R v O'Sullivan, R v O'Sullivan, R v Bennett

District Court of NSW|2019-09-13

Solicitors: A Hooper (Crown) S Rashidi (Bennett) T Tupou (Ma'amaloa O'Sullivan) File Number(s): 2018/00163292 - R v Solomen O'Sullivan2018/00166601 - R v Brandon Lee Bennett2018/00166653 - R v Ma'amoloa O'Sullivan

SENTENCE

HIS HONOUR: The three offenders are to be sentenced for certain offences which arose out of a single incident that occurred on 20 May 2018 in Windsor. Solomen O'Sullivan is to be sentenced for the following two offences that he was found guilty of after trial by jury. The first is that on 20 May 2018 he wounded Christopher Strauff with intent to cause him grievous bodily harm. That is an offence under s 33(1)(a) of the Crimes Act. The second offence is that on 20 May 2018 he wounded Andrew Krah with intent to cause grievous bodily harm which is also an offence under the same provision.
Solomen O'Sullivan pleaded guilty prior to the trial commencing to an offence that he used unlawful violence against Andrew Krah, Christopher Strauff and Jarrod Moeckel by conduct such that a person of reasonable firmness if present at the scene would have feared for their safety. That is an offence of affray under s 93C(1) of the Crimes Act.
Ma'amoloa O'Sullivan is to be sentenced for the following offence for which he was found guilty by a jury after trial: that on 20 May 2018 he wounded Christopher Strauff with intent to cause him grievous bodily harm. He too pleaded guilty to an offence of affray in the same terms as his brother Solomen O'Sullivan had done.

