The offender appears for sentence in respect of one offence, namely that he:
On or about 30 June 2019 at Manly in the State of New South Wales, while in company with William McManus and Lachlan Foster caused grievous bodily harm to Ryan Davies, being reckless as to causing actual bodily harm to him, contrary to s 35(1) of the Crimes Act, 1900.
It is agreed that the offender entered the plea of guilty on the first day of the trial, namely 3 May 2021. The offender communicated his willingness to enter a plea of guilty on 22 April 2021. Accordingly by virtue of s 25C(2) of the Crimes (Sentencing Procedure) Act the offender is entitled to a discount of 5% for the utilitarian value of the plea.
Mr Price of counsel for the offender in written submissions put matters relating to the plea that were not pressed at the sentence hearing. I understood Mr Price to accept at the sentence hearing that as the matter was subject to s 25C(2) of the Crimes (Sentencing Procedure) Act the offender was entitled to the numerical discount of 5%. However, as I indicated at the sentence hearing the plea assists the offender so far as remorse is concerned.
The maximum penalty for the offence is one of 14 years imprisonment. Parliament has specified a standard non-parole period of 5 years in respect of the offence.
This offender is a co-offender of Lachlan Foster who was sentenced by me to a total sentence of 2 years 9 months imprisonment with a non-parole period of 18 months on 29 October 2020 - see R v Foster [2020] NSWDC 648.
[2]
Facts
The facts are before me by way of agreed facts. For the purpose of proceeding to sentence I am satisfied of the following beyond reasonable doubt.
The offender was one of a group of three young men. The victim is Ryan Davies.
Davies and his girlfriend Amber Blair attended the Bavarian Beir Café located near Manly Wharf at about 6pm on 29 June 2019. At about 7pm they moved to the Manly Wharf Bar and at about 8.15 attended the Shark Bar within the New Brighton Hotel on the Manly Corso.
The victim Davies was in the company of his girlfriend Amber Blair and friends Justin Clarke, Clair Richards, Amy Buening and Caitlin Kerle after leaving the Shark Bar at about 11pm. They then went to the Ivanhoe which is also located on the Manly Corso. At about 1.20 am on 30 June 2019 the group left the Ivanhoe and went to a kebab shop to obtain some food. They stopped and sat on outdoor sculptures eating their food.
At about 1.50am on 30 June 2019 the offender, Lachlan Foster and William McManus were also at the kebab shop and also obtained some food. Each of them went outside and began eating the food with Lachlan Foster ripping off the wrapper of what he was eating and throwing it on the ground. The victim and the group he was with walked in a westerly direction past Foster and Claire Richards who had seen Foster throw the paper on the ground and said to Blair, "Seriously, there is a bin right there" and they continued to walk on.
Nichols, Foster, McManus and Clark engaged in some banter as they continued to walk. Blair said to Nichols' group, "Piss off and eat your kebabs elsewhere, keeping walking and go away" to which they yelled back, "You look like a fucking junkie mate" to Justin Clark. Both groups stopped outside a convenience store on the corner of Sydney Road and Central Avenue.
The two groups started pushing a shoving each other for a short time before Clarke punched McManus in the head with a reasonable degree of force. A brawl then erupted and Nichols raised his right hand hitting Davies to the left side of his face in a forceful manner.
Foster punched Davies to the head with a clenched fist, twice, knocking him to the ground where Davies assumed the foetal position. As he was on the ground he was further assaulted by Foster, Nichols, and McManus. Foster stood over Davies with a left clenched fist, raised his hand behind his head and punched him three times to the face and head area. Foster then kicked Davies three times with force before using his right foot to stomp on his head. While Foster was assaulting Davies, Nichols and McManus kicked Davies several times to his leg area.
Nichols and McManus left the scene but Foster remained behind and exchanged words with Clarke until they were separated by police. Foster declined to be interviewed.
Davies was conveyed by ambulance to Royal North Shore Hospital where he received treatment for significant injuries to his face, spine and left leg. He suffered fractures to his eyebrow, cheek, jaw and two fractures to his left leg. This offender is to be sentenced only in respect of the injuries sustained to the left leg. Specifically, the victim received the following injuries and treatment:
(a) Left tibial eminence fracture and posterolateral tibial plateau fracture. The victim underwent surgery on 2 July 2019 which involved a left knee arthroscopic reduction and fixation of the left tibial eminence with the insertion of four wires with nil complications. Post-surgery management included no weight to be placed on the left limb and for it to remain in extension for four weeks, wound check at two weeks. The wires were removed on 29 July 2019.
