which I have referred, unsustainable financial loss has occurred. The wife alleged assault against the victim committed in April 2019, in or near the John Maddison Tower, which was proven at the Local Court in February this year. Mr Mohareb pushed her against a wall causing bruising when she came to that building to get access to subpoenaed documents. The victim has appealed the finding of guilt. She explained in her affidavit that before the assault of the victim here, she and her husband had moved houses on Scotland Island "further into the bush" so they "could not be seen by the victim". She had concerns for the safety of her 2 younger children.
The family now live a marginal financial existence. The hardship to his family of any incarceration of itself does not give rise to exceptional circumstances that warrant an order other than full time custody. But is a relevant matter to be taken into account. He is a devoted, loyal husband and a devoted father to his three daughters. His daughters are greatly affected by the various court proceedings and although I need not go into the detail of it that impact has had physical ramifications for one of the children. The wife and the prisoner both gave evidence of significant changes in the conduct of the prisoner since his arrest in relation to this matter. Because of his changed working circumstances arising from his sale of the water taxi business he has more time with his family although there has been a substantial reduction in income.
Although it took a substantial period of time after the events for the prisoner to change his drinking habits, he has lost a considerable amount of weight, being now more physically fit than he was at the time of the offending. He has overcome the drinking problem that he had at the time of the offending and. He has demonstrated his capacity for rehabilitation by voluntarily undertaking attendance at Alcoholics Anonymous meetings on a regular basis. The prisoner spoke of the steps of responsibility required to negotiate that program. He understands that when incarcerated he will have difficulty having access to the same programs and there will be of course the wrench of separation from his daughters now aged 16, 13 and 11.
So far as his attendance upon Alcoholics Anonymous is concerned, I had evidence from a sponsor who has been 'sober' for 12 years. He gave evidence that the prisoner has spoken openly about his difficulties with alcohol and identified the various steps that he had been able to attain up until the present time, including taking responsibility for his conduct when affected by alcohol. He said that whilst he was in custody he may be able to visit him, or may be able to contact him by telephone from time to time but will not have the opportunity of as much contact as is currently available in the community. Such visits I would imagine would be impossible during the current period of the active phase of the COVID-19 pandemic, the length of which is not known. I will refer to this issue later.
The Sentence Assessment Report of the Community Corrections Service confirms many of the matters to which I have referred. As well as confirming that there is no prior history of antisocial behaviour. It reiterates the history given by the prisoner of alcohol abuse in the period of time leading up to the offending, in fact for some years beforehand, the uncharacteristic nature of the offending and the assessment that the prisoner was at 'low' risk of reoffending. It noted the prisoner's expressions of remorse although it records an equivocal account of relevant events. It reports what emerges from the psychologist's report, made available to the Service. It reported that the prisoner is using his involvement in the offence as a motivation to learn how to deal with confronting situations more effectively. The Report assesses the prisoner as suitable to undertake 'community service work' if that is a realistic component of any order of the Court. The Report also confirms the prisoner's attendance upon Alcoholics Anonymous on a regular basis and the developed understanding through his drug and alcohol counsellor of his offending behaviour.
A number of the witnesses who gave evidence also provided affidavits (in the case of the prisoner and his wife), written references or statements. I have written confirmation of the prisoner's attendance upon Mona Vale Community Drug and Alcohol Service in the period of time between 5 June 2019 and 4 March 2020. This reflects the positive steps taken of his own motion.
In addition to the witnesses who gave oral evidence I have a letter from Tim Byrne, a commercial mariner from Scotland Island, who has known the prisoner 14 years and who has had both social and professional contact with him. He trained the prisoner in the operation of a particular vessel and he observed that the prisoner is "likeable, reliable and honest". As an experienced mariner he would place the trust of himself and his family in the prisoner's hands when navigating craft. He had never witnessed him to be aggressive or violent. Mr Smith in his written reference described him as "disarmingly honest and plainspoken" and very responsible. He noted the prisoner's regret not only for what he had done to the victim, but for the distress he had caused neighbours and the difficulties for 'emergency services'. Their attendance upon the Island was not without difficulty. He made observations regarding the changes to the prisoner's life since his offending. Notwithstanding the prisoner's conduct, he still regards him as a person of good character. He also points out that the conviction of the prisoner will have ramifications for his future in the maritime industry. He attests to the prisoner's industry. There is also produced a medical certificate relating to the prisoner's deterioration in mental health in mid-2019 and a referral of him for treatment for stress and strategies to avoid alcohol misuse.