Facts

I turn then to the facts of the offences. These being sentence proceedings after trial I am required to find the facts upon which the offenders are to be sentenced consistent with the verdicts returned by the jury. To the extent that I find facts adverse to the offenders I must be able to find those facts proved beyond reasonable doubt. I note in that regard there are no agreed facts before me concerning the affray offence to which the two O'Sullivans pleaded guilty and, as I understand it, I should make findings of fact in relation to that offence consistent with the evidence led at the trial, which I accept.
I find the following facts beyond reasonable doubt consistent with the jury's verdicts. During the day and evening on 19 May 2018 the victims Mr Krah and Mr Strauff had consumed a considerable quantity of alcohol over many hours. They at one point had met up with a friend of Mr Strauff's called Jarrod Moeckel who also consumed a large amount of alcohol that night. At around 12.45am the following day Mr Strauff's wife received a call from his sister, who was working at one of the bars where the men had been drinking, and was asked to come and collect Mr Strauff because he had had too much to drink. Mrs Strauff then drove to where Mr Strauff and Mr Krah were, which was near the Westpac Bank in Richmond.
When Mrs Strauff arrived Mr Moeckel, whom she did not know, was also there with Mr Strauff and Mr Krah. The men asked Mrs Strauff to drive them to the nearby McDonald's outlet which she did. When they were in the McDonald's car park there was an altercation between Mr Strauff and Mr Krah and Mr Krah was punched very forcefully by Mr Strauff to the face causing him to fall to the ground. The force of the strike can clearly be seen in the video of that incident that was before the jury. The blow knocked Mr Krah unconscious and he claimed to have essentially no memory of that part of the evening when he gave evidence before the jury.
Mrs Strauff, who was a nurse, proceeded to take Mr Krah to the hospital at Windsor in her car. In her car were also Mr Strauff and Mr Moeckel. Mrs Strauff drove as far as McQuade Park which is approximately 300 metres from the 7‑Eleven service station which is the location where the offences occurred. Mr Krah, who it seems did not fully understand what was happening, did not want to go to the hospital and threatened to jump out of the moving vehicle. Mrs Strauff pulled over just past where the 7‑Eleven service station was located. When she did so Mr Krah jumped out of the car and ran off. Mrs Strauff then with Mr Strauff and Mr Moeckel drove around looking for Mr Krah and found him just past the 7‑Eleven service station where he was kneeling on the ground with one hand clutching the left side of his face, and blood was dripping from that area of his body and he appeared to be very confused.
The evidence establishes that by the time Mr Strauff and the others had found Mr Krah he had already been wounded by Solomen O'Sullivan. In that regard the CCTV footage from the 7‑Eleven service station shows the following: shortly after Mr Krah arrived at the 7‑Eleven store on foot he moved out of the camera range and towards the area of the exit having washed his face and upper body near the bowser area. Within a short time of him doing so a green Commodore arrived at the service station. It was driven by Solomen O'Sullivan's wife and in that car were Solomen O'Sullivan, Ma'amoloa O'Sullivan and Brandon Bennett. Solomen O'Sullivan got out of the car and had a bottle in his hand and emptied the bottle's contents onto the ground and walked towards the area of the service station where Krah had moved to. After a short period of time Ma'amoloa O'Sullivan and Mr Bennett also left the vehicle and followed Solomen O'Sullivan. Solomen O'Sullivan and Mr Krah exchanged words and Solomen O'Sullivan then struck Mr Krah with the bottle he had carried from the car. The actual wounding of Mr Krah is not captured on the CCTV footage but I am satisfied beyond reasonable doubt, consistent with the jury's verdict, that it was Solomen O'Sullivan who struck Mr Krah with the bottle and caused the wounds to him when the bottle smashed.
In that regard I note and accept the evidence that when Mr Krah was spoken to by Mrs Strauff he had blood on his face and said words to the effect of "They glassed me or they bottled me". I also accept the evidence of Mr Krah that when he woke up at the 7‑Eleven service station he had pain to the left side of his face, and a large man was standing over him, that evidence being consistent with the description of Solomen O'Sullivan and what can be seen in the CCTV footage. There was also evidence from a Mr Kasula, the console operator from the service station, who said that he observed a person, who was clearly Mr Krah, talking to a large man who came out of the Commodore and that they suddenly commenced fighting. That evidence is also consistent with what can be seen on the CCTV, and with it being Solomen O'Sullivan who struck Mr Krah.
Shortly after Mr Krah was wounded by Solomen O'Sullivan, Mrs Strauff, Christopher Strauff and Jarrod Moeckel arrived at the service station. Solomen O'Sullivan returned to the vehicle and obtained another bottle and then approached where the two Strauffs, Mr Moeckel and Mr Krah were. The offender Mr Bennett and Ma'amoloa O'Sullivan both returned to the vehicle and obtained bottles before returning to the area where Christopher Strauff, Mr Moeckel and Mr Krah were.
