[2016] ACTSC 102

Newman sentenced to a 16-month intensive correction order subject to conditions and a non-association order.

Reid sentenced to a 20-month intensive correction order subject to conditions and a non-association order.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - cooffenders - assault occasioning actual bodily harm - affray - offences objectively serious - premeditated - in company - in a public place - members of outlaw motorcycle gang - discount for guilty pleas - assessed suitable for intensive correction orders - community service condition - non-association order

Crimes (Sentencing) Act 2005 (ACT) ss 7, 11, 23, 33, 77, 78

Crimes Act 1900 (ACT) ss 24, 35A

R v Ngata [2015] ACTSC 356

SCC 68 of 2015, SCC 69 of 2015, SCC 70 of 2015; SCC 71 of 2015

1. Each offender pleaded guilty to the offence that on 4 October 2014 he assaulted Robert Geppert thereby occasioning actual bodily harm. Assault occasioning actual bodily harm is an offence against s 24 of the Crimes Act 1900 (ACT) (Crimes Act). It carries a maximum available penalty of five years' imprisonment.

2. In addition, each offender pleaded guilty to a transferred summary offence of affray. Affray is an offence against s 35A of the Crimes Act. It carries a maximum penalty of two years' imprisonment.

3. The offenders pleaded guilty on 29 February 2016, after the charges had been committed to the Supreme Court for trial.

4. The offenders were members of the Rebels outlaw motorcycle gang (Rebels), as was Mr Ngata. Mr Ngata was the most senior member of the three. He was the sergeantatarms for the Rebels in the ACT and the surrounding New South Wales area. Mr Reid was the next most senior. He was president of the ACT Eastside chapter of the Rebels. Mr Newman was the most junior. He was a general member of the Rebels.

5. Mr Newman discovered that members of a rival motorcycle gang, the Finks, were at the Westfield Belconnen Shopping Centre (Centre). He advised Mr Ngata and/or Mr Reid of this fact. The Rebels' policy was that members of rival motorcycle gangs were not allowed in Rebels' territory. Mr Ngata, Mr Reid and Mr Newman arranged to meet at the Centre.

6. The three offenders met at the Centre at about 5:00 pm. They saw motorcycles in the lower car park, which they assumed belonged to members of the Finks. They waited for over an hour, discussing what would occur when the Finks members returned to their motorcycles. They agreed to demand the jackets of the Finks members, which would have Finks insignia on them. The offenders agreed that, if the jackets were not relinquished, they would take the clothing by force. They considered it unlikely that the Finks members would voluntarily relinquish their jackets and likely that there would be a struggle to obtain them.

7. The offenders kept watch in the vicinity of the exit to the Centre that was near to the motorcycles. At about 6:05 pm, Mr Altmann and Mr Geppert, Finks members, left the Centre and walked towards their motorcycles wearing jackets and Tshirts with Finks insignia on them.

8. Mr Ngata approached them and said words to the effect of, "Did you know that this is Rebel territory?" Mr Geppert tried to escape by running up some stairs. Mr Newman grabbed Mr Geppert as he attempted to run away and punched him at least three times with a closed fist to the back and rear of the head. Mr Ngata then punched and restrained Mr Geppert while Mr Newman continued to punch him with a closed fist to the face. Mr Ngata forced Mr Geppert to remove his jacket and then ripped Mr Geppert's Tshirt over his head and walked off.

9. Although Mr Reid did not personally cause injury to Mr Geppert, he was part of the joint criminal enterprise. While the other offenders attacked Mr Geppert, Mr Newman wrestled with Mr Altmann at the bottom of the stairs. He used his right hand to uppercut Mr Altmann. The three offenders then left the Centre. Mr Geppert was bleeding profusely from the mouth and nose.

10. As noted above, the incident occurred at an entrance/exit to a shopping Centre. It was observed by members of the public who feared for their safety. That is the basis of the affray charges.

11. Mr Ngata pleaded guilty and was sentenced by Refshauge J for aggravated robbery, an offence against s 310 of the Criminal Code 2002 (ACT), which carries a maximum penalty of 25 years' imprisonment: R v Ngata [2015] ACTSC 356. The starting point for his Honour's sentence is not clear; it is not clear whether the discount allowed by his Honour was a total of 40% or a greater discount. In any event, the starting point for the sentence must have been about five or six years' imprisonment.