The agreed facts note that these injuries are the basis of the count on the indictment to which this offender has pleaded guilty. Other injuries included:
(b) Multiple facial fractures including a displaced fracture or the right side zygomatic arch, displaced fractures of the anterior, lateral and medial wall of the right maxillary sinus, fracture of the lateral pterygoid plate on the right, a blowout fracture of the inferior wall of the right orbit, a fracture of the lateral wall of the right orbit and a non-displaced nasal fracture. Surgery on 4 July 2019 involved open reduction and internal fixation of right zygomatic fracture for right orbital floor fracture which included the insertion of three metal plates with nil complications. Post-surgery management included no nose blowing, scalp staples to be removed on 15 July 2019, use of mouth wash four times per day after meals, soft diet for two weeks and follow up on 12 July 2019; and
(c) Multiple lacerations to the victims face the repair of which included 20 sutures to his left eyebrow, the sutures being removed on 8 July 2019.
The victim was released from hospital on 9 July 2019.
This offender presented himself at Dee Why Police Station on 4 July 2019 in response to a Facebook Media Release appealing to the public for the identity of two of the four male offenders. He participated in an interview in which he advised the following:
1. He identified himself on the CCTV footage from outside the kebab shop;
2. Claimed he had no recollection of the brawl; and
3. Claimed to have never met any of the other offenders depicted on the CCTV footage.
At the sentence hearing counsel for the offender made a number of submissions as to the number of kicks for which this offender was responsible. The facts are silent on that issue and the surveillance CCTV footage was not tendered. In those circumstances I am obliged to deal with the matter on the agreed facts.
[3]
Assessment
As the matter carries a standard non-parole period it is necessary to make some assessment of the objective seriousness of the matter. As has been made clear in a number of authorities, particularly R v Mitchell, R v Gallagher (2007) 177 A Crim R 94 at [27] per Howie J and McCullough v R [2009] NSWCCA 94 at [37] per Howie J that offences such as the matter presently under consideration are result offences and generally the more serious the injuries the more objectively serious the matter will be. Of course, the nature and extent of the assault is also relevant to the assessment of the seriousness.
The Crown in their written submissions has referred the court to the decision of Stevens v R [2017] NSWCCA 216 at [41]-[42]. The judgment of Bellew J does not quite set out the factors that inform the objective seriousness as stated by the author of the Crown's written submissions. Be that as it may it seems that the matters that will inform the objective seriousness of a matter involving the infliction of grievous bodily harm are the nature and extent of the injuries, the nature of the assault including whether there was any premeditation, the duration of the assault, whether there was any degree of provocation and the general surrounding circumstances. Being in company is an element of the offence to which the offender has pleaded guilty. However to my mind the number of persons in whose company the offender was at the time of the assault would also be relevant.
The co-offender Foster was sentenced on the basis of all the injuries inflicted on the victim and not just those sustained to the victim's left leg as is the case with the case presently under consideration. Further, in Foster I found (at [23]ff) that a complicating feature was the ADHD suffered by that offender. This offender has also been diagnosed with ADHD.
However, I note that Mr Bradley Jones, Psychologist in his report of 28 April 2020 (item 2, exhibit 1) opines at paragraph 29:
"Assessment of Mr Nichols' identified symptoms of an attention deficit disorder that was later supported by psychiatric assessment. When reviewing the assessment testing material the diagnostic information of Dr Kasinathan, and the police documents it is reasonable to posit Mr Nichols' offending is likely to be a combination of his ADD/HD symptoms and his alcohol ingestion. Whilst it might be posited his significant alcohol ingestion may have occurred as a result of inattention (ADD) and his offending may have had some aspect of impulsivity (AD/HD) his alcohol consumption cannot be discounted as the most significant contributor to his offending behaviour."
In the matter presently under consideration I am of the opinion that the material relating to the offender's ADHD is not near as significant as it was with the co-offender Foster. In those circumstances while the ADHD impacts on the moral culpability it does not in my view have any meaningful work to do in the assessment of the objective seriousness of the matter.
The Crown submits that the injuries are within the mid-range of injuries contemplated by the expressions grievous bodily harm. The Crown goes on to submit that the matter is as I understand the submission to be within the mid-range. Counsel for the offender submits the offending is at the low range of seriousness and "well below the lower end of the mid-range" which was the finding I made in the matter of Foster.
