R v Moon; R v Clarke; R v McCarthy

Judgment

1. Mr Moon, Mr McCarthy, Mr Clarke, it is my practice to tell people in advance what sentence is to be imposed, unless there is some reason to do with security that suggests that that should not occur.
2. I have differentiated between the three of you for a range of reasons and I will explain that in due course, but I have to give reasons for my judgment.
3. In the case of Mr Moon, in respect of the assault occasioning actual bodily harm in company matter, I propose to sentence you to one year five months imprisonment, to be served by way of an Intensive Correction Order and I will require you to perform during the course of that Intensive Correction Order 150 hours community service which will be organised by Community Corrections.
4. In respect of the affray matter I propose to place you on a Community Correction Order for a period of 12 months.
5. In the case of Mr McCarthy, in respect of the assault matter, assault occasioning actual bodily harm matter, I propose to sentence you to a term of imprisonment to be served by way of Intensive Correction Order for a period of one year two months, and you will be required to perform 150 hours community service.
6. In respect to the affray you will be ordered to serve a Community Correction Order for a period of 15 months, the differentiation primarily with Mr Moon being that he was far more significantly provoked than you could reasonably claim in respect of that offence.
7. With regard to you Mr Clarke, I do not propose to impose an Intensive Correction Order. I propose to impose for the assault matter a Community Correction Order for a period of 18 months. You will be required to perform 120 hours community service as a condition of that order, and in respect of the affray matter you will be subject to a Community Correction Order for a period of 15 months. There is no requirement to fix community service for the Community Correction Orders in respect of Mr Moon and Mr Clarke because of the community service orders in the ICOs.
8. The three prisoners, Daniel Grant Clarke, Bradley John McCarthy and Lachlan Edward Moon appear today for sentence in relation to two counts to which they each pleaded guilty on Tuesday 25 February, having previously pleaded 'not guilty' the day before when a jury was empanelled.
9. There were four counts on the indictment presented. The three accused each pleaded not guilty to count 4 and Mr McCarthy, who had been separately arraigned in relation to count 2, pleaded not guilty to that charge.
10. The two counts for sentence are counts 1 and 3 on the indictment. Count 1 is an allegation that the three accused on 30 March 2019 at Junee in the State of New South Wales used unlawful violence towards Andrew Hatch and Joseph Clemson and that such conduct by them was such would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. This is sometimes described as a charge of "affray".
11. That is an offence contrary to s 93C(1) Crimes Act 1900, carries a maximum penalty of ten years imprisonment, it does not have a standard non-parole period.
12. The second count for sentence, count 3 on the indictment alleged against the three accused on the same date at the same place, that they assaulted Andrew Hatch, thereby occasioning actual bodily harm to him while being in company with each other. This offence contrary to s 59(2) Crimes Act 1900, carries a maximum penalty of seven years imprisonment.
13. However I think it is agreed both by Crown and parties, and I certainly am of the view that, notwithstanding the fact that the maximum penalty serves as a yardstick for the appropriate measure of the seriousness of offending and the character of the offending for sentence the assault occasioning actual bodily harm in company offence is the more serious of the two offences.
14. The offenders as I said were committed for trial and they pleaded 'guilty' having first been arraigned and pleading 'not guilty' to all the counts in the indictment.
15. A matter that I was required to address in the course of the submissions made by the parties was the issue of an appropriate discount for the pleas of guilty. It is the first time in sentencing offenders who had not pleaded guilty at the Local Court that I have been required to consider the terms of the provisions in Pt 3, Div 1A Crimes (Sentencing Procedure) Act 1999. I will hereinafter refer to that legislation as "the Act". But having heard the submissions of the parties, noting everything that has been put to me from the parties' perspective and from my consideration of the legislation, which is full of ambiguity and holes as far as I can see, the appropriate provision to be considered in the circumstances of this matter, without getting into the intricacies of it given offers of pleas of guilty that were made at an earlier time to one or other of the counts in the indictment, is s 25D(2)(c) of the Act. In respect of each offender thus I propose to grant a reduction of 5% on each sentence requiring a calculation of such a reduction, the reduction being on what would otherwise have been the sentence imposed without regard to a discount for the plea of guilty under the legislation.
16. This case has some overarching considerations both legislative and arising out of the case law. First of all in every sentencing exercise there is s 3A of the Act to be considered and of course the weight to be given to particular parts of s 3A will vary from case to case and offender to offender. Of course in every sentencing exercise there may not be a need to consider every aspect of s 3A.
17. In this particular matter there must be some element of general deterrence in the consideration of the appropriate penalty and some element of personal deterrence. Although I do not believe in having regard to the subjective cases of the offenders and some of the unusual circumstances of the offending that personal or specific deterrence plays a substantial role in the orders that I make.
18. I am required to make each of the offenders accountable for the actions that they have admitted to or have been proven, and denounce their conduct, particularly their conduct of displaying the threat or offer of violence in a public place and also recognise the harm done particularly to the victim of the assault occasioning actual bodily harm, who would appear to be the only person substantially injured.
19. The one matter that I believe I need not consider in this sentencing exercise is the issue of the protection of the community from the offenders. I do not believe the offenders are a threat to the community.
20. Another matter to be considered of course is the issue of totality of criminality. This is not a complicated matter in this particular case. The fundamental principles in relation to totality of criminality have been discussed by the High Court in judgments such as Johnson v The Queen (2004) 78 ALJR 616 particularly at [18]; and also the landmark decision of Mill v The Queen (1988) 166 CLR 59, particularly at 63 where their Honours cited from D A Thomas' landmark text "Principles of Sentencing". There are also the observations of Street CJ in the decision of Holder and anor v R (1983) 3 NSWLR 245, particularly at p 260. I do not propose the quote the eloquent words of the former Chief Justice of the New South Wales Supreme Court, but what his Honour was referring to probably has greater salience in the context of a more complicated sentencing exercise than this when considering the principle of totality.