A lengthy psychological report has been prepared by Jason Borkowski, a forensic psychologist, dated November 2019. He expressed the opinion that the prisoner at the time of the current offence was suffering from an 'Adjustment Disorder, with anxiety and depressed 'mood' and 'Alcohol Disorder'. He opines that these conditions bear a relationship with his offending. I note in relation to the factual assumptions upon which the report is partly based that the history and other background matters reported by the psychologist accord with the evidence in the sentence proceedings from the prisoner and other sources, including in part the agreed facts. It my view there was no 'gilding of the lily 'on the part of the prisoner in setting out relevant details of his background. Assuming as I must, the professional qualification of the psychologist and his clinical and other professional skills, I note that the prisoner when he gave evidence was not challenged in relation to matters of which the prisoner or his family could give evidence relied upon in the report as relevant to his findings. This is not a case one often sees of psychologists' reports which have no independent support in respect of history, or which contain hearsay representations which the prosecution does not have the opportunity to test or challenge. The psychologist's analysis is to my mind reasonable and gives professional voice to issues relevant to the offending that expressed in lay terms may not have the same power. For example, lawyers or laypeople talk in terms of "provocation". Whilst it could not be said that the assault of the victim was relevantly "provoked", as I said earlier, the reasons for the prisoner acting so uncharacteristically are succinctly identified in psychological terms by the psychologist.
The prisoner has had some disadvantages in his upbringing which have had an impact upon his psychological make up and his current presentation, with fear of rejection and abandonment and sensitivity to derogation and humiliation underlying significant anxieties which have been prominent throughout his adolescence and adulthood. Despite this, the psychologist observes that Mr Kelso has upheld "pro social values", both in his family and vocational responsibilities. Apart from problematic patterns of alcohol consumption the prisoner has otherwise lived a "stable, mature and responsible lifestyle".
The civil litigation to which I referred, had placed a substantial strain upon him. He described the onset of symptoms that are consistent with an 'Adjustment Disorder' in which anxiety and depressed moods are prominent. These symptoms were exacerbated by the financial strain of the prisoner defending himself in court. The proceedings had implications relating to his standing in his local community and with his family. In the words of the psychologist, "activating… fears of rejection humiliation and derogation". His alcohol consumption increased as a "maladaptive coping strategy".
The psychologist was of the opinion that overwhelmed by the situation, a heightened emotional state, affective instability associated with these presenting psychological conditions, in combination with intoxication, made his capacity for rational decision-making and problem-solving at the time of the offence was compromised. Having regard to various dynamic factors identified as relevant to assessing violent and drug and alcohol related offences, the prisoner has few of them and in any event has a number of "protective factors" that "portend positive rehabilitation prospects". Not only has he pro social support networks, as evidenced by the support in court, he is empathetic and does understand the perspective of others. He does not have an inclination towards general impulsivity.
The psychologist wrote that both a change of environment, and a change in other personal circumstances provide a basis for confidence that he can overcome his 'Substance Use Disorder' and not resort to violence in the future. Therapies such as those under a 'Cognitive Behavioural Treatment Plan' would be effective in managing anxiety and depressive symptoms. It would also assist him to develop coping strategies and readily identify negative thinking patterns.
A number of community-based strategies are identified, many of which the prisoner has addressed or undertaken. Regular employment and stabilising his family's financial position would assist considerably. But that situation is fluid. One would think it is positively negative in outlook, given the current COVID-19 pandemic and the well-known related negative impact upon employment and the economy. The difficulties revealed in the evidence concerning his financial position arising out of the litigation into which he has been drawn, the costs of selling his business at a reduced price, the fallout from his charge in relation to the current matter and moving from Scotland Island to Mona Vale, reflected a deterioration in the family's financial position with him as the main breadwinner. That situation must deteriorate through no fault of his in the current economic climate.