In the matter presently under consideration while there was some degree of provocation given that the initial punch was thrown by Clarke, there was simply no justification for the continuation of the attack once the victim was on the ground. The assault was sustained and it involved kicking the victim who was in a vulnerable position on the ground. For more abundant caution I am not finding that the victim was a vulnerable victim for the purposes of s 21A(2)(l) of the Sentencing Act - I am finding that he was in a vulnerable position on the ground. There were multiple kicks and the injuries are plainly set out earlier in these remarks. The offender on the facts before me was in the company of two others, who again on the facts before me took a very active role in the assault on the victim.
The Crown in a number of places within the submissions uses the expression that the assault was unprovoked, uncalled for and unjustified. The initial part of the assault involving the punch was not unprovoked. However, what followed was to my mind uncalled for and unjustified. The victim presented no further threat while in the foetal position on the ground.
As I observed in my reasons in R v Foster there is no material from which I am able to make any finding as to whether the victim suffers any ongoing issues or sequelae as a result of his injuries. As I also observed in my reasons in Foster (at [27]) I must proceed on the basis that I cannot be satisfied beyond reasonable doubt that there are any such issues. I made this point clear during the sentence hearing.
In all of the circumstances noting what I have said and noting in particular that this offender is to be sentenced only in respect of the injuries to the victim's leg this matter is below the mid-range of seriousness but neither to a slight nor a significant extent.
[4]
General Deterrence
The impact of general deterrence in this matter is moderated to some limited extent because of the offender's ADHD. Again I conclude on the totality of the material before me that the ADHD does not have the same impact on the matter, including the impact of general deterrence as it did in Foster.
General deterrence has work to do in this matter. As I observed in Foster at [35]:
"Although dealing with different and more serious offending the Court (Bathurst CJ, Johnson & Hulme JJ) in R v Loveridge (2014) 243 A Crim R 31 said at [102]-[104]:
'[102] In the context of a case of assault occasioning actual bodily harm, in which the drunken offender punched the victim in the face without warning or reason when the victim was standing outside a city nightclub in 2010, Hoeben CJ at CL (McCallum and Schmidt JJ agreeing) said in Pattalis v R at [23]:
"Over recent years, the incidence of such offences, particularly when associated with the excessive consumption of alcohol, have been all too frequent. Such offences are a cause for grave disquiet and the community is understandably angry and frustrated at their occurrence. Regrettably, it is now notorious (as his Honour recognised) that a single punch can not only cause catastrophic injuries but also death. For offences of this kind, the community has the rightful expectation that judicial officers will impose meaningful penalties."
[103] Other decisions of this Court have emphasised that violence on the streets, especially by young men in company and under the influence of alcohol and drugs, is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence: R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at 101 [29]. Even in the case of juvenile offenders (which the Respondent is not), this Court has emphasised that, in relation to crimes of violence committed in the streets by groups of young persons, general deterrence should be given substantial weight notwithstanding the youth of the offenders: AI v R [2011] NSWCCA 95 at [69]; MB v R [2013] NSWCCA 254 at [27].
[104] This Court has emphasised that the principles of general deterrence and denunciation of crimes serve as a means of protection of the public: R v AEM [2002] NSWCCA 58 at [92].'"
Those observations are equally apposite in the matter presently under consideration noting that this matter involves violence in the streets by young men in company and under the influence of alcohol.
Noting the matters on the offender's criminal history there is also an aspect of specific deterrence. However, given the substantial advances the offender has made so far as rehabilitation is concerned the issue of specific deterrence does not have a great deal of work to do.
[5]
Criminal History
The offender was born on 12 October 1995 and accordingly was 23 at the time of the offending and is just 26 at the time of sentence. On 30 March 2015 he was dealt with conditionally without conviction for Excluded Person Re-Enter (or Attempt to Re Enter) Premises. On its own that matter would be of no consequence.
However, of greater significance is that on 29 March 2017 the offender was convicted at the Downing Centre Local Court of Assault Occasioning Actual Bodily Harm, Common Assault and Affray. He was placed on bonds to be of good behaviour pursuant to s 9 of the Crimes (Sentencing Procedure) Act, as it was at the time and fined a total of $650. The Crown has included the facts in respect of those matters in the Crown tender bundle. Suffice it to say that those matters also involved violence on the streets while the offender was heavily intoxicated with alcohol. Indeed it involved a substantial over-reaction to being punched. I understood counsel for the offender to put in the course of oral submissions that the circumstances of that matter and the present were almost identical.