21. Here the offending involved two offences very closely related in time. It is said in the submissions, I think in the submissions of learned counsel Mr Wallach for Mr McCarthy, that it was a "one transaction" case. I would not particularise it as "one transaction". One transaction might be for example the case of a person driving a car and injuring two passengers in the car. But it is to be fairly said the two offences have a close relationship both in time and in circumstance, although different factors have contributed to the offending and to the involvement of each of the offenders. Thus, if one were considering for example fulltime terms of imprisonment the extent of accumulation would be slight and the extent of concurrency would be substantial.
22. In that regard I particularly note what Hall J summarised from previous cases determined in the decision of R v XX (2009) 195 A Crim R 38 particularly at [52]. I need not recite those principles his Honour summarised.
23. The other overarching issue here is of course the issue of parity of sentencing and I am required to have close regard to that, bearing in mind I am sentencing three accused at the one time, each for their participation in common offending.
24. In that regard of course again the High Court in cases such as Postiglione v The Queen (1997) 189 CLR 295, particularly at pp 301-302 per Dawson and Gaudron JJ, discussed the principles to be applied. Parity of sentencing is an aspect of 'equal justice' and as Rothman J eloquently observed in the Court of Criminal Appeal decision of Jimmy v The Queen [2010] NSWCCA 60, particularly at [254]-[255], the concept of equal justice is an aspect or a manifestation of the Aristotelian principle of equality and, as his Honour said at those paragraphs, essentially the essence of parity of sentencing is treating alike alike and those that are unalike to the extent of their unlikeness on rational and reasonable grounds. That is what I trust I can do in this particular sentencing exercise.
25. The parties have presented to me an Agreed Statement of Facts, obviously a product of some negotiation. I have no comment to make about that, or what I would have understood the case to be when the matter was listed for trial. I sentence the offenders on the basis of what has been agreed by the parties.
26. I will quote some of those Agreed Statement of Facts but I will also with regard to those Agreed Statement of Facts refer to some material that has been provided to the Court, particularly material in the case of Mr Moon. I think the appropriate way to refer back to Mr Moon's situation is perhaps to start by citing some information that arises from references that were tendered on his behalf without objection. Not that I am suggesting for a moment it was a matter that the Crown need object to, which placed the affair with which I am concerned in some sort of context.
27. Citing if I may from the beginning the relevant facts in relation to the matter. At the time of the offending on 29 March to 30 March 2019, Mr Clarke was 23 years of age; Mr McCarthy was the same age; Mr Moon was three years younger, he was 20 years of age.
28. I will come back to the detail of their criminal histories but Mr McCarthy was without findings of guilt, Mr Clarke had some findings of guilt but they were not significant; Mr Moon had a minor history, although he had a finding of guilt as a child in respect of an offence of assault occasioning actual bodily harm for which he was dealt with under the Children (Criminal Proceedings) Act 1987.
29. The named victims apparently were known to each of the prisoners. Mr Clemson was 22 years of age and had known each of the offenders for some years. Mr Hatch was 42 years of age and apparently was known, given some conversation that occurred before he was struck, but how long he was known by the three offenders I do not know.
30. Mr Moon's father is a police officer and I want to make it very clear that nothing I am doing reflects any special treatment given to the children of police officers. But the fact that he is a police officer reflects upon the matter that I have concluded works, or operates, in favour of an assessment of the objective facts concerning Mr Moon in regard to the affray.
31. The father of Mr Moon has been a police officer, as I understand it, for 11 years. He was stationed at Junee. I gather he is stationed at Wagga Wagga and the fact that the prisoner Moon's father was a police officer was a matter known to Mr Clemson.
32. Mr Clemson, Mr Moon, Mr Clarke and, at an earlier time, Mr McCarthy worked together at the Junee Abattoir. I accept from the reference provided by the father of the offender that Mr Clemson had before 29 March made insulting comments to the prisoner Moon about his father's occupation, referring to him as a "copper dog".
33. There is a reference from the brother of the prisoner Moon, who I gather is two years younger, that in fact he knew Mr Clemson and worked at the abattoir with him as well, and he had been told by Mr Clemson that his father was a "copper dog" and Mr Clemson showed him a tattoo on the back of his leg which had the letters "FTP" which meant "Fuck The Police". It is quite clear that, on the evidence available to me, that Mr Clemson bore antipathy towards Mr Moon because of his father's occupation. I will say more about that later on.
34. Returning now to the facts. As I understand it from the facts Mr Clarke had worked at the abattoir for nine years as at March 2019, given his age that places him working at the abattoir from the age of approximately 14 years, a measure of his industry. Mr Moon had worked there for three or four years. As I said Mr McCarthy had worked there as I understand it for a period of time but at the time of the offending with which I am concerned had worked at GrainCorp and had trade qualifications - he had worked at GrainCorp for at least three years beforehand.
35. Mr Clemson quit working at the abattoir in mid-March 2019. The three offenders were in attendance at a 21st birthday party in Junee. Mr Clemson was not invited to that party, but went to a couple of licensed premises in Junee, consuming about nine or ten drinks, including six rum and cola premix drinks and three or four schooners of full-strength beer. He attended the 21st party where he was not invited, collecting some alcohol to drink along the way or at the party, and at the party he approached the prisoner Moon. According to the statement of facts, "without warning" slapped him on the back of the head. Moon turned around and slapped him back and asked him what his problem was, and the facts state: "Mr Clemson 'stood over' Mr Moon, pointing down at him and in an intimidating fashion said 'what's doing dog?' and 'Oh yeah boy, you right boy, I'm going to smash you'."
36. To be fair to Mr Clarke, given other criticisms that could be made of his conduct later in the day, he intervened and told Mr Clemson effectively to 'fuck off'. Mr Clemson was told to leave the party but as he left he said these words, "Youse wait, you're going to get it".
37. He walked from the party to his father's home. He describes himself as having a level of intoxication at as eight out of ten. His father was not home. About 20 minutes after Mr Clemson left the party Mr Moon was contacted by Alex Smith, a friend of his, who advised Mr Moon that Mr Clemson was out the front of the party waiting to fight him. In that regard I have a reference from Alex Smith that, as with other material, serves as something of a statement confirming aspects of Mr Clemson's behaviour and attitude towards Mr Moon, which was aggressive and threatening.
38. Mr Clemson walked to an address at George Street Junee and I have photographs of that house produced by counsel for Mr Moon. This house was occupied by the victim referred to as Andrew Hatch, but who is also known as Andrew Morris.