12. While a comparison can be made between the objective seriousness of Mr Ngata's conduct and that of the offenders, such a comparison does not greatly assist in the determination of appropriate penalties. The maximum penalty for the charge to which these offenders have pleaded guilty is only 20% of the maximum penalty for the offence for which Mr Ngata was sentenced (25 years' imprisonment). It is trite to say the maximum penalty is a critical sentencing parameter.

13. The offence of assault occasioning actual bodily harm committed by the offenders is objectively very serious.

14. As the prosecution submitted, there are two principal factors to be considered when assessing the objective seriousness of such an offence: first, the nature of the offending conduct; and, second, the nature of the injuries that were sustained by the victim. In this case, there is little information about the injuries.

15. However, there is a good deal of information about the offending conduct. In relation to the conduct, the following matters are of some significance.

16. So far as Mr Newman is concerned, he was responsible for advising the co-offenders about the presence of the victims at the Centre and, in that sense, he instigated the series of events that unfolded thereafter.

17. The offence was premeditated. The three offenders loitered in the vicinity of the entrance/exit area for more than an hour, waiting for the victims to exit the Centre. The prosecution submitted that they "lay in wait", which is a reasonable characterisation of what occurred. While they were waiting for the victims to exit the Centre, the offenders discussed what they would do.

18. The offence is also rendered more serious by the fact that it was committed in company. Each offender committed the offence in the company of two others. Further, the offence was committed in a public place; it was likely that members of the public were confronted with the incident. This aspect is an element of the offence of affray and it does not aggravate that matter, but it can be taken into account in relation to the offence of assault occasioning actual bodily harm.

19. I agree with the prosecution's characterisation of the assault offence as "intense and ferocious".

20. I also agree with the submission that this offence is very different from many offences of assault occasioning actual bodily harm. Very often, such offences are committed spontaneously and they involve only one or a couple of blows.

21. Mr Newman was not the direct perpetrator of the assault on Mr Geppert, but he was part of the arrangement concerning the manner in which the members of the rival gang would be treated and he actively participated, albeit in relation to another victim, Mr Altmann. Mr Newman was the junior member of the trio. His lack of seniority within the Rebels was consistent with the role that he played; the CCTV footage shows him trailing the co-offenders, who give the impression of taking a greater leadership role in the arrangement, consistent with their status within the Rebels.

22. Although Mr Reid was not personally responsible for the actual bodily harm sustained by Mr Geppert, his role was somewhat more significant than that of Mr Newman.

23. The motive for the offence was to assert the territorial supremacy of the offenders' motorcycle gang. Such matters cause concern in the community. It is desirable to discourage the antisocial activities of motorcycle gangs.

24. The related offence of affray is also objectively serious. Members of the public were confronted by an aggressive exchange between members of rival motorcycle gangs.

25. Mr Reid spent 55 days in custody prior to 17 December 2014.

26. There are two driving matters and a breach of the peace on his criminal history. More relevantly, in 2007, he committed two offences of assault occasioning actual bodily harm, which resulted in a two-year good behaviour order in 2009. In 2011, he committed an offence of obstructing a Territory official. In 2012, he committed a common assault, which resulted in a 12-month good behaviour order from July 2013. As far as I am aware, the assaults were not related to membership of the Rebels motorcycle gang. Nevertheless, they show that the offender has a propensity to commit what the penalties suggest are relatively minor assaults.

27. Mr Reid was 26 years old at the date of the offences. He is now 28.

28. He has a good relationship with his parents. His mother attended Court to support him. His parents are separated. He is a caregiver to his father, who is currently hospitalised with a heart condition. When his father is not in hospital, the offender assists him with running errands, shopping and the like. The offender is in a long-standing relationship.