In the circumstances, although the criminal history of the offender is not extensive but noting the 2017 matters contained on that record, I am of the opinion that the offender's record is one that does not entitle him to any particular leniency. I note the bonds had expired approximately three months before the offending for which the offender appears for sentence.
[6]
Subjective Case
There was no oral evidence called from or on behalf of the offender. Mr Price of counsel indicated - at least as I understood the submission - that was because the offender had no independent recollection of the incident and relies on the CCTV footage and what he has been told.
Counsel for the offender tendered a letter of apology from the offender, which became item 7 of exhibit 1 on sentence. I note that despite various authorities over the years from the Court of Criminal Appeal those who appear for offenders persist in tendering such letters. The Crown in their written submissions refers the court to the comments of Bellew J in Lai v R [2021] NSWCCA 217, where his Honour said at [79]-[80]:
"Finally, as I have noted, both the applicant and Wu chose to tender, in their respective cases on sentence, a statement to the sentencing judge. Each did so in the absence of giving sworn evidence. In circumstances where such a practice appears to be increasingly adopted in sentence proceedings in the District Court, it is timely to reiterate the observations of Whealy J (as his Honour then was) in R v Elfar: [87]
'The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports - R v Palu. In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so.'
Those observations have since been consistently reiterated by this Court. There is, in my view, no utility in adopting the practice of tendering a statement in the absence of sworn evidence, in circumstances where this Court has made it abundantly clear that little or no weight should be attached to its contents. It follows that in my view, such a practice is to be strongly discouraged."
I also note the comments by Wilson J (specifically endorsed by Hulme J in his brief additional comments) in Imbornone v R [2017] NSWCCA 144 at [57].
Counsel for the offender also tendered a letter from the offender to the victim in which he apologises for his actions, says that he is deeply sorry for what occurred and that he has changed his life since the incident. Counsel also referred to what the offender told Mr Jones, the psychologist as set out at paragraph 9 of the report of 28 April 2020, namely,
"With respect of his feelings regarding his offending behaviour, Mr Nichols stated, 'I feel really, really guilty. I am disappointing myself and my mum. I had started to get my life together and ruined it in one night. I feel very bad for the victim. I know the injuries he has and I would never want that to happen to anyone".
However, there is also the Sentence Assessment Report in which it is recorded at page 2:
The offender minimises his offending, noting that in his opinion the footage doesn't match up to what he was charged with;
Whilst Mr Nichols states his opinion the charges are excessive, he does acknowledge that he needs to face the consequences from what he was involved in and he should have just walked away or ignored the other group to avoid a fight breaking out; and
Whilst Mr Nichols admits that his group of associates caused serious harm to the victim, he believes that he was not involved in the worst of it and point out that the fighting went both ways.
It was put quite strongly by counsel for the offender that I find that the offender is remorseful. It appears from the Crown's written submissions (MFI 1 on sentence) that the Crown opposes such a finding. The offender pleaded guilty late but the offender has no independent recollection of the events. The SAR does not sit well with the letter from the offender. However that letter is more comprehensive than most of that type of letter that regrettably I see all too often. There is the letter to the victim. Further, there was the co-operation of the offender in attending the police station and identifying himself from the CCTV footage.
Given the material before me, noting that the offender did not give evidence, I am prepared to find on balance that the offender is remorseful. However, noting in particular that there was no evidence from the offender I am not prepared to give that finding the weight that I would if the expressions of remorse had been tested in evidence. However the issue of remorse does achieve some weight.
I now return to the reports of Mr Jones, the psychologist and I go initially to item 2 of exhibit 1 the report of 28 April 2020. At paragraph 5 it is noted that the offender admitted the offending but reported he had no independent memory of the offending behaviour relying on what he had been told and the CCTV footage. I have earlier set out the offender's expression of remorse to the author.
The offender told the author of the report that his childhood was a relatively enjoyable time, although the offender has no relationship with his natural father who drank alcohol and used illicit substances and left when the offender was 11. There was no history of trauma but the offender recalled hiding under the bed during arguments between his parents.