39. Mr Hatch was the father of the friend of Mr Clemson's. Mr Hatch on behalf of Mr Clemson rang for a taxicab to pick him up at approximately 12:17am and in fact lent Mr Clemson $20 for his taxi-fare as apparently he had no money.
40. Mr Hatch overheard Mr Clemson speaking to Mr Moon on the phone, saying these words, "you fucked up you dog, I'm coming to you, I'm only one street away". In reality he was on one view of it nine minutes away.
41. Police investigations reveal that Mr Clemson called Mr Moon for 14 seconds at 12:20am, that is, three minutes after the cab was rung for. He called Mr Moon for 2 seconds at 12:27. Mr Moon at the same time rang Mr Clemson back and spoke to him for 31 seconds. Mr Clemson called Mr Moon again at 12:28 and they spoke for 26 seconds, or at least the call lasted that long. Mr Moon rang Mr Clemson back at 12:31am and the call lasted for 1 minute 32 seconds, and then at 12:34 and 12:35am Mr Moon missed calls from Mr Clemson.
42. During the course of these calls, one call via Facebook Messenger, Clemson made statements to the effect "Where are you? I'm out the front, come down the street, I'm going to kill you". Moon told Mr Clemson that he would not fight him, saying words to the effect "Fuck off mate, just leave it".
43. Mr Moon has told police that Mr Clemson said words such as, "Your dad can't save you" and "I'll kill you".
44. In the context of this toing and froing and these threats Mr Moon, Mr Holt, Mr McCarthy and Mr Clarke left the party and went out the front of the house where the party was, expecting to see Clemson but he was not there. It was during the calls that I have referred to occurring some time after 12.20am he spoke to Mr Clemson who urged Mr Moon to come "down the road", identifying various locations where he could meet him and ultimately invited him to come to George Street "over the hill" and he said - that is Mr Clemson "It will be the last thing you ever do".
45. And thus the three prisoners, plus a man by the name of Holt, went down to George Street. Initially Mr Hatch and Clemson saw two people walking down George Street. Clemson said words to the effect, "Fuck that's them and there's only two of them".
46. Despite Mr Hatch urging him not to, Mr Clemson ran off the verandah, apparently being within the property of Mr Hatch, ran out the gate and confronted the people coming down the road.
47. That brings us in effect to the facts of the affray. Mr Clemson came out of the gate and "shaped up" to Mr Moon. He noticed some distance behind the three prisoners were a group of other males who are not identified. I may assume might include the man Holt. He does not receive much other reference in the facts in relation to the offences. These other persons were armed with "weapons including a star picket and a bat".
48. At this point, seeing the other people it seems, Mr Clemson feared for his safety and ran back into 70 George Street closing the door behind him, leaving Mr Hatch to deal with the situation that he, Mr Clemson, had created. They are the facts of the affray.
49. I think it is correct to identify this offence within the context of offending of the character of an affray at a very low level of objective criminality, even making allowance for the number of people involved. There was no violence actually perpetrated. Mr Clemson, in commenting upon the facts relating to these three prisoners, was the person who "shaped up" to Mr Moon but thought better of a further confrontation. It was in the early hours of the morning. The affray lasted for a very short period of time. There are particular matters identified in the helpful written submissions of counsel for Mr Moon which can reasonably be accepted as identifying this offence at a low level of objective criminality. If it had stood alone one might have expected would be a matter more properly dealt with in the Local Court.
50. The assault occasioning actual bodily harm in company however is a more serious offence because all Mr Hatch did was try to be a friend to Mr Clemson, and, as I said, he was effectively left holding the baby. He went from, as I would understand it, his verandah to stand "at the front gate". The facts state that he wanted to diffuse the situation, which is to his credit, but he was confronted by the three prisoners. Mr Holt gets another mention in this context. Mr Hatch said to the four men "What do you think you're doing, get the fuck out of here". Mr Moon approached Mr Hatch and said, "Fuck you Hatch you silly old cunt" and punched Hatch twice in the face. Mr Moon is to be assessed in terms of objective seriousness of offending as being the person who precipitated the commission of the offence.
51. Mr McCarthy then punched Mr Hatch and he fell to the ground. The facts state ambiguously "whilst on the ground Mr Hatch received several blows". The people who delivered those blows are not identified I would understand, although it was not a matter debated by me that it might have even included the man Holt. Certainly the three offenders are jointly liable under the principles of joint criminal enterprise for what then occurred.
52. Then the four people I have identified left the premises and went back to the party. Mr Hatch called triple-0, reported the matter to the police and when police arrived the victim Mr Hatch had a swollen left eye and was bleeding. He was attended by paramedics, taken to "Wagga Referral Hospital". He had a left orbital "blowout fracture" medially into the ethmoid air cells of the left orbit. He was discharged the following day with pain medication and was referred for surgical assessment. Apparently he did not receive surgery and he did not require inpatient care.
53. Police spoke to Mr Clemson at 3:25am; apparently he was still at Mr Hatch's premises. Mr Clemson was moderately affected by alcohol, with a strong smell of intoxicating liquor. Apparently Mr Clemson continued to call Mr Moon after the event and Mr Moon's phone records record missing calls from Clemson at 1:16am, 2:20am and 4:34am.
54. The three offenders were arrested on 2 April 2019 and there is an account given in the 'facts' of what Mr Moon said in his electronic interview. He voluntarily submitted to a forensic procedure. On 3 April Mr Clarke attended and also participated in an electronic interview, submitting voluntarily a forensic sample. Mr McCarthy attended on 4 April and submitted a forensic sample.
55. Mr Moon apparently surrendered his phone to police but did not have the phone with him at the time of the examination. In the course of the investigation Mr Clemson said of Mr Moon that he is only "a little bloke". He said he is "shorter and lighter than me, so by himself I would not have worried."
56. I have seen the three offenders in Court. Mr Moon is certainly the smallest of the three men. I get the impression that Mr McCarthy is slightly taller than Mr Clarke, but Mr Clarke seems to be the slightly burlier person of those two. Mr Clemson also said he was not worried about Moon but he was worried about Mr Moon's "mates" joining in.