A physical altercation then took place between the groups. Part of it is what is captured on the CCTV footage and phone footage that was before the jury. From what I can discern from that footage, and consistent with other evidence that was before the jury, at one point Solomen O'Sullivan punched Christopher Strauff and a number of blows were exchanged between them. At one point Mr Strauff fell to the ground at least once and at another Mr Strauff head butted Solomen O'Sullivan.
During the altercation and after the head butt Ma'amoloa O'Sullivan smashed a bottle on the ground and struck Mr Strauff with it. I am satisfied beyond reasonable doubt when I have regard to the evidence of Mrs Strauff and Mr Krah, as to the description of the man who struck Mr Strauff with a piece of a bottle, that it was Ma'amoloa O'Sullivan who smashed a bottle onto the ground and struck Christopher Strauff to the back of the head behind his ear. That caused Mr Strauff to fall to the ground again. I am satisfied that it was that action which caused the wounds to Mr Strauff. While on the ground Mr Strauff was kicked by Ma'amoloa O'Sullivan. Jarrod Moeckel lay across Mr Strauff while he was on the ground in order to protect him from the offenders. Shortly after that the altercation broke up.
An ambulance took Mr Krah to hospital and Mrs Strauff took her husband to hospital. The three offenders drove away from the 7‑Eleven service station in the vehicle driven by Solomen O'Sullivan's wife. Given the admissions made by the offender Mr Bennett in his record of interview and to Matthew O'Sullivan the morning after the incident as to arming himself with a bottle and engaging in a fight that night, he was part of a joint criminal enterprise to wound Mr Strauff with intent to cause grievous bodily harm and was involved in the affray.
There is nothing in the closed‑circuit TV footage or the phone footage or the descriptions given by the civilian witnesses of what the various actors did that night, however, which allows me to find beyond reasonable doubt that the offender Mr Bennett actually physically struck Mr Strauff with a bottle. While there was evidence from Matthew O'Sullivan in the trial that the offender Bennett had said to him shortly after the incident, "I think I stabbed that guy", that is an insufficient basis to find beyond reasonable doubt that the offender Mr Bennett did in fact stab Mr Strauff when regard is had to the evidence of the civilian witnesses and what can be seen in the CCTV and phone footage. The offender Mr Bennett was clearly part of the joint criminal enterprise and participated in it by going with the two O'Sullivans towards where Mr Strauff was while armed with a bottle, standing close at times to Mr Strauff and being in a position to assist the others if needed. However, I cannot find that he struck Mr Strauff with the bottle that he had.
In relation to the affray count, the offender Mr Bennett was involved in engaging in unlawful violence towards the three victims by engaging in the fight that occurred in the way I have described. In relation to the affray I accept Mrs Strauff's evidence that another larger Islander male threw a punch at Christopher Strauff which did not connect, and that Mr Moeckel ended up fighting with that male person.
I am satisfied beyond reasonable doubt that the other large male was in fact the offender Mr Bennett. The evidence of the incident generally shows that both O'Sullivans were involved in the affray that took place at the service station that night, and used punches, kicks and striking with glass bottles during the course of the affray. The affray was committed in a public place being the 7‑Eleven service station, and there were a number of members of the public in the vicinity.
Solomen O'Sullivan engaged in an interview with the police on 24 May 2018 but said he could not really remember that evening because he had been drinking. The offender Mr Bennett participated in a record of interview with the police on 28 May 2018 in which he claimed essentially to have no recollection of the evening due to his intoxicated state. Ma'amoloa O'Sullivan engaged in a record of interview with the police on 28 May 2018. He said he had been asleep in the back of the car and woke to see Solomen O'Sullivan face to face with another person. That assertion is refuted by the CCTV footage. He admitted in the interview to kicking Mr Strauff at one point and to having a bottle in his hand but said he had thrown it away and that he had not used it to strike anyone.
The medical evidence was to the effect that glass was found in Mr Krah's wounds. He was also found to have multiple small lacerations on his face and head and a laceration under the left eye. There were three deep lacerations, one over the left temple around the margin of his orbit, one below the left eye and one through the left upper lip. The cheek laceration was down to the bone, it had multiple fragments of glass within it which were pulled out of the wound and the wound was closed in layers of suturing. In terms of the injuries to Christopher Strauff he suffered three deep cuts amounting to wounds, each two to 3 centimetres at the back of his head. The wounds required suturing. The wounds and injuries to Mr Strauff and Mr Krah were significant but there is no evidence that they were life threatening or that long term scarring was suffered.