The offender reported that he was a "below academically average student with disruptive behaviour who was suspended for swearing and fighting". He has completed a Plumbing Trade Certificate and has always been employed since he was in Year 11. He completed Year 12.
According to the report the offender began to use alcohol at the age of 17 and his use increased. After being charged with the matters in 2017 he decreased his intake of alcohol.
At paragraph 22 of the report Mr Jones reports that on mental status examination the offender was "…generally reactive and his mood was euthymic. There was no evidence of sensory, perceptual and more significant cognitive impairment was noted. Mr Jones opines that the offender's cognitive functioning was in the average range".
Further, at the time of the assessment by Mr Jones the offender was experiencing mild levels of anxiety and depression. Mr Jones went on to opine (paragraph 24) that the assessment indicated symptoms consistent with an attention deficit/hyperactivity disorder, specifically inattention and impulsivity to respond to external cues in his environment. The offender was referred to Dr Jonathon Kasinathan, psychiatrist for psychiatric evaluation. I have extracted the contents of paragraph 29 of the report earlier in these reasons.
[7]
General Remarks
I must give proper regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:
1. to ensure that the offender is adequately punished for the offence,
2. to prevent crime by deterring the offender and other persons from committing similar offences,
3. to protect the community from the offender,
4. to promote the rehabilitation of the offender,
5. to make the offender accountable for his or her actions,
6. to denounce the conduct of the offender, and
7. to recognise the harm done to the victim of the crime and the community.
Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalty provided, the offending including the injuries and the need for general deterrence (although moderated in this case), I am firmly of the opinion that a sentence of imprisonment is the only appropriate sentence.
The Crown argues in their written submissions that a sentence of imprisonment is the only appropriate sentence to be imposed in this matter. Mr Price, counsel for the offender submitted at p 10 of his written submissions that this matter does not cross the threshold in s 5 of the Sentencing Act. I understood counsel not to pursue that argument at the sentence hearing. In any event, given the offending, the injuries, the issue of general deterrence (which is moderated to a limited extent in this matter), the maximum penalty provided and the standard non-parole period I am firmly of the opinion that there must be a sentence of imprisonment imposed in this matter.
The principle of parity has some work to do in this matter. The co-offender Foster was five years younger than this offender and indeed was 18 at the time of the offending. The impact of the ADHD was more significant with the co-offender and for reasons given in that matter impacted on an assessment of the seriousness of the matter. However Foster was sentenced on the basis of all of the injuries sustained by the victim were relevant to the sentence to be imposed. Foster had a record as a juvenile, which was ignored given the decision in Dungay v R [2020] NSWCCA 209.
In the matter presently under consideration the offender has a record that I have found does not entitle him to any particular leniency. He is some few years older than Foster. The ADHD does not achieve the same significance but it must be acknowledged that this offender has a strong subjective case. Significantly, this offender is being sentenced on the basis that it is only the injuries to the leg of the victim are relevant to the sentence.
It is that last matter that is of particular significance. The facial and head injuries sustained by the victim were substantial and required separate surgical procedures. In those circumstances the starting point for this offender must be less than for Foster. However, I emphasise the words "starting point". Foster entered an early plea and received the full 25% discount for the utilitarian value of the plea of guilty.
The next issue to be determined is the length of the sentence. Mr Price argued that in all of the circumstances the sentence could be two years or less and the sentence should be served by way of Intensive Correction Order. I note that the SAR indicates that the offender is willing to undertake community service and that he is suitable for that work.
As I indicated at the sentence hearing I undertook a review of the authorities relating to Intensive Correction Order in R v Elphick [2021] NSWDC 1. The approach was approved of by the Court of Criminal Appeal in Elphick v R [2021] NSWCCA 167 per Adamson J (Basten JA, Walton J agreeing) at [26]-[27]. In particular I note the decision of Karout v R [2019] NSWCCA 253 and what was said by Fullerton J at [94] of that decision namely:
"The fact that his Honour made positive findings as to the applicant's good prospects of rehabilitation and that he was unlikely to reoffend, findings which might, in addition to a finding of special circumstances, have supported the exercise of the power in s 66 for the making of an ICO, did not dictate that an ICO was the appropriate sentencing outcome. Consistent with the obligation in s 66(3) that his Honour also take into consideration the purposes of sentencing in s 3A of the Sentencing Act and any relevant common law sentencing principles, it is clear that in declining to make an ICO the objective seriousness of the applicant's offending and the principles of general deterrence (being amongst the mandatory considerations his Honour was obliged to consider under s 66(3) in deciding whether the power to make the ICO should be exercised) overwhelmed other considerations that were in play."