57. I have gone into considerable detail in the facts because the facts really speak for themselves in terms of the matters that were identified in the submissions concerning the objective seriousness of the crimes.
58. So far as the 'assault occasioning actual bodily harm in company' matter is concerned, the parties insisted on using the language of Pt 4 Div 1A of the Act which is directed at the assessment of the relevance of standard non-parole periods to sentencing. For the purposes of this sentencing exercise it may or may not, as the case may be, a convenient reference point. The middle range of objective seriousness as a reference point reflects, even in consideration of standard non-parole periods, what Spigelman CJ described as "not necessarily a narrow band" in the decision of R v Way [2004] NSWCCA 131, which was overturned by the High Court in Muldrock v R [2011] HCA 39 for different reasons.
59. Each of the parties, including the Crown, identify the objective seriousness in all the circumstances as below the middle range of objective seriousness. The Crown uses the expression 'just below'.
60. Whilst the issue of provocation looms very large in the consideration of Mr Moon's conduct, and accepting Mr Clarke and Mr McCarthy joined in the affray exercising a sense of loyalty to Mr Moon and understanding what he had been put through by Mr Clemson, that provocation of course has no direct role in respect of the attack upon Mr Hatch. It does provide a context for explaining the circumstances in which the confrontation, or the assault more than confrontation, occurred involving Mr Hatch as the victim. The injury to Mr Hatch was substantial. It is clearly not the most serious actual bodily harm contemplated but it is obviously more serious than bruising and scratching, which has been identified as actual bodily harm in other contexts.
61. I note in relation to the injury suffered by Mr Hatch that it did involve a fracture. It reflects a blow of some force one would have thought. I have no medical evidence to assist me in interpreting the injury but one might have thought an injury of that type to the eye could be caused by just one blow and it is perhaps more consistent with one blow, just looking to the objective facts.
62. I bear in mind there are a number of blows struck and I cannot conclude who is specifically responsible for the blow that was struck. I bear in mind in assessing the objective culpability of each of the offenders that Mr Clarke did not strike a blow, unless of course I could conclude that he struck the blows whilst Mr Hatch was on the ground. I think it is most unlikely, given the character of the injury, that Mr Hatch suffered a fractured left eye socket while lying on the ground. It is more likely that he suffered that injury while standing up and received a direct blow to that area.
63. I could not conclude beyond reasonable doubt that Mr Clarke actually struck a blow, although he pleads guilty to assault occasioning actual bodily in company, as part of a joint criminal enterprise. I cannot conclude which of the two Mr Moon or Mr McCarthy thus is directly responsible for the blow. But each of the offenders bear responsibility for the injury suffered by Mr Hatch in the context of joint criminal enterprise principles.
64. It was submitted on behalf of learned counsel for Mr Moon that whilst participants in a joint criminal enterprise are equally liable, evidence that demonstrates differential participation is relevant to the sentencing exercise. It is appropriate in those circumstances that where there are differences, in the context of parity principles which I have cited, there should be some difference in sentence. In my view, by reference to those principles and the facts I would identify Mr Moon as most culpable, both morally and legally; Mr McCarthy slightly less culpable, both morally and legally; and Mr Clarke less culpable again.
65. Then in assessing Mr Moon's culpability in relation to the assault occasioning actual bodily harm I bear in mind of course the very closely related circumstances of the affray and the provocation of the prisoner that led to that offence.
66. Just turning if I may to the respective subjective cases of the offenders. With regard to Mr Moon, I have referred to his criminal history. He has findings of guilt as a juvenile at the Junee Children's Court in March 2017, that is three years ago, when he would have just turned 18, although the offence was committed when he was 17. They are in relation to damaging property and an assault occasioning actual bodily harm for which he was placed on a bond under s 33 of the Children (Criminal Proceedings) Act. He also has a finding of guilt shortly afterwards in September 2017 for driving a vehicle while there was an illicit drug in his blood for which he was convicted and disqualified, and fined a modest sum of money.
67. Notwithstanding the finding of guilt for assault occasioning actual bodily harm, noting the way in which it was disposed of, I conclude that he does not have a significant criminal history. With regard to the presence of an illicit substance in his blood as the charge is briefly described in the criminal record, his father in his reference quite frankly reflects upon the fact that the offender some years ago had difficulties with substance usage and that finding of guilt is consistent with that.
68. Apart from the reference from his father and his brother, which I have taken into account both in respect to the material facts and in terms of their assessment of his conduct as a member of their family, which is a positive picture, I have a reference from a man called Stephen Smith, I refer to him as the ubiquitous Stephen Smith because he has provided references for all three offenders. But when I consider his background and his relationship with the offenders it explains the reason that he has gone to the trouble of providing these three references for this matter. Mr Smith is a mature man. He worked for the Department of Corrective Services at Junee Gaol prior to 1997. In 1997, that is 23 years ago, or slightly less, he went to the abattoir. He started on the slaughter floor, then became a foreman, then became the Occupational Health and Safety Officer and has been the Plant Manager there for the last eight years. Thus, in the context of the various offenders having worked at the abattoir, or still working at the abattoir, he has had ample opportunity to observe them. It also transpires that his son Alex is a close friend of each of the offenders. He describes Mr Moon as a reliable hard worker. He describes him as "a good kid". He expresses disappointment at his conduct and says that in his observation he would not regard Mr Moon as an aggressive or violent person. He makes the same observation I hasten to say in respect of each of the other two offenders. He is considered a loyal friend, he is not necessarily a "natural born leader", but he also says he is not necessarily "silly type" who would go along with bad behaviour as such.
69. I have other references, friends of the prisoner's father who have known the family over a number of years in various contexts. One such person is the supervisor at the abattoir who also has seen the offender Moon at work. He speaks of his industry and his lack of aggression in a very difficult working environment.
70. Likewise another referee, Mr Passlow, had Mr Moon under his supervision for three to four years and when he worked at the abattoir he was a very good worker, kept to himself, did his job, never caused any trouble, always sought permission to attend to matters outside of his work responsibilities. Another referee speaks of his devotion to his family. His grandfather was a Vietnam war veteran and he honours his grandfather's participation in that conflict by Anzac Day observance for reflecting what his father observes about his respect for his elders and his respect for his family.