Assessment of Objective Seriousness

I turn then to my assessment of the objective seriousness of the offences. The offence by Solomen O'Sullivan of wounding Andrew Krah with intent to cause grievous bodily harm, which was count 4 on the indictment, is a serious example of an offence of its type. It was one though that did not have any real planning associated with it and should be seen as relatively spontaneous. A glass bottle was used as a weapon.
The attack upon Mr Krah was unprovoked and he was a stranger to the offender. Mr Krah at no point can be seen in the CCTV footage to approach the car in which the offender arrives at the service station. The injuries suffered were not insignificant and involved wounds to the face. I consider the objective seriousness of this offence to be a little below a notional midrange offence and clearly not at the bottom of the range.
The liability of the three offenders for the offence of wounding Christopher Strauff with intent to cause grievous bodily harm is on the basis that they were party to a joint criminal enterprise to do so. While each participant in a joint criminal enterprise is equally responsible for all the acts in the course of carrying out the enterprise by whomsoever they are committed, a particular participant's level of culpability is to be assessed by reference to the conduct of that particular participant.
While the offenders involved themselves in a joint criminal enterprise in committing count 3, it was a spontaneous criminal enterprise which was entered into implicitly as events quickly unfolded at the 7‑Eleven service station that night. In relation to Ma'amoloa O'Sullivan, he was the person who actually struck Mr Strauff with a broken bottle in the area behind his head and inflicted the wounds. The area that was struck, being the back of the head, is a vulnerable part of the body. There is no suggestion that Mr Strauff was himself armed with any implement. The other two offenders were also armed with bottles although I am not able to find beyond reasonable doubt that they struck Mr Strauff with them.
In accordance with the factual findings I have made, Solomen O'Sullivan approached Mr Strauff with a bottle and threw a punch at Mr Strauff and they exchanged blows and Mr Strauff head butted Solomen O'Sullivan. During the altercation Mr Strauff was knocked to the ground. Mr Strauff suffered significant wounds to the back of his head.
In relation to Ma'amoloa O'Sullivan I consider that the offence in terms of its objective seriousness is a little below a notional midrange offence. Similarly, in relation to the offence by Solomen O'Sullivan on Mr Strauff, although noting that he was not the person who actually perpetrated the wound on my findings.
The level of objective seriousness of the affray offence is below a notional midrange offence noting that much of the conduct involved in the affray was encompassed in the commission of the other offences, although there were three victims and the offence occurred in a public place and there were other members of the public exposed to it.
I will assess the objective seriousness of Mr Bennett's offences after I have reviewed the evidence concerning his mental health and intellectual abilities as those matters may impact upon my assessment of the objective seriousness of his offences.

Subjective cases of each offender

I turn then to the respective subjective cases for each of the three offenders. In doing so I note that none of the offenders gave or called evidence on sentence.