29. The offender completed Year 12 and, most recently, has been employed as a part-time labourer.

30. The offender's mother understands that, within the last couple of weeks, the offender terminated his membership of the Rebels motorcycle gang. I do not necessarily accept that assertion. The recent pre-sentence report states that the offender indicated that he was a current member of the Rebels. He did not inform the author of the report that he had ceased his membership. Ongoing membership of the Rebels is an aggravating circumstance that the prosecution would need to prove beyond reasonable doubt and I am not satisfied that it has done so. On the other hand, I am not satisfied that the offender is no longer a member of the Rebels. It is a neutral consideration. It would have been a matter in mitigation if the offender had satisfied me that he had terminated his association with the Rebels.

31. The offender's mother has encouraged the offender to engage in competitive boxing, a sport in which he has taken a recent interest. Although she is concerned that boxing is a relatively dangerous sport, she sees it as the least of several evils, an assessment with which I agree.

32. The author of the pre-sentence report refers to the offender's limited insight into the factors behind his offending behaviour and the consequences of his behaviour. The offender informed the author of the pre-sentence report (presumably by way of mitigation) that he had acted on the command of a more senior member. One would expect a 26-year-old man to exercise independent judgment in relation to the stupidity of such conduct.

33. The author of the pre-sentence report assessed the offender as at medium to high risk of re-offending, largely on the basis of his possible ongoing relationship with the Rebels and his limited insight into the offending conduct.

34. Mr Reid is not without prospects of rehabilitation. However, his prospects are uncertain given his past association with the Rebels, his lack of insight into his behaviour, his failure to exercise mature independent judgment about his behaviour, and his history of assault offences.

36. Mr Newman spent 61 days in custody before he was released on 22 December 2014.

37. He was 26 years old at the date of the offence. He is now 28.

38. His parents separated when he was 10 years old. He has had limited contact with his father, but he maintains close relationships with his mother and siblings. He resides with his mother, two brothers and fiancé. He and his fiancé are saving for their wedding and to purchase a house. Mr Newman has a two-year-old son from a former relationship. The birth of his son in 2013 was the impetus for him to cease using cannabis. His fiancé gave evidence confirming that the offender has not used cannabis since at least April 2015, when she resumed a close relationship with him. The offender has access to his son each weekend and he is seeking greater access. This is one factor motivating the offender to lead a law-abiding lifestyle.

39. As a child, Mr Newman was a talented gymnast who competed at a high level until 1999 when he sustained a wrist injury.

40. After leaving school in Year 12, Mr Newman undertook a bricklaying apprenticeship and he has been in the same employment since 2005. He is now a site supervisor for a large commercial bricklaying company. He is well regarded by his employer. He supervises up to 15 workers, who work on large projects. He earns a good income.

41. Mr Newman's criminal history relates primarily to drink driving. He committed drink driving offences in 2007, 2011 and 2012. Two other minor matters resulted in fines. There is no criminal history of violence. Since the commission of the subject offences, there has been no further criminal behaviour and the offender has complied with bail conditions.

42. Mr Newman's status vis-à-vis the Rebels motorcycle gang is clearer than that of Mr Reid, but still slightly ambiguous. According to his fiancé, he has had no contact with the organisation since April 2015 and he does not own a motorcycle. However, he has not formally resigned from the organisation. That said, the failure to resign formally (whatever that might entail) has to be seen in the context that bail conditions prevented him from contacting members of the organisation. During the sentencing proceedings, the president and vice-president of the ACT chapter of the Rebels were present at Court and Mr Newman spoke to them for several minutes in an apparently friendly exchange, although the content of the exchange is unknown.

43. The author of the pre-sentence report identified protective factors that support a positive lifestyle in the future including strong family support and stable employment. On the other hand, like Mr Reid, Mr Newman has limited insight into the harm associated with his offending behaviour and there is a lack of clarity concerning his ongoing connection with the Rebels motorcycle gang.

44. In sentencing the offenders, the Court must consider the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Importantly, they include general deterrence. Engaging in violent behaviour in a public place is conduct that warrants a strong message of general deterrence. Particularly in relation to Mr Reid, who has a criminal history of assaults, there is a need for specific deterrence. Sentencing purposes of accountability and denunciation are also important.

45. As far as rehabilitation is concerned, Mr Newman has good prospects of rehabilitation. I am less confident about Mr Reid. Both offenders will need to be supervised very strictly in the community to ensure that they do not continue to associate with the Rebels motorcycle gang or other antisocial elements and they are stabilised in a positive lifestyle.

