R v Mesinez

Facts for sentence

1. In January 2023 Harry Froling, a professional basketball player came to Wollongong to play the local team. After the game, he went out to enjoy the nightlife Wollongong has to offer. During the course of the evening he drank, by any measure, too much. The facts before me indicate that he drank enough to be, in the ordinary course of events, refused service. In fact, he was escorted from a local nightclub premises, but he re-entered and continued to drink.
2. On the dance floor, he interacted with a number of young women. They did not appreciate his actions or his presence. At about 2.25am, Mr Froling left the nightclub. He went up to where a group of people were standing, including some of the girls he had been interacting with on the dance floor. He was told to go away, but he continued to stand close to the women.
3. Nathan Mesinez was sitting nearby. His girlfriend was one of the women engaged with Mr Froling. Mesinez got up and spoke to Froling telling him to "fuck off and go away". His girlfriend, who is short and slight, pushed Mr Froling to the chest. Mr Froling is, as one would expect of a professional basketball player, tall and well built.
4. There was no overt hostility or violence shown by Mr Froling, who appeared to take the push in good humour. He did not respond and stepped away. Mesinez then put himself between the young woman and Mr Froling. Up until that point there was nothing untoward in what occurred.
5. The two men exchanged words. Exactly what was said is not available, as there is no audio on street CCTV. Mr Froling said, "What are you going to do about it, hit me?" Mesinez then, with a clenched left fist, struck Mr Froling to the point of his chin. The force of the blow is apparent from the CCTV recoding tendered There was no indication that Mr Froling posed any physical threat, but he was much taller than Mesinez and he had drunk to excess. Mesinez also says he had drunk a significant amount of alcohol, much more than he normally would.
6. As a result of the blow, Froling fell backwards hitting his head on the ground. He lay there unresponsive. Mesinez walked away with a group of women. He did however turn and must have seen Mr Froling lying on the ground. One woman from the group stayed to render assistance as did two passing off-duty nurses.
7. Police were called. They, at first, believed that Mr Froling may have fallen. He was disoriented, had difficulty communicating and was obviously intoxicated. He was taken by ambulance to Wollongong Hospital.
8. Froling was unable to provide a history. No superficial injuries were noted, although he did cough up some blood-stained sputum. A CT brain scan was ordered to exclude a bleed on his brain. He refused to consent to the CT scan. He left the hospital about 8am. He returned with his team to Brisbane that morning by plane. By the time he arrived in Brisbane, he was clearly unwell. He went to Brisbane Hospital. He agreed to treatment. He was found to have to have sustained the following brain injuries:

• A large right sided extra dural haematoma.
• A smaller subdural haematoma.
• What is called medically, a 'sulcal crowding to the vertex' in the right 'cerebral hemisphere'. This is as understand it - swelling such that the ridges of the brain are crowded together under the skull.
• A five millimetre 'midline shift' to the left, which is a movement of the brain within the brain casing, causing headaches.
• A skull fracture.

1. He underwent surgical craniotomy to evacuate the bleed. A drain was inserted, and bone was replaced with low profile plates and screws. The scalp flap that resulted was closed with staples. He spent ten days in hospital, first in ICU, and then in the neurosurgery ward. He had a further brain scan at six weeks.
2. Mr Froling has no recollection of the incident. The facts record that since the incident he has: "A constant ringing in his ears and headaches that come and go. He suffers nausea and constantly hears a ticking sound that sounds like it is coming from behind his eye. Due to this, he has difficulty focusing, or even watching television without getting dizzy … he will not be able play contact sport again."
3. Police investigated the matter and reviewed the CCTV footage. On 24 January they went to Mesinez's home. He voluntarily went to the police station where he was arrested. He told police: "He was trying to harass the girls … Obviously I didn't fucking mean to hurt him that much, like, I hit him once. Obviously, he must have been intoxicated for him to fall like that. It's one of those things."