Solomen O'Sullivan

I will commence with the subjective case of Solomen O'Sullivan. Solomen O'Sullivan's is currently 25 years of age and he was 24 as at the time of the offences.
The Crown accepted that s 15 of the Children (Criminal Proceedings) Act resulted in the inadmissibility of his criminal record as a juvenile, and I have had no regard to it on sentence. His criminal record as an adult contains two traffic related offences committed in 2013 for which he received a combination of a bond and a fine. His limited criminal record entitles him to some leniency in this sentence. In terms of his period in custody as a consequence of the commission of the offences he was bail refused between 24 May 2018 to 8 October 2018, being a period of 138 days. He has also been in custody since the return of the jury's verdicts on 12 June 2019. The sentence that I will impose will be backdated to take account of the time he has spent in custody prior to being sentenced. I will backdate his sentence by 253 days.
There is before me a sentence assessment report and a psychological report dated 4 September 2019 under the hand of Tatyana Leist, a forensic psychologist, concerning Solomen O'Sullivan. There are also before me a number of testimonials from family members and friends of the offender. The following is drawn from those two reports and the testimonials.
In terms of his family background, Solomen O'Sullivan reported to the author of the sentence assessment report that he recalled an antisocial upbringing in which he witnessed and was the victim of emotional abuse, and recollected being evicted from the family on a number of occasions due to his parents' intoxicated behaviour. He stated that as a way of avoiding his home environment he would associate with negative peers and engage in risk taking behaviour. He gave a similar description of his early family life to the psychologist. He told the psychologist that due to conflict in the family home from the age of 11 he spent time at the home of friends and at 16 he left home for three years.
The psychologist expressed the opinion that the offender's early maltreatment in the family home was likely to have normalised violence as a way to regulate his feelings of anger and that he did not develop adequate skills to express and manage negative emotions and resolve problems. He reported to the psychologist having a strained relationship with his mother, he maintains phone contact with his father. He is said to be close to his younger sister who resides with his wife and children.
The sentence assessment report records that prior to his incarceration he resided with his wife and their four children. His wife and children continue to support him while in custody, and he expects to return to the family home upon his eventual release from custody. The testimonials that are before me indicate that he has been a devoted and hardworking husband and father in the past.
In terms of his education and employment history, the offender told the psychologist that he attended the local public school where he was in trouble every day. He reported that he was in assisted classes throughout his schooling and has poor literacy. He did complete his School Certificate.
After leaving school he worked in a factory for three years and then obtained his white card in the construction industry. Prior to his incarceration the sentence assessment report records that he was employed as a labourer in the building industry. His wife informed the author of that report that upon his release from custody he will recommence fulltime employment with his previous employer.
In terms of his use of alcohol and illicit substances the sentencing assessment report records Solomen O'Sullivan reporting a significant history of drug and alcohol abuse commencing in his early teenage years. He reported that he used $500 of cocaine and $250 of MDMA every weekend. He also reported that to "relax" each day he would smoke $40 of cannabis and consume 12 cans of beer. He gave a similar account of his history of drug and alcohol abuse to the psychologist. He told the psychologist that on the night of the offences he had consumed approximately 24 standard drinks, approximately 4 grams of cannabis, one gram of cocaine and some MDMA.
He claimed to have been abstinent from illicit substances since re‑entering custody, and I note consistent with that statement he has not incurred any institutional misconduct infringements on his custodial record. He expressed a willingness to the author of the sentence assessment report to engage in treatment to address his drug and alcohol abuse and anger management issues.