71. He is spoken of as a person who is friendly and committed to his work and to his sporting interests. His primary sporting interests and the common denominator it seems through this affair is the association with the Junee Rugby League Club, although as I understand it Mr McCarthy because of a serious head injury, does not play rugby league any more.
72. The final referee is a coalminer from Wollongong who coached Mr Moon when he lived at Appin, where I assume Mr Moon's father was stationed as a police officer before he came to Junee, and he speaks of the uncharacteristic character of the facts to the person that he knows.
73. In respect of Mr Moon's case I have had regard to the photographic evidence that was the subject of comment by counsel for the prisoner and the JIRS statistics.
74. With regard to submissions that were put on behalf of Mr Moon, if I may deal with those now briefly. I have noted the submissions as to the objective seriousness of the affray and I have already commented upon that and I have sighted particular evidence that is sought to be relied upon by counsel.
75. Also I have taken into account the particular matters identified in the submissions as I said that are relevant to the assessment of that matter.
76. Likewise the submissions made by counsel for the prisoner Moon in respect of the assessment of the objective seriousness of the assault occasioning actual bodily harm offence. To be fair whilst there was some subtle difference in the Crown's position, essentially the Crown's position was not far removed, if at all, from the positions enunciated by each of the counsel for the offenders.
77. I have taken into account the submissions made in relation to the prisoner's subjective circumstances. I have no reason to doubt the truthfulness and reliability of the referees and their assessment of the prisoner.
78. The prisoner, Mr Moon however has, it seems to me, somewhat more instability in his domestic circumstances than Mr McCarthy and Mr Clarke. But then again he is three years younger, which I have noted, and it may be a reflection of his greater immaturity.
79. I have taken into account the submissions that have been put by his counsel in relation to the effect of the subjective matters in his case. I am prepared to conclude as mitigating factors both in the assessment of the objective facts and dealing with purely subjective matters arising under s 21A(3), the fact that the offending itself was unplanned, which is of course relevant to the objective seriousness of the offending, that Mr Moon was provoked by the victim and provoked not only on the night, but provoked over a period of time and it was very substantial provocation indeed. I am prepared to conclude, notwithstanding the finding of guilt for assault occasioning actual bodily harm, that he does not have any significant record of previous convictions. I am prepared to accept, allowing for his immaturity, that he was a person of good character, that he is unlikely to reoffend, the referees speak of his industry continuing after the offending, and that he has good prospects of rehabilitation. There is some remorse shown by him but it is not a significant matter in my view; not as significant perhaps as the evidence available in relation to Mr McCarthy.
80. His plea of guilty of course is a mitigating factor but he receives a discrete discount. There has been a degree of cooperation with the authorities in the prosecution of the matter and I have taken that into account as required under s 22A of the Act.
81. With regard to Mr Moon there is one other comment I need to make concerning the antipathy towards Mr Moon because of his father's occupation. In my view the basis of Mr Clemson's antipathy towards Mr Moon, and thus his provocative behaviour, significantly increases the importance of provocation in sentencing Moon, not just for the matter where provocation is directly relevant but setting a context for the offending involving Mr Hatch.
82. The family of police officers and judicial officers, or any other people performing public duties, in good faith, should not be the subject of threats, or intimidation, or insult, by reason of the professional calling of a relevant family member performing those functions.
83. I accept that the attitude of Mr Clemson was not something developed on the night but was longstanding and he had targeted Mr Moon deliberately by reason of his father's occupation. In that context, of course, I understand as a physical fact in this case that Mr Moon of the three offenders was the smallest of the three and it seems to me Mr Clemson's attempts to intimidate Mr Moon not only arose out of his antipathy towards him because of his father's occupation but because of his size. The criminal history of the prisoner Moon does not place him in as strong a position as Mr McCarthy who had no prior criminal convictions. Also, Mr Clarke had no significant findings of guilt in my opinion. But I have concluded, as I said, in accordance with the submissions made by her those other positive matters that arise under s 21A(3).
84. Turning now if I may to Mr McCarthy. A number of exhibits were tendered on his behalf and those various referees in the references tendered as exhibits speak favourably of the prisoner's lifestyle, his usual conduct and the strong support he has from his family and the position his family holds within the Junee community.
85. I have mentioned that the prisoner was a talented rugby league footballer but a severe head concussion in 2017 has meant that he cannot play the game anymore but he is involved at least in the game time or the game day activities of the club.
86. Mr Smith again said he had never seen the offender act in a violent or aggressive manner in his association with him and that the conduct that brings him before the Court was entirely uncharacteristic, and given his criminal history I accept that is so.
87. It is quite clear that both Mr McCarthy and Mr Clarke had no business being involved, other than a sense of loyalty to Mr Moon. Of course Mr Moon foolishly responded to Mr Clemson's taunts, and certainly none of them had any right whatsoever to bring Mr Hatch into peril as they did.
88. Mr Smith said that the prisoner McCarthy had recognised the wrongfulness of his actions, had expressed his regret, being extremely remorseful for his behaviour and had expressed embarrassment and shame, not only for himself, but the shame and embarrassment brought upon his family.
89. Mr Smith confirmed the settled domestic situation of the prisoner and he was confident the prisoner would not offend again in the future. It is important to note in Mr Smith's case his background of working for Corrective Services.
90. I have a reference from a senior officer of GrainCorp, the prisoner's employer for the last three years, confirming not only the prisoner's employment but his strong work ethic, his honesty and his commitment to the job, having a strong rapport with clients, and highly regarded within that organisation. Importantly, the prisoner has made his employer aware of the current charges. He has been entirely transparent in his dealings with his employer about his legal predicament, and the employer's representative confirms that the prisoner has taken responsibility for his actions.
91. An official from the St George Illawarra Rugby League Club has known the family for a number of years since 2018. This referee, by reason of his background, has some prescient observations to make. He has been involved in the current position of seeking talent for that particular rugby league club for 15 years working in country New South Wales. But before that he had a distinguished career in the New South Wales Police Force, serving 30 years as a detective working for the Armed Hold Up and Major Crime Squads before retiring when he was Crime Manager at Campbelltown; no doubt an extremely challenging position.