Victim Impact Statement

1. I received, and as Mr Froling is listening in and not in Court, read out to the court his Victim Impact Statement. In it he told me of the physical harms that he suffers, including tinnitus, sleep disturbance and memory loss. He spoke to his mental harm, anxiety, insomnia, and apprehension. He still has flashbacks. He suffered financial harm. He was not covered by WorkCover. He has not been able to work professionally as a basketball player. He has lost significant income from contracts. He says the incident has strained his relationship with his partner, and has been of concern, obviously, to his family.
2. That Victim Impact Statement noted the harm suffered as a direct result of the offence; personal, emotional, and economic. I have no difficulty accepting what is set out. It is not an expert report, it is a personal report from a person who suffered the greatest harm from this crime. It serves the very practical purpose of drawing to the offender, the Court's, and community's attention, the personal harm and economic damage such crimes cause.

Objective seriousness

1. This crime charged pursuant to s 35(2) Crimes Act 1900 (NSW), involved a single punch delivered recklessly in the early hours of the morning following a very minor dispute and a flippant remark. The punch was hard and direct and to the chin. Mr Foling was caught unaware despite his comment, "What are you going to do about it, hit me?" He was, also, intoxicated, and unable to respond to the blow.
2. The fact that the offender was intoxicated is not a matter I can take into account in mitigation of sentence, but it helps explain what he did and why. He then walked away. He did not return to render assistance. It may be that he did not think of the consequences of his actions, even though he saw his victim lying on the ground. He certainly did not think of the consequences of his action when he struck a deliberate blow to the head of another person.
3. An argument was put that he was 'provoked'. Here, there was what could be regarded as a taunt by a bigger man to a smaller man. One intoxicated person said to the other: "What are you going to do, hit me?" The comment could possibly be regarded as demeaning. What occurred earlier on the dance floor, with the girls, gives context to what occurred. It can explain tension, perhaps enmity from one person to the other.
4. While it these are facts that I must consider, I accept the Crown's submission that while what was said by Mr Froling and his behaviour towards the offender could be regarded as provocative, it is of little significance. If the offender had not been intoxicated the comment would have blown over.
5. Generally, to be of any significance as mitigating provocation, behaviour has to be more than annoying, or persistent, not a simple comment. It has to be sufficient to provide a reason that might reduce an offender's moral culpability.
6. When I take into account what was said, and Mesinez's response, I cannot take into account his state of intoxication. I do not believe that the offender's moral culpability was in any way reduced by what was said or done by Mr Froling. Nor did Mr Froling's behaviour have a fundamental quality, such that it could reduces the objective seriousness of the offending in any significant manner: Williams v R [2012] NSWCCA 172 at [42].
7. I have to be careful in matters such as this, particularly when comparing it to other matters, which have attracted significant penalties. They are often described as an 'unprovoked attacks'. The absence of that aggravating circumstance does not mitigate, but certainly, this does incident does not attract that descriptor. However, where the incident occurred, what occurred, how it occurred, what led up to it, are matters I must take into account.
8. The level of injury was not as great as many that have come before the courts, but I could not accept Mr Fraser's submission that it was at "a lower level". A brain injury with permanent consequences is an injury of some significance.
9. This was a serious offence with serious consequences. It requires, as is accepted, a custodial sentence.
10. The Crown submitted that the offence, taking into account only objective features, and the context it occurred, fell within the middle of the range of objective seriousness. Mr Fraser submitted that, given the nature of the injury and all the circumstances, including the taunt, it fell below the middle of the range.
11. Where a dispute as to where a matter falls on the range is before the court, a judge is obliged to resolve that difference: R v Owen [2022] NSWCCA 214. There are also authorities that say it is not always necessary to place the matter on some notional scale: Tepania v R [2018] NSWCCA 247; Paterson v R [2021] NSWCCA 273. I find it difficult to compare subjective assessments of where something falls on a scale said to be based upon objective factors only might lie. I am not alone in that opinion: Eaton v R [2023] NSWCCA 125.
12. What ultimately, I have to do is, identify the factors relevant to the sentence, discuss their significance and then make a value judgment: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]. There is always a danger, if a judge fixates on objective seriousness, that they fall into error by engaging in a staged approach to sentencing: Markarian. However, while there is no necessity to compare or contrast the actual offence with some abstract one, some assessment of where the matter falls on a relative scale of objective seriousness is required because of the submissions of counsel and to give some content to the standard non-parole period that applies: Eaton.
13. I have noted that relevant factors and I note they occurred in combination. Reflecting on them, I cannot accept Mr Fraser's submission that this matter falls at the lower end of a notional scale. It is a significant crime which requires punishment and a custodial punishment. But that finding is only one of many I have to make. Sentencing is a discretionary exercise, but it is a principled one that requires I synthesise all the relevant factors; and they are individual and extremely variable and vary in each case. I have to discuss their significance in the light of the principles laid down by statute and established by common law and decisions of superior courts: Markarian at [51] (McHugh J).
14. I have to be guided and informed by the principles of sentencing and the purposes of punishment. Ultimately, those principles are deigned to ensure so far as possible, the protection of the community, deterrence of the offender and others - who might be tempted or might think about doing what he did - retribution and reform: Veen v The Queen (No 2) (1988) 164 CLR 465 at [476].
15. Those considerations are, as here, often complex. There are matters which point in one direction and matters which point in another.
16. Here, the principles in relation to alcohol-fuelled violence in the streets requires I give considerable weight to the Crown submissions that focus on the need for protection of society by deterrence of others. At the same time, the Court must realistically accept that for all the courts speak about the dangers, and for all the heavy sentences imposed, people like the present offender do not think about the consequences of their actions.
17. I am sure, as his evidence today makes clear, that if Mesinez had for a moment thought about the consequences, he would not have thrown that punch. I accept that thought would have not been restricted to the consequences to himself. He now regrets what he did, because of the consequences to the man he hit. Although he found it hard in the witness box to express it, I accept that his remorse was genuine. He went as far as anyone in his position could go, but as he said, he cannot now take back that blow and he cannot take back its consequences.
18. It is accepted here, that a custodial sentence must be imposed. I have to make a value judgment about the appropriate sentence and the length of that sentence. Only then do I determine how that sentence is to be served.