In terms of his psychological and psychiatric history the sentence assessment report records that he reported to the author that he was diagnosed with depression and anxiety in 2018, and his wife reported that he had been compliant with mental health medication. He reported to the psychologist that since re‑entering custody in June this year he had requested that he receive his mental health medication but had not yet been psychologically assessed and as at the time of the report had not received it.
He reported to the psychologist having self‑harmed in the past with the most recent incident being five years ago. He currently experiences thoughts of self‑harm although his wife and children are recorded as being protective factors. The psychologist considered that his alcohol and illicit drug use met the diagnostic threshold for cannabis use disorder, alcohol use disorder and stimulant use disorder which is said to be in early remission. He has been supervised by Community Corrections once in the past and the sentence assessment report records that his response to supervision was considered borderline.
In terms of his attitude to the offences the sentence assessment report records that he accepted no responsibility for the offences and claimed to have no recollection of them. According to that report he placed blame on his intoxicated state. The sentence assessment report also records that he appeared to lack insight into the physical and psychological trauma that the victims of the offences would have suffered.
In contrast to the comments in the sentence assessment report the psychologist recorded in her report that the offender felt "very bad for the people who got hurt", and that he and his co‑offenders were the only people responsible for what happened that night. The sentencing assessment report assessed Solomen O'Sullivan as having a medium risk of reoffending.
The Crown accepted that Solomen O'Sullivan's plea of guilty to the affray offence was entered in the Local Court and that he should receive a 25% discount of his sentence for that offence, for the utilitarian value of his plea. Given the conflicting comments in the sentence assessment report and the psychological report as to his attitude to the offences I consider that there is very limited evidence of remorse. The offender Solomen O'Sullivan has reasonable prospects of rehabilitation. He has a limited criminal history, a supportive wife and family and the ability to be gainfully employed when eventually released into the community.
When I review the subjective case of Ma'amoloa O'Sullivan it will be seen that he does not suggest that his upbringing was as poor as that of his brother Solomen. However, I think I should keep in mind that the offenders were brought up in a very large family and often the perceptions of siblings as to what is occurring in the family home may differ. I propose in these circumstances to have some regard to the principles associated with the relevance of social disadvantage when sentencing explained in Bugmy v The Queen (2013) 249 CLR 571 when imposing sentence. The fact that the offender Solomen O'Sullivan committed the offence while significantly intoxicated on alcohol and illegal drugs is not a mitigating factor.
I am satisfied on the evidence, as I say, the offender Solomen O'Sullivan has reasonable prospects of rehabilitation. His prospects of rehabilitation will be assisted if he has a longer period on parole than that provided by the statutory ratio, and he will need assistance when he is released into the community to deal with his alcohol and illicit drug use. I also note that this will be his first time in custody. For those reasons I will make a finding of special circumstances when fixing his non‑parole period.
I propose to commence his sentence from 23 January 2019 to take account of pre‑sentence custody. When I come to sentence him I will use the aggregate sentencing provisions. If I had not done so there would have been some accumulation between the two wounding offences given that there are two victims, although noting they were committed in the one incident. The conduct in the affray offence is essentially contained within the other two offences and the sentence I would have imposed on that charge would have been effectively concurrent with the sentences imposed on the other offences.