The detailed supplementary submissions of the prisoner set out specific detail about the COVID-19 pandemic and it's the worldwide effect as well is its current effect upon Australia. It noted the risk for people in places of detention as reported by the World Health Organisation in a paper published in March 2020 entitled "Preparedness Prevention and Control of COVID-19 in prisons and other places of detention: Interim Guidance".
With regard to the relevance of the current pandemic and its implications for individual offenders, there are only a few judgments from 'Superior Courts' about these matters as they are relevant to sentencing. Obviously the full impacts of the pandemic upon the criminal justice system were only starting to be felt in early-mid March of this year. Such sentencing exercises that have occurred since then have not been the subject of appellate review at this point. Nor will they be in the most part for some months to come. There are some cases reported of appeals considering sentences passed before the pandemic, where superior courts have acknowledged the justifiable concern within the prison population of the risk of contamination by the coronavirus in a closed environment with limited access to social distancing and other precautionary measures available in the wider community. That justifiable concern held by people about to go into custody or already in custody is noted. It is relevant in this sentencing exercise. To exemplify the point of risks in custody, last week, I had two co-accused, appearing via audio-visual link from custody at the same time, in relation to the same crime. When they appeared before me the two men were placed in the same room sitting side-by-side in a small enclosed audio-visual facility. No attention whatsoever had been given by the authorities to 'social distancing'. It does not bode well for the handling of other people in custody in the future. Although, in fairness to Corrective Service personnel, they are confronted with challenges which are not known in the wider community and by reason of geography and architecture, as well as the size the prison population, are difficult to overcome. Perhaps in particular cases this will be impossible to overcome. I have seen policy documents prepared in recent weeks by the Department of Corrective Services. Whether they can achieve their objectives, admirable as they are, is unknown.
Another relevant factor in this sentencing exercise as a result of COVID-19 risks is the reality, at least in the short term, that whilst in custody, the prisoner will have limited, perhaps total disconnection, from his support network. As I would understand it personal visits are greatly curtailed if not entirely prohibited. It is submitted that social visits to Correctional Centres are currently banned, by reference to a Justice Health website accessed on 15 April 2020. It is submitted that there will be at least for a period of time social isolation for the prisoner, the impact of which will be exacerbated by the matters reflected in the psychological report. I am drawn to the need for consideration of each individual case by regard to its particular circumstances which I do. It is submitted that hardships in custody, risks to health in custody and concern for risks to the community a relevant matters to take into account. In the process of endeavouring to contain the spread of any infection within correctional facilities there will need to be increased 'lockdowns' or 'lock-ins' of inmates, although the extent of this and how it would directly impact upon this particular prisoner is not known to the court. I appreciate that the consequence of custodial orders currently being served or to be imposed may require isolation of inmates causing additional hardship making the conditions of imprisonment more onerous.
In the context of the current circumstances if a term of imprisonment was to be imposed the impact of COVID-19 upon this prisoner, given the current state of information, would be relevant to a consideration of a finding of "special circumstances", having regard to consideration of the prisoners health, safety in custody and the prisoner serving a term of imprisonment for the first time. I have taken into account the potential for hardship to the prisoner in a range of ways if in custody but ultimately the current COVID-19 situation is not decisive in the disposal of the matter.
The psychologist identifies issues for the prisoner whilst in custody including his vulnerability given his lack of experience that his age in custody, lack of access to treatment programs widely available in the community and his association with others of less pro social attitude.
On the basis of the psychologist's opinions, founded in facts otherwise established, I concluded that in this matter I should diminish the weight to be given to "general deterrence", for the reasons summarised by McLennan CJ at CL in DPP(Cth) v De La Rosa [2010] NSWCCA 194, at [177]-[178]. The conditions of the prisoner not being permanent, does not require greater weight to be given to "specific deterrence". The uncharacteristic conduct and the "pro-social" attitudes of the prisoner do not demand substantial weight to be given to specific deterrence. This event and its consequences for him has been a "salutary" experience.