92. He expressed the view that the conduct of Mr McCarthy was totally out of character for him. He said that in his dealings with the prisoner the prisoner had shown him to be "an honourable" person who "always played by the rules". He is in contact with the family given his recruitment of the prisoner's older brother some years ago has existed for the last 11 or 12 years.
93. Significantly in his case his mother gave oral evidence. She is a registered nurse and has been so for 16 years. She spoke to the prisoner on the morning of the offences; that is sometime around about 8am on the 30th, the offences having been committed around about 1am or just before then on that same morning. I accept from her evidence, albeit that it involves representations that the prisoner may have given evidence of himself, that the prisoner took responsibility for his conduct immediately on discussing the matter with his mother. He did not understand at that time the actual bodily harm that had been suffered by Mr Hatch, although Mr Hatch was apparently bleeding from the blow or blows struck, the actual presence of a fracture would not have been known to him. He has repeatedly said subsequently, that he had made "stupid choices" and regretted not having persuaded Mr Moon not to take offence at what Mr Clemson had been saying. He also regretted Mr Hatch becoming involved, and acknowledged that what had happened should not have happened outside his home.
94. Mrs McCarthy, if I may call her that, confirmed the prisoner's industry, the settled relationship he has with his partner, and the great embarrassment and shame he has brought upon a family that apparently has an excellent standing in the community. She observed some changes in him since his arrest. She made the point that he told her that he did not think that the affair would escalate to the point that it did. It is quite clear to me, notwithstanding what appears to be a determination to have a confrontation with Mr Clemson, that the matter did escalate, particularly in relation to Mr Hatch, beyond what had been initially anticipated.
95. In his helpful submissions learned counsel for the prisoner accepted that whilst there was no provocation towards this prisoner by Mr Clemson, the prisoner was drawn to Mr Moon's predicament by reason of his loyalty. He submitted the prisoner had a limited role in respect of the circumstances of the affray. As I said, the affray was a very limited affair indeed as particularised in the submissions of Ms Hutchinson for Mr Moon. I bear in mind, although it is ultimately not relevant in the sentencing exercise, Mr Clemson was not charged. It is an astonishing situation that he was not charged given his contribution to the affair. This is no criticism of the learned Crown, but it is difficult to understand, given the character of the affray, why all people involved were not charged. Clearly the affray and the assault upon Mr Hatch were unplanned.
96. Mr Wallach submitted in relation to the 'assault occasioning actual bodily harm' matter that the prisoner was clearly contrite, and I am prepared to accept in his case that he has established on the balance that he has taken responsibility for his conduct and is relevantly to be regarded as contrite in accordance with the relevant subparagraph in s 21A(3) of the Act. He noted that the prisoner, Mr McCarthy, had only thrown one punch but had to be sentenced in the context of joint criminal enterprise principles. He said that I could not be satisfied beyond a reasonable doubt which blow caused the fracture to the eye socket, but any punch thrown by this prisoner was completely unnecessary, particularly after Mr Moon had already thrown a few punches. There is no suggestion of Mr Hatch being aggressive in any way.
97. He, in his submissions, identified on behalf of Mr McCarthy the criminality in both offences overlapping, and I have already dealt with that matter. He said in respect of the subjective circumstances of the prisoner that the prisoner had matured since the offending and that I could find in his case various matters, which I do. Firstly, that he was of prior good character, that he did not have any criminal history, that he has excellent prospects of rehabilitation, there is no suggestion of a background of antisocial activity. Contrition is a relevant matter. Also, I should take into account in his favour the fact that the prisoner has endeavoured to, through his discussions with his mother, reflect upon his wrongful conduct in the manner I have identified. He submitted I should not impose a fulltime custodial sentence.
98. With regard to Mr Clarke, again a number of references were provided in his case. There was no oral evidence as there was not in the case of Mr Moon, although it is not a significant matter. I have noted the prisoner Clarke, having worked at the abattoir it would seem since he was 14 or 15 years of age, he is obviously a very industrious young man who has had a very deprived and a dysfunctional or sad upbringing contrary to that of Mr Moon and Mr McCarthy. I do not want to go through the litany of ways that he has had to suffer but he has lost two brothers to suicide, his father had significant substance abuse difficulties, he has been estranged from his mother and remaining siblings. He seems to have forged a path without family assistance, which could not be said, although it is not an unfavourable thing, of Mr Moon and Mr McCarthy.
99. He has a partner and two children aged five and two. His mother‑in‑law, who has known him for 16 years speaks of the impact of the blows to him throughout his life and those difficulties, but how he has overcome them. He is a loving and active father. He is extremely hard working. He is disappointed in himself in relation to his conduct. He has expressed regret for his involvement in the offending.
100. Another mature person who has known the prisoner since the prisoner went to school with that person's stepchildren, works with him at the abattoir, and he observes the prisoner as a person who has settled down and matured, is hardworking and family-oriented, which I accept to be true.
101. His counsel, in written and oral submissions, put very clearly to the Court that in his case it could not be held, all things considered, that the objective gravity of the offending in each offence crossed the "threshold" mandated by s 5 of the Act. I accept in his case that that is true, and I am distinguishing him from the other two offenders in respect of the assault occasioning actual bodily harm for that reason. I have taken into account what his counsel said about the criminality and where it may lie in the range of seriousness. If I be so bold to say so in the context of the Crown's submissions, I would have understood the Crown to be submitting to me that in Mr Clarke's case I should view him as being essentially as objectively culpable as the other two offenders. As I have said, in relation to the assault occasioning actual bodily harm, I do not agree with that submission. I accept what Mr Cooper said, particularly in the absence of any evidence of any particular blow being struck by Mr Clarke, although the prisoner has admitted his guilt in relation to that offending. His counsel conceded that the offence was an offence of public violence, although both offences were committed in the early hours of the morning, very few people were around, and hardly anybody bar the participants would have been aggrieved by the conduct.
102. I accept what the Crown has put and what is put in fact by counsel for Mr Clarke that Mr Hatch, standing at his gate, could have expected a degree of safety and could expect not to be molested. The disdain with which he was described by Mr Moon does not do Mr Moon any credit.