Ma'amaloa O'Sullivan

I turn then to the subjective case for Ma'amoloa O'Sullivan. Ma'amoloa O'Sullivan's is 26 years of age and was 25 as at the date of the offences. He has a relatively limited criminal history with the only particularly relevant matter being that in 2015 he received a supervised s 9 good behaviour bond for an offence of stalk or intimidate with an intention to cause fear or harm. His criminal history is not such as to disentitle him to some leniency here. He spent 3 days in custody upon his arrest from the 28 May to 30 May 2018 and has been in custody since the jury's verdict on 12 June 2019, and I will back his sentence to take account of the pre‑sentence custody. I will backdate his sentence by 118 days to 8 June 2019.
There are before me a sentence assessment report, a psychologist's report dated 28 August 2019 by Tatyana Leist, a forensic psychologist, and testimonials from an employer and a friend. The following is taken from that documentary material. In terms of his family background, of course this offender is the brother of Solomen O'Sullivan. The psychologist's report records that the offender was born in Sydney and is the middle of 12 children. In contrast to Solomen O'Sullivan he described his upbringing to the psychologist as "a bit rough", and that although there were rules in the home it was easy for him to "not face the consequences" for misbehaviour. He reported that he was harshly disciplined when he became older and misbehaved at school.
Two older brothers were incarcerated while he was growing up. An uncle with whom he was close died when he was 14 and his schoolwork suffered, and his illicit substance use was said to have increased. The offender told the psychologist that he has a close relationship with his parents and siblings and that upon his eventual release from custody he proposes to live with his parents. He has had one serious romantic relationship and has no children. He reported some connection with an outlaw motorcycle gang which ceased when he turned 21.
In terms of his education and employment history, he told the psychologist that he attended the local public school and excelled in rugby and art and was placed in assisted classes from year 3 until he finished his schooling. He said that he completed year 11 but left during year 12. After leaving school, according to what he told the psychologist, he worked in a factory and then obtained his white card so he could work in the construction industry with his father. In 2015 his father suffered a serious accident and could no longer work so the offender reported that he increased his work hours to assist the family financially.
The sentencing assessment report records that prior to his incarceration he was employed in the construction industry and proposes to return to that occupation when next in the community. The testimonial from his employer that is before me records that he is a reliable, hardworking and motivated employee who was highly regarded by his fellow workers. In terms of his use of alcohol and illicit substances he told the author of the sentence assessment report that his alcohol use was recreational, involving binge drinking on the weekends, and that he used cannabis on a daily basis since he was 16.
He told the psychologist that he commenced using alcohol with his peers when he was 13 and commenced smoking cannabis on weekends when he was 15, which increased when a nephew died when he was 21. He used several grams of cannabis when not working up until he went into custody in June this year. He reported to the psychologist the occasional use of ecstasy and LSD between the ages of 18 and 21. In terms of his psychological history the psychologist considered that the offender's drug and alcohol use met the diagnostic threshold for cannabis use disorder, stimulant use disorder and alcohol use disorder, although those disorders are now in remission given his controlled custodial environment. The psychologist did not consider that he met the diagnostic criteria for personality disorder.
In terms of his attitude to the offences the sentence assessment report records that the offender believed that he was defending himself and that he and his co‑offenders were not the instigating party. He told the author of that report that after a long night of drinking and smoking cannabis he had been asleep in the back of the car when he heard arguing and that he became involved in the altercation as he was "not going to let his brother get bashed". He therefore maintained a position that is contrary to the evidence accepted by the jury in the trial.
He also told the author of the sentence assessment report that while he felt sorry the incident happened he believes that the victims were partially at fault as they instigated it. Again, that is contrary to the evidence accepted by the jury in the trial. In contrast to what he is reported telling the author of the sentence assessment report he told the psychologist he "accepted all facts charged". That he was "upset" about the events on the night of the offences and it was his fault.
The psychologist recorded that he acknowledged that the victims of the offences could have experienced distress. In particular, the pregnant wife of Mr Strauff. The psychologist noted that the offences were an escalation of the offender's past offending and considered that that may have been due to additional illicit substance use and excessive work hours at the time. The psychologist considered the offender had partial insight into his offending.The offender was assessed as having a medium to low risk of reoffending in the sentence assessment report. Unsurprisingly, the psychologist considered that his risk of reoffending would be reduced if he moderated his drug and alcohol use and engaged in appropriate treatment in that regard. Again, his plea of guilty to the affray was entered in the Local Court and I will allow a discount of 25% for the utilitarian value of that plea. As with his brother Solomen, the inconsistent statements about his attitude to the offences results in a finding that there is very little evidence of genuine remorse.
I consider Ma'amoloa O'Sullivan has reasonable prospects of rehabilitation; he has a limited criminal history, a somewhat supportive family and the ability to engage in employment when released into the community. As with Solomen O'Sullivan, the fact that the offences were committed while the offender was significantly intoxicated by alcohol and illicit drugs is not a mitigating factor. I am satisfied on the evidence, as I say, that Ma'amoloa O'Sullivan has reasonable prospects of rehabilitation and has commenced his rehabilitation although it is not yet complete.
His prospects of rehabilitation will be assisted if he has a longer period on parole than provided by the statutory ratio. I also note that this will be his first time in custody. I propose to make a finding of special circumstances when fixing his non‑parole period.
I consider for the reasons I gave in relation to Solomen O'Sullivan, that if I had not used the aggregate sentencing provisions I would have made the sentence for the affray offence completely concurrent with the wounding offence for which Ma'amoloa O'Sullivan was found guilty by the jury.