Between the sentence hearing and the passing of sentence the Court of Appeal handed down the decision of Quinn v DPP (Cth) [2021] NSWCA 294. In the matter presently under consideration the offending and the need for general deterrence even though moderated to some extent requires that there be a sentence of full time custody even if the sentence was two years or less.
Further on this aspect, the Crown submitted that the issue with the submission that any sentence should be served by way of Intensive Correction Order was getting the sentence to two years or less. That submission in my view was correct.
I note, although I will not repeat, the review of the authorities and statistics I undertook in R v Foster at [80]ff. The parties in this matter are well aware of that matter noting that the judgment forms part of the Crown tender bundle.
In all of the circumstances I am of the opinion that the appropriate starting point for the sentence in this matter is 2 years 9 months (33 months) from which is deducted 5% for the utilitarian value of the plea. That produces a total sentence of 2 years 7 months (31 months). On the issue of parity I note that had Foster been afforded a 5% discount rather than the 25% discount he received the total sentence in that matter would have been 3 years 6 months.
I understand that there is no pre-sentence custody.
There should be a generous finding of special circumstances in this matter noting the age of the offender, this is his first time in custody, and the need for an extended period of supervision to ensure that he properly reintegrates into the community and does not relapse into abusing alcohol.
[8]
Orders
In respect of the offence to which the offender pleaded guilty, he is convicted.
The offender is sentenced to a non-parole period of 1 year 5 months to commence on 10 December 2021 and which will expire on 9 May 2023. The balance of term of 1 year 2 months (14 months) will commence on 10 May 2023 and will expire on 9 July 2024.
The non-parole period is approximately 55% of the total sentence which indicates a substantial finding of special circumstances the reasons for which are set out at [83] of these reasons.
The offender is to be released to statutory parole at the expiration of the non-parole period.
[9]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 10 December 2021
Mr Jones opines at paragraph 31 of the report that the offender is in the low risk category for committing general offences relative to other offenders and presents a low risk of engaging in violent or sexual violent behaviour. A treatment plan was developed.
In order to reduce the offender's risk of recidivism Mr Jones opines that it would be in the offender's (and the community's interests) for him to obtain further treatment in anger management, alcohol abuse counselling, psychiatric medication (dexamphetamine) as prescribed by Dr Kasinathan, psychotherapy to address impulsiveness and monitoring by Community Corrections.
There is also a brief update report from Mr Jones, item 3 of exhibit 1 dated 9 November 2021. That report notes that the offender has a new relationship with Ms Jessica Fedrigo, that appears to be a very positive relationship, they are living together and there two property mortgages. The report notes full time employment and that he has reduced his alcohol consumption to one glass of wine on the weekend. The report also sets out that the offender has attended psychological treatment sessions. Mr Jones concludes the later report by giving the opinion that the offender met all of the treatment recommendations in his earlier report.
There are two very brief reports dated 15 January 2020 and 27 October 2021 from Dr Kasinathan, psychiatrist, which became items 5 and 6 of exhibit 1 respectively. The earlier report says simply that "diagnostically Michael has likely ADHD and alcohol use disorder (in remission). In the later report Dr Kasinathan says, "Diagnostically Michael clearly has ADHD and alcohol use disorder in remission".
While I accept that the offender suffers from ADHD for reasons given earlier within these reasons I am not prepared to find that it is to the extent that it impacts on the finding of objective seriousness. It does however, to some extent, but not a particularly significant extent impact on the offender's moral culpability. The issue remains that the offender was heavily intoxicated with alcohol at the time of the offending. The ADHD does also reduce - but again not to any significant extent - the impact of general deterrence on this sentencing exercise.
Exhibit 2 Is a letter dated 19 November 2021 from Jacob McGaulley, Director of Concept Plumbing, the offender's employer. The reference clearly sets out that the offender has a good work ethic and is very able at his work. The offender's work requires him to liaise directly with site managers and to guide apprentices. The offender is a valued member of the team.
There is a letter from Ms Fedrigo, which became item 9 of exhibit 1. She and the offender have purchased a home and an investment property, both of which have mortgages that require servicing. Clearly enough, the offender has a good work ethic. Ms Fedrigo says that the offender is very supportive of her. She maintains that she would not be able to survive or continue her career path without him. They have a pet dog of which they are both obviously fond and live a quiet and fulfilling life.