46. While the offenders' association with the Rebels was integral to the offending conduct, I am not sentencing them for being members of the Rebels. I am sentencing them for what they did in the context of their particular subjective circumstances.

47. I have regard to the factors in s 33 of the Sentencing Act insofar as they are relevant. I have referred to the relevant factors.

48. The offenders' legal representatives conceded that the offending conduct called for some sort of sentence of imprisonment. The real issues were the appropriate length of the sentences and the manner in which the sentences should be served.

49. At proceedings on 16 May 2016, I convicted Mr Newman and indicated that I would impose a 16-month sentence of imprisonment. The starting point for the sentence was 21 months' imprisonment, less 15% for the plea of guilty and a further deduction of two months to take into account time served (at 16 May 2016, Mr Newman had spent approximately two months in full-time custody).

50. On that occasion, I requested an intensive correction order assessment to ascertain Mr Newman's suitability to serve his sentence by intensive correction order. I indicated that I would consider such an order if Mr Newman was assessed as suitable.

51. Section 11 of the Sentencing Act stipulates that the Court may order that a sentence be served by intensive correction in the community if an adult offender is convicted and the Court imposes a sentence of imprisonment. Under s 78 of the Sentencing Act the Court must not make an intensive correction order unless the Court has considered any pre-sentence report and is satisfied, having considered possible alternatives, that the only appropriate sentence is a term of imprisonment of not more than four years. Pursuant to s 78, I have considered Mr Newman's pre-sentence report and possible alternatives, and I have formed the view that the only appropriate sentence is a term of imprisonment of not more than four years.

52. ACT Corrective Services have assessed Mr Newman as suitable for an intensive correction order.

53. I am satisfied of the matters in s 77 of the Sentencing Act.

54. For the offence of assault occasioning actual bodily harm, I make an intensive correction order for a period of 16 months from 19 August 2016 to 18 December 2017. The order is to include the following additional conditions:

(a) the offender is to complete 100 hours of community service within 12 months (community service condition); and

(b) the offender must not knowingly or recklessly communicate by any means whatsoever, whether directly or indirectly, with any member of any outlaw motorcycle gang (non-association order condition).

55. Pursuant to s 23 of the Sentencing Act, I make a non-association order. I am satisfied that it is necessary and reasonable to make the non-association order to assist the offender to manage things that may make the offender more likely to commit further offences if not managed. In this case, that includes contact with members of outlaw motorcycle gangs. The non-association order prohibits the offender from being with or communicating in any way, including electronically, or attempting to do so with the persons named in the document marked Exhibit 3. This order is to be incorporated into the intensive correction order.

56. For the offence of affray, the offender is sentenced to the rising of the Court.

57. At proceedings on 16 May 2016, I convicted Mr Reid and indicated that I would impose a sentence of 23 months' imprisonment that had practical effect from 16 May 2016. The starting point for the sentence was two and a half years' imprisonment. I deducted 15% to arrive at a sentence of two years and one month's imprisonment. I also deducted two months for time already served (as at 16 May 2016), to arrive at a sentence of 23 months' imprisonment.

58. On that date, I requested an intensive correction order assessment for Mr Reid.

59. ACT Corrective Services assessed Mr Reid as suitable for an intensive correction order.

60. In accordance with s 78 of the Sentencing Act, I have considered Mr Reid's presentence report. I am satisfied of the matters in s 77 of the Sentencing Act.

61. For the offence of assault occasioning actual bodily harm, I make an intensive correction order for a period of 20 months from 19 August 2016 to 18 April 2018. The order is to include the following additional conditions:

(a) the offender is to complete 200 hours of community service within 12 months (community service condition); and

(b) the offender must not knowingly or recklessly communicate by any means whatsoever, whether directly or indirectly, with any member of any outlaw motorcycle gang (non-association order condition).

62. Pursuant to s 23 of the Sentencing Act, I make a non-association order. The order prohibits the offender from being with or communicating in any way, including electronically, or attempting to do so with the persons named in the document marked Exhibit 3. This order is to be incorporated into the intensive correction order.

63. For the offence of affray, the offender is sentenced to the rising of the Court.

I certify that the preceding sixty-three [63] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.