Brandon Bennett

I turn then to the subjective case for Brandon Bennett. Mr Bennett's date of birth is 24 August 1994, so he is 24 years of age and was 22 as at the time of the offences, a relatively young adult offender. He has a very limited criminal record consisting of a number of traffic related offences and one offence of driving a conveyance taken without the consent of the owner for which he received a community service order, which is the most significant sentence he has received. His record is one which does not disentitle him to leniency in this sentence. He spent two days in custody when initially arrested in relation to the offences.
There are before me a number of reports concerning Mr Bennett: a sentencing assessment report, a psychiatric report dated 10 September 2019 by Dr Anna Farrar, together with documentation obtained from Centrelink, Marayong Medical Centre, the New South Wales Department of Education together with a number of testimonials from family members and friends. I note the psychiatrist interviewed the offender who was accompanied by his mother at that time.
In terms of his family background, the psychiatric report records that the offender has two older brothers and an older sister. His mother reported that the offender had speech delay and was taken to a paediatrician when aged five as he had been noted by teachers to have problems with communication including following basic directions. He was said to have been diagnosed with Attention Deficit Hyperactivity Disorder when aged five.
The sentence assessment report records the offender reporting a close relationship with his parents and siblings. Since obtaining bail he has resided with his sister‑in‑law and niece. The psychiatric report records that although he commenced mainstream schooling in Queensland, he moved to New South Wales with his family in order to access increased support. He was placed in what was referred to as the Coreen Special School in Blacktown for children with learning disabilities and behavioural problems when in year 9. He was prescribed medication between the ages of five and 15 years of age and consulted a paediatrician. The report records that he was suspended for a variety of behavioural issues within the school system.
The psychiatrist had access to the New South Wales Department of Education documentation concerning IQ testing that the offender had undergone during his schooling. In September 2003 he was shown to have a full scale IQ of 63. In 2011 it was said to be 65. According to the sentence assessment report he currently receives the disability support pension and hopes at some point to return to employment in the construction industry. The offender told the author of the sentence assessment report that he had consumed a large amount of alcohol on the night of the offences although he considered that he was a social drinker and that he did not generally have an issue with alcohol. The psychiatrist recorded that the offender reported that he used to drink alcohol every second week and sometimes by drinking more than ten drinks in a session. He claimed to have ceased drinking since his arrest. He denied prior illicit drug use.
In terms of the offender's presentation at assessment, the psychiatrist noted that there was evidence of mild psycho-motor agitation and restlessness, however, his thought form was said to be logical and coherent and his cognition was grossly intact. The offender's presentation at interview with the psychiatrist was said to be consistent with an intellectual disability. The psychiatrist expressed the opinion that the offender Mr Bennett's history and presentation were consistent with a diagnosis of intellectual disability mild range. The psychiatrist in expressing that opinion had available to her documentation from the offender's past which had recorded the fact that he suffers from such a disability. The psychiatrist considered that the previous IQ testing of the offender had placed him in the mild range of intellectual disability.
The psychiatrist also expressed the opinion that the offender Mr Bennett's history and presentation were consistent with the diagnosis of Attention Deficit Hyperactivity Disorder. At the time of the offences the psychiatrist considered that the offender Mr Bennett had an alcohol use disorder which was operative. The psychiatrist expressed the opinion that the offender Mr Bennett's "mild intellectual disability, ADHD and alcohol use disorder would have increased his impulsivity and affected his decision making ability at the times of the alleged offences". The psychiatrist considered that he would have had difficulty appreciating the serious nature of certain situations, foreseeing the consequences of his actions and foreseeing the consequences of other people's actions at the time of the offences. She also considered that he would have been easily influenced by friends and peers given his mild intellectual disability. The psychiatrist also considered that because of his intellectual disability he would be vulnerable to exploitation in the gaol system.
The material tendered before me from Centrelink, Marayong Medical Centre and the Department of Education all reflect the fact that the offender Mr Bennett has suffered throughout his life with a mild to moderate intellectual disability. His mother's testimonial also confirms the difficulties her son has experienced in terms of his disability from a young age. Other testimonials speak of a young man, who, despite his disability, has impressed a number of persons with his kindness and honesty.
I mentioned earlier that the offender had in the past received a sentence involving the performance of community service and the sentence assessment report records that it was satisfactorily completed. The sentence assessment report records the offender acknowledging the seriousness of the offences and said that in hindsight he should have stopped and walked away. The sentence assessment report records that he acknowledged the victims "would have felt angry" at the time of the offence, however, he appeared to lack any further insight into the impact of the offence on the victims.
His lack of insight is highly likely to be the product of his intellectual disability in my view. The sentence assessment report also records that as at the time of the commission of the offences his peer group was a negative influence and that he had severed contact with that group. It appears that the peer group that is referred to included the two co‑offenders.
He told the psychiatrist that while he had armed himself with a bottle on the night of the incident he denied hitting anyone with it. He told the psychiatrist that he had been drinking that day and evening which is consistent with the evidence in the trial. The sentence assessment report assessed the offender Mr Bennett as having a low to medium risk of reoffending.
I indicated earlier I would return to my assessment of the objective seriousness of the offences by the offender Mr Bennett once I had reviewed the evidence concerning his mental health and intellectual disability. Clearly, as at the time of the offences, the offender Mr Bennett suffered from a mild intellectual disability and ADHD. The principles concerning the relevance of a person's mental health and sentencing are