Noting, as I obviously have, the various matters raised in the submissions of the parties, there are some additional matters to be identified for resolution. In respect of the objective seriousness of the offending I note the number of blows evidenced in the agreed facts, the character of the injuries suffered by the victim and as an additional aggravating factor pursuant to s 21A(2)(e) of the Act, the use of a "weapon". Of course, without the weapon the serious jaw injury I am sure would not have been occasioned. There is nothing in the evidence to suggest the prisoner is an expert or adept fighter or with his bare hands is capable of causing really serious bodily injury. The aggravation of using a weapon contributed to the character of the injury. The weapon was not a sophisticated weapon and was not a weapon created for the purposes of the assault given the lack of planning. I accept it was an implement that was regularly used to ward off other dogs (the masking or gaffer tape designed to soften any blow that might be used in that situation)
The Crown in its submissions particularly adverted to matters to which I have earlier referred; the character of the weapon and the injuries, the degree of planning and the aggravation of the offence committed at the "home" of the victim. One matter noted briefly in the submissions of both parties is the length of time of the assault. The precise length of time is not known to the court but it would seem that the assault was not over a prolonged period of time, the significant injury to the jaw could have been caused by one blow and the fact that the victim got on top of the prisoner and subdued him reflects to my mind the fact that the actual violence by the prisoner towards the victim was for a relatively short period of time. This enabled the victim, despite his injuries, to secure the prisoner and call for help. The facts suggest that intervention by neighbours occurred very shortly after the victim's call for assistance which brought the altercation to an end. By reference to the particular matters identified by the Crown with which the court generally agrees, except for the submissions about premeditation and planning, the Crown submitted that the offence fell 'just below' the middle range of objective seriousness for the purposes of s 54A(2) of the Act. I appreciate that Spigelman CJ, in the 2004 decision of Way, overturned on other bases by the High Court of Australia in Muldrock v The Queen in 2011, observed that the middle range of objective seriousness "was not necessarily a narrow band". It is certainly not a line through the middle of the range of objective seriousness.
In the context of the requirements of s 54A(2) of the Act, I conclude that this offending is below the middle range of objective seriousness, not marginally below, but certainly not to be categorised as offending of low seriousness of its type. Whilst the injuries are serious, and there is proven an intent to cause grievous bodily harm, I am not satisfied beyond reasonable doubt that the accused intended the particular serious bodily harm that was caused and there is the absence of proven premeditation or planning. There is to be considered as well the context of the offending, bearing in mind this is not a gratuitous attack upon a stranger.
Proven overwhelmingly as mitigating factors by the prisoner pursuant to s 21A(3) of the Act, he was of prior good character, has good prospects of rehabilitation and is highly unlikely to reoffend. I accept that he is relevantly remorseful. Although he belatedly publicly took full responsibility for his conduct, I accept that before he took legal responsibility for his conduct he had privately expressed deep remorse for his behaviour. There was a late plea in the context of what was to be a dispute as to key facts. In that regard I note a matter that I raised in the course of the prisoner's evidence concerning appropriate acknowledgement to the victim at an earlier time of the apology expressed in court. Considering the matter with the wisdom of hindsight, putting aside my suggestion that the prisoner could have written a letter of apology delivered via the officer in charge which had not been considered by the prisoner's legal representatives, in the circumstances of the character of the relationship between the prisoner and the victim before the relevant events and having regard to the character of the victims conduct towards the prisoner before relevant events, was not a practical option for the prisoner.
In respect to the exchange during the proceedings about a direct apology by the prisoner to the victim, at that time I had not fully digested the unchallenged evidence of the prisoner in his affidavit where he swore:
"I am committed to becoming a better person. I also feel the need to make amends for my past behaviours. I do this with my family by showing them every day that I am committed to this through my actions…. I feel strongly that I wish to make amends with (the victim), I understand that he would not want to be in the same room as me. In relation to the offence, I know that I should have not gone there, if I had not been there this would never have happened. I am ashamed of my actions on that night, I think about it every day and sometimes I can't sleep at night thinking about it. The guilt of my actions of that night will stay with me and never leave me. I am truly sorry for what I did."