The case for the offender

1. Mesinez has presented a powerful case in mitigation of penalty, supported by his evidence. I accept his remorse is genuine.
2. He did walk away from a man lying in the street. That has to be taken into account. I cannot accept that he thought this was a trivial event. The man he hit had gone down and he was aware of that fact. He did, however, surrender to police. I am sure that the day he spent in custody convinced him he never wants to be in a cell again. I accept that he has suffered anxiety and stress as a result of thinking and ruminating on the potential consequences of his action.
3. He has been subject to bail conditions, including a strict curfew. He has kept to his bail condition that he not consume alcohol. His life in the community awaiting sentence has been impacted by his bail conditions. Matters I will take into account.
4. Mesinez wrote and voiced an apology to the Court. He has spoken to parole officers, who do not believe he poses a future risk. Their report notes that were he to be released into the community subject to an Intensive Correction Order the only realistic additional condition that could be placed upon him is community service.
5. He has put before the Court references from family and friends, many of whom are here to give him their support. They speak of him as; someone who was involved in the community through junior sport, as a man "full of life", looking forward to his future, who has the community's and his friends' respect and trust. They speak of his remorse. They speak of how his offending has "weighed heavily" on him. None of them indicate that he has any propensity for violence. And he has never come before a Court before for any matter, let alone a matter of violence.
6. It is highly unlikely that he will ever come before a court again, and it is unnecessary to deter him further from committing crime. This was a one-off incident in an otherwise blameless life. He is entitled to the Court's confidence that he is not in need of rehabilitation. He is still young. His actions demonstrate his immaturity, and all the material before me indicates that he is still developing and learning how to be a proper citizen.