Items 8 and 9 of exhibit 1 are letters from the offender's brother and mother respectively. The letter from his mother confirms that the offender and Ms Fedrigo have a home and an investment property. Ms Nichols also says that the offender realises that he must not place himself and his family in this position again. The offender assumed responsibility towards his family after the offender's parents separated. She also speaks of the remorse felt by the offender. Mason Nichols says that the offender has assisted financially and emotionally and also speaks of the remorse felt by the offender.
The offender has completed an anger management course and an online emotional intelligence course.
Given the substantial efforts the offender has already undertaken, the fact of his very positive relationship with Ms Fedrigo, the facts of his employment, and the completion of the courses I am prepared to find on balance that the offender is unlikely to re-offend.
As I understood the Crown's submission the position of the Crown is that I would not be able to find on balance that the offender is unlikely to re-offend. The offender has clearly done something very positive about his intake of alcohol and he has taken the other steps mentioned in the paragraph immediately above. With some minor hesitation I am prepared to find on balance that the offender is unlikely to re-offend.
Mr Price, counsel for the offender puts in his written submissions that this matter could have been dealt with in the Local Court and the sentence would "have been capped at the statutory maximum of 2 years full time custody". The two years is a jurisdictional limit and not a maximum penalty reserved for a worse category type case - see Doan v R (2000) 50 NSWLR 115; Greaves v R [2020] NSWCCA 140 at [66] and more recently the decision of the High Court in Park v The Queen [2021] HCA 37 at [23]ff.
In any event, noting the offending I am firmly of the opinion that this is a matter that is appropriately dealt with on indictment. In that regard I note the sentence imposed on the co-offender Foster. On this issue Johnson J in Zrieka v R (2012) 223 A Crim R 460 at [109] said:
"Unless this Court is able to clearly determine that the offence in question, committed by the particular offender with his or her criminal history, ought to have remained in the Local Court, then the argument is theoretical at best. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice: Wise v R [2006] NSWCCA 264 at [31]; R v Cage [2006] NSWCCA 304 at [31]; Edwards v R at [47]; McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 561-562 [62]-[67]."
Further on this aspect, the sentence imposed on the co-offender Foster is indication enough why the matter should be dealt with on indictment.
In written submissions which were amplified in oral submissions Mr Price for the offender put that the offender has been subject to onerous bail conditions and accordingly some consideration should be extended to the offender. The Crown submitted, correctly in my view that the offender was not subject to onerous bail conditions.
In the course of the sentence hearing I had my Associate print off the Justice Link record of the conditions. The bail conditions to which the offender was subject at the time of the sentence hearing was a residential condition (with which it appears he is not complying), a condition that he not enter the CBD of Manly, that he not assault, molest, harass, intimidate or stalk the victim and that he be of good behaviour. It appears that earlier there may have been a reporting condition.
I am not of the opinion that any of the bail conditions to which the offender was subject amount to onerous bail conditions. It follows that no consideration is extended to the offender by reason of those bail conditions.
I have already indicated that the offender was 23 at the time of the offending. He is still entitled to some but not substantial consideration for his youth. I note in particular the decisions of Locke v R (2009) 207 A Crim R 34 at [41]-[49]. However, the consideration will not be as great as for the co-offender who was 18 at the time of offending.
In his written submissions and from memory also oral submissions Mr Price put that the offender was entitled to some consideration for co-operation with the authorities given that he attended the police station entered into an interview and identified himself from CCTV footage. I understood counsel to submit that the consideration would take the form of a reduction in the total sentence as part of the process of determining the appropriate sentence by the process of instinctive synthesis. The offender was no doubt made aware of his rights and entered into a record of interview. The CCTV footage is objective evidence. I have taken the co-operation in to account on the aspect of remorse. I am not prepared to make any further allowance for what is referred to as the co-operation by the offender.
The COVID 19 pandemic is also addressed in counsel's written submissions. That is an issue that is applicable to any sentence matter, particularly one in which full time custody is a live issue. I take the issue of the pandemic into account in accordance with authorities such as Valentine v R [2020] NSWCCA 116; Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204. If it is not already plain from what I have already said, I find on balance that the offender has good prospects of rehabilitation.