103. I was taken to a decision of Lulham (2016) 230 A Crim R 287, particularly in the judgment of Bathurst CJ at [5] commenting upon s 21A(2)(eb). In considering the offending in count 3 in the indictment the only potential "aggravating factor" could be that expressed in that subparagraph to quote it, "The offence was committed in the home of the victim or any other person". I do not propose to read again what I read onto the record from Chief Justice Bathurst's judgment at para 5. It is clear that his Honour was indicating that an offence may be relevantly with the ambit of that aggravating factor, although a particular offence does not actually occur inside a dwelling. He made the point that it may be an aggravating factor if an offence occurs outside a dwelling depending upon the facts of the case and the proximity of the events to the dwelling.
104. There is a live issue in this matter having regard to the wording in the facts as to whether Mr Hatch was struck on his property or outside his property with the facts referring to him being "at the gate". He may have been standing inside his property or on the border of his property, or just outside his property. But, as I said, I accept the proposition that he was entitled to be safe there, bearing in mind he had obviously left his home, or the verandah of his home, to speak to or confront the offenders. It seems to me, however, having regard to the facts available to me, that wherever he was standing, there is the likelihood, or at least a reasonable possibility, that the three offenders were outside the property at the time of striking the blow. And bearing in mind Mr Clarke did not strike any blow at all, it is even more likely that he was outside the property. As I said, the statement of facts has some ambiguity in it.
105. Notwithstanding that the ambiguity it is questionable, even noting the words of the learned Chief Justice, whether the facts of themselves, accepting Mr Hatch to be standing on his property, was relevantly "in his home". Even if that aggravation was established beyond reasonable doubt there clearly are degrees of aggravation within this and all other sub-categories of circumstances of aggravation. If I was to be satisfied beyond reasonable doubt it seems to me to be a matter at the very cusp of culpability under that particular provision. But he was entitled, as I said, under s 21A(1) of the Act to not be molested.
106. Counsel for Mr Clarke referred to the limited record of the offender, and I conclude, as I have said earlier, that he had no prior significant criminal history. He was a person of good character. He has good prospects of rehabilitation, and is unlikely to reoffend. In all three cases I conclude in the context of considering prospects of rehabilitation that this offending was very much a one off affair. It is significant in my view, in relation to Mr Clarke, that not only has he a stable domestic situation but he has maintained employment for such a lengthy period of time. Like Mr McCarthy of course, Mr Clarke was not directly provoked by Mr Clemson but stood up for Mr Moon in a misplaced display of loyalty and also to ensure that Mr Moon did not come to any harm from Mr Clemson. And this aspect of the matter does provide some explanation for him accompanying Mr Moon.
107. As with Mr McCarthy, the criminality whilst separate does overlap considerably, and in the context of considering a custodial sentence, for example, bearing in mind under totality principles each offence would require a separate sentence. There would, if there were terms of imprisonment to be imposed given the overall scheme of the facts as to the relationship of one offence to the other, a very high degree of concurrency if such terms of imprisonment are to be imposed. However, given what I see as Mr Clarke's lesser role in relation to count 3 I do not believe that the threshold under s 5 has been breached, and I have determined thus that he should receive sentences involving community correction orders in relation to both offences. There will, of course, because the Act does not permit postdating the commencement of those orders, entire concurrency but no harm is done. In his case, as with all the others, I have determined that there should be a discount of 5%.
108. Finally, if I may just go back to the Crown's submissions, I have dealt with a number of the submissions that the Crown has put in the course of commenting upon other material put to me by the defence. She noted features of the affray which I have taken into account. I have already noted what she said about the offence particularised in count 3 in the indictment, the crossing of the s 5 "threshold", and the assessment of the matter by reference to the middle range of objective seriousness, and noted in effect the innocent position of Mr Hatch. I have already taken into account what she said about the character of the injury. She did note in relation to the pleas of guilty, the utilitarian value of children not being required to give evidence. As I understood the Crown case there was some matter concerning the distress caused to Mr Hatch's children. But it is not a salient matter ultimately in this sentencing exercise given the fact that the accused had pleaded not guilty to the offence pleaded under s 112(2) Crimes Act 1900.
109. But having noted what the Crown said about that utilitarian benefit it is not a matter captured by the relevant provisions now that are required to be considered under the Act concerning discounts for pleas of guilty. But I appreciate the Crown drawing that matter to my attention. Ultimately the learned Crown Prosecutor said she did not generally disagree with the analysis of the matter put by counsel.
110. One would wonder having heard me go through all this, given the position of the Crown, why one would go into so much detail. Well, the truth of the matter is the community expects judicial officers doing their job to concentrate on the material before them and to properly judge these matters with a proper regard to the interests of the victim or victims, the prisoners, and the community that has an interest in all sentencing exercises. To be frank, I have always believed that if judges or other judicial officers are not prepared to put the effort in to analyse why they have come to a particular conclusion then that diminishes the respect that might be had for the ultimate decision. It is easy enough from a distance to look at a particular decision and say the judicial officer got it wrong. But if the judicial officer has actually gone to the trouble to explain the reasons for differentiating between offenders, or coming to a particular conclusion in relation to a particular offender once those considerations are had, it seems to me that greater respect will be shown for the ultimate conclusion that is reached by the Court.
111. Thus, hopefully, having taken into account all relevant material and expressing my gratitude to the parties for the assistance they have provided to me, I will sentence each of the offenders.
112. Now Mr Moon, could you stand up please. In relation to count 1 you are convicted. Pursuant to s 8(1) Crimes (Sentencing Procedure) Act 1999 instead of imposing a sentence of imprisonment you are ordered to comply with a Community Correction Order for a period of 12 months. As I have said, I have diminished that period compared to your co-accused because of the provocation issue. The standard conditions of the order apply. Firstly, you must not commit any offence; secondly, you must appear before the Court if called upon to do so at any time during the term of the order. The following additional condition applies, a supervision condition requiring you to submit to supervision by a Community Corrections Officer. If you fail to comply with the conditions of the order further action may be taken against you. This may require you to return to court to be resentenced. And I will just tell you what that means.
113. Having ordered that you serve a term of imprisonment by way of Intensive Correction Order, you could come back if you are in breach of this particular order and find yourself with a partially accumulative term of imprisonment upon the one I am about to announce. Finally, in relation to this particular order you are directed to attend the Court registry where a copy of this order will be explained and given to you.
114. In relation to count 3, I have had regard to s 66 Crimes (Sentencing Procedure) Act 1999. That concerns the interests of the community and the protection of the community. You are convicted. There being no other appropriate penalty you are sentenced to a term of imprisonment for a period of 1 year 5 months. That represents a term of imprisonment of 18 months reduced by 5% with the sentence rounded down slightly. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999 the sentence imposed on you is to be served by way of an Intensive Correction Order. That sentence will commence today, 27 February 2020. You must report to the Community Corrections Office at Wagga Wagga as soon as practicable but no later than seven days from 27 February 2020. I would advise you to report today given the fact you live at Junee. The standard conditions apply. Firstly, you must not commit any offence; and secondly, you must submit to supervision by a Community Corrections Officer.
115. The following additional condition applies: a community service work condition requiring the performance of community service work for 150 hours. If you fail to comply with the conditions of this order sanctions may be imposed, not by me, but by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order. If the order is revoked you may be required to serve all or some of the period of your sentence in fulltime custody. Finally, in relation to this order you are directed to attend the Court registry where a copy of this order will be explained and given to you. I just make it very clear to you, if you breach this order you can go to gaol. It will not come back to me, the action will be taken peremptorily by the Parole Authority. You can take a seat, thanks very much.
116. Mr McCarthy if you do not mind standing up, thanks very much. In relation to count 1 you are convicted. Pursuant to s 8(1) Crimes (Sentencing Procedure) Act 1999 instead of imposing a sentence of imprisonment you are ordered to comply with a Community Correction Order for a period of 15 months. The standard conditions of the order apply. Firstly, you must not commit any offence, and you must appear before the Court if called to do so at any time during the term of the order. The following additional condition applies, a supervision condition requiring you to submit to supervision by a Community Corrections Officer. If you fail to comply with the conditions of the order further action may be taken against you. This may require you to return to court to be re-sentenced. Finally, you are directed to attend the Court registry where a copy of this order will be explained and given to you.
117. In relation to count 3, I have had regard to s 66 of the Act. You are convicted. There being no other appropriate penalty you are sentenced to a term of imprisonment of one year, two months. Pursuant to s 7(1) 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, 27 February 2020. You must report to the Community Corrections Office at Wagga Wagga as soon as practicable but no later than seven days from today. I would suggest you go there today. The standard conditions apply; you must not commit any offence, and you must submit to supervision by a Community Corrections Officer.
118. The following additional condition applies: a community service work condition requiring the performance of community service work for 150 hours. If you fail to comply with the conditions of this order sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning imposing more stringent conditions, or it may include revocation of this order. If the order is revoked you may be required to serve all or some of the period of your sentence in fulltime custody. You are, finally, directed to attend the Court registry where a copy of this order will be given to you. You can take a seat.
119. Mr Clarke if you do not mind standing up sir. In relation to count 1 you are convicted. Pursuant to s 8(1) of the Act instead of imposing a sentence of imprisonment you are ordered to comply with a Community Correction Order for a period of 15 months. The standard conditions of that order are the same as the other orders I have made. You must not commit any offence, you must appear at court if called upon to do so at any time during the term of the order. The following additional condition applies: a supervision condition requiring you to submit to supervision by a Community Corrections Officer. If you fail to comply with the conditions of the order further action may be taken against you. This may require you to return to court to be re-sentenced. Finally, you are directed to attend the Court registry where a copy of this order will be explained and given to you.
120. In relation to count 3 you are convicted. Pursuant to s 8(1) Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order for a period of 18 months. The standard conditions of the order apply: You must not commit any offence. You must appear before court if you are called upon to do so. And the additional condition for you is that you are to perform community service work for 120 hours. You also have a supervision condition requiring you to submit to supervision by a Community Corrections Officer. If you fail to comply with the conditions of the order further action may be taken as with the other Community Correction Order, which may require you to return to court, and you must go to the registry to have that order provided to you. You can take a seat sir, thanks very much.
121. I have ordered community service work to be performed by each of the offenders; for two of them, in respect of an Intensive Correction Order ordered for each offender, for Mr Clarke in respect of the Community Correction Order. I have done so on the basis of reports prepared yesterday by Ms Coughlan of the Community Corrections Office in Wagga. I am very grateful to her for coming up here at short notice and assisting the Court. Her cooperation was much appreciated. All three offenders are assessed as suitable to undertake community service work. They are required, I should point out, to report to the Wagga Community Corrections Office by 4.30pm today as far as the Service is concerned so that, although I have not made that a condition of the orders that suggests to me that you should go and report before 4.30pm today gentlemen, to the Wagga Wagga Community Corrections Office. I am sure one or other of the legal representative at the bar table can tell you where that is. Do you understand that? You will go today, because they need to see you today before 4.30pm.
122. Madam Crown, is there anything else from you?
123. SOLICITOR ADVOCATE: No, thank you your Honour.
124. HIS HONOUR: What about you?
125. HUTCHINSON: No thank you, your Honour.
126. HIS HONOUR: What about you, Mr Wallach?
127. WALLACH: Nothing from me, thank you.
128. HIS HONOUR: What about you, Mr Cooper?
129. COOPER: No thank you, your Honour.
130. HIS HONOUR: Well gentlemen I wish you well for the future. This behaviour's inexcusable, we know that. Things could've been worse I suppose, but the reality is you've really got to take more responsibility for yourself and exercise the maturity that people have spoken of that you have. And most importantly, and particularly in the case of Mr Moon and Mr McCarthy, you've got to have, when you conduct yourself in public, more regard for not only your own reputation but the reputation of your families. I'm not saying for one moment Mr Clarke's family don't have a good reputation. But it seems to me from the material that there are aspects of your backgrounds that show that the way you behaved, particularly towards Mr Hatch, has brought discredit not only on yourself but your family, and I think you should understand that doesn't work favourably for them or for yourselves.

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