This is been a difficult sentencing exercise balancing and synthesizing the multitude of matters that are required to be taken into account. At the forefront of course is the maximum penalty providing a yardstick for the seriousness of an offence of this character. Then there is the requirement to consider the relevant aggravating and mitigating factors, concerned with the assessment of the objective gravity of the offending, and the relevant mitigating factors that operate upon what would otherwise be the appropriate sentence if one was only having regard to the objective facts of the offence. I am mindful of the requirement under Part 4 1A of the Act that ordinarily for an offence with a standard non-parole period a non-parole period must be fixed, hence the interplay between S 54A and S 54B of the Act. There must be appropriate circumstances for considering a penalty that does not require the fixing of a non-parole period. I am also mindful of the fact that if the S.5 'threshold' has been passed, as it has here, whilst full-time imprisonment should be considered as the last resort, nothing in this section directs a sentencing court which has decided no alternative to imprisonment is viable, to then exclude from consideration any non-custodial means by which the sentence must be served (Parente v R [2017] NSWCCA 284 at [113]. On the other hand the court is not required to fashion an order to avoid fixing a term of full-time imprisonment when it is appropriate, even if the sentence of imprisonment is to be less than two years all things taken into account. I have concluded in this matter that I should impose upon the prisoner a term of imprisonment to be served by way of Intensive Correction Order. That term of imprisonment reflects the 10% discount that I earlier referred to for the utilitarian benefit of the plea of guilty. I propose that the prisoner be required as a condition of that order to perform a substantial period of community service.
I bear in mind there is a degree of inherent leniency in the order that I propose. I appreciate that the Crown submits that I should impose a sentence of imprisonment of 'full time custody'. In fact that was initially my view before full reflection upon all the evidence. But I am also mindful of the purpose of an Intensive Correction Order as was explained by the Attorney General in his second reading speech when legislation was introduced to permit this alternative to full-time imprisonment. Whilst punishment is an integral part of the purposes of sentencing pursuant to S 3A of the Act, as is denunciation of the prisoner's conduct, recognition of the harm done to the victim and making the prisoner accountable, revenge or vengeance is not an integral part of sentencing in a civilised society and certainly not part of the sentencing requirements cast upon judicial officers. Our sentencing laws and practices are more nuanced than that.
Thus the orders I make in relation to this matter are as follows:
Can you stand up please, Mr Kelso?
I note the terms of s 66 of the Crimes (Sentencing Procedure) Act 1999. You are convicted. There being no other appropriate penalty, you are sentenced to a term of imprisonment for a period of one year and ten months. I have rounded up that term of imprisonment reflecting the discount for the plea of guilty.
Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed upon you is to be served by way of an Intensive Correction Order. That sentence will commence today on 17 April 2020. You must report to the Community Corrections office at St Leonards as soon as practicable but no later than seven days from today, 17 April 2020.
The standard conditions of the order shall apply. You must not commit to any offence, you must submit to supervision by a Community Corrections officer. The following additional condition applies; you will be required to perform 400 hours of community service work for. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning imposing more stringent conditions or may include revocation of this order which will require you to serve the balance of the order in custody. If the order is revoked, you may be required to serve all or some of the period of your sentence in fulltime custody. Finally, you are now directed to attend the Court registry where a copy of this order will be explained and given to you. You can take a seat, thanks very much.
Mr Kelso, the order that I make, of course, is subject to any rights of appeal you and the Crown have. It is the order that I have made on my analysis of all the material available to me and of course, I am a mere District Court judge who is amenable to review by superior courts as are all persons. Judges are I should add.
Mr Crown, any matters from you?
TERRACINI: Thank you.
HIS HONOUR: Any matters from you, Mr Tuckey?
TUCKEY: No, your Honour.
HIS HONOUR: Right, thank you very much. Yes, I thank the victim for being present. I thank the solicitor for the defence being present. I certainly wish the victim every success in the rehabilitation of his injuries. I trust that notwithstanding the seriousness that they can ultimately be resolved. Thank you very much. You are disconnected, those appearing by audio visual link, thank you.
AUDIO VISUAL LINK CONCLUDED
[2]
Amendments
26 May 2020 - Sentence imposed not included in original version.
29 May 2020 - Small grammatical error corrected in last paragraph
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Decision last updated: 29 May 2020