Maximum and standard non-parole period

1. The maximum penalty for the offence of 10 years' imprisonment must be considered: Crimes Act, s 35(2). Taking into account only objective factors there is a standard non-parole period of 4 years: Crimes Act, s 35(2). I do not start with that maximum penalty, nor does a finding regarding objective seriousness require I start at the 4 years and make proportional deductions from it. I have to synthesise all relevant matters.

Submissions

1. I have the benefit of comprehensive written and oral submissions by Mr Fraser, and Mr Rolleston, solicitor for the Director of Public Prosecutions. I have sought to address the critical issues in dispute - provocation, where in the range of objective seriousness this offence lies, and remorse.
2. The defence accept that the matter was sufficiently serious for a custodial sentence. Mr Fraser's ultimate submission is that, when I take into account the powerful case in mitigation, that sentence can be served subject to intensive correction in the community. He notes the fact that this offence occurred in a split second, in an otherwise blameless life and that rehabilitation is complete. He asks for my reflection of the matters raised in mitigation and suggests a proper consideration of Mesinez's youth and immaturity, show that he is a person who has not settled criminal habits is unlikely to gain anything from custody. To the contrary, it is submitted that placing Mesinez in an intrinsically violent and nasty environment of a gaol could only do harm.
3. The community has to understand that gaols are not holiday camps. The community should be under no illusions as to what occurs in gaols. COVID-19 is still rife in gaols. Prisoners are often locked down in their cell for extended periods. They rarely get access to necessary programs. They are often stuck in cells where they often have to eat and excrete. There is no evidence before the Court that this young man would benefit in any way by being imprisoned, in fact all the evidence is to the contrary. Matters I take into account. If gaoled, it would be because the other principles of sentencing take precedence in a matter such as this, as mitigating factors can go only so far.

Instinctive synthesis

1. Every sentencing exercise is individual, but in matters such as this the consistent application of principle is of particular importance. Some of them have particular resonance here.
2. A proper sentence must reflect the harm done to a victim and the community. It should mark the Court's view of the seriousness of the crime. Sentences for such matters are intended, and must have, an impact in the hope that others will be deterred.
3. A sentence should let other wrongdoers know the sort of retribution that will fall upon them if they commit similar crimes, that is, assault others under the influence of alcohol following a minor inconsequential interaction that, were it not for drinking and the blow struck, would have passed without comment.
4. Each victim of violence is in need and deserving of vindication such that the criminal law can provide. Courts have the duty of expressing the community's disapproval of the offending. A failure to impose adequate punishment on an offender who, even though they are not by nature a violent person, commits a serious act of violence, can be seen as a failure to achieve that aim. Bringing justice by punishment can give victims and community some confidence in the law and the legal process. That aim however, has to be balanced against the potential for harm to the offender himself.
5. When I give proper weight to the seriousness of the crime committed, even taking into account; the reduction of 25% for the utilitarian value of the plea, my findings as to remorse, the strong case in mitigation, I could not, following proper application of the principles I have sought to enunciate, come to a sentence of less than 2 years: Crimes (Sentencing Procedure) Act 1999 (NSW), s 68(1). There must be a full-time custodial sentence. The cell door must shut on Mesinez.
6. I have sought to moderate that sentence, as best I can. If one looked at it, just taking into account the purely objective factors, the sentence could be regarded as lenient, but I have to synthesise all relevant matters. There will be a significant finding of special circumstances. I have sought, by that finding to reduce the period that must be spent in gaol to the minimum necessary to meet the important purposes of sentencing I have discussed. I will take into account the day he has spent in custody.

Orders

1. Mesinez is convicted. He is sentenced to a term of imprisonment of 2 years and 7 months. The non-parole period is 1 year and 4 months. It will commence on 22 August 2024. He will be eligible for, and will be released to, parole on 21 December 2025. There will be a parole period of 1 year and 3 months from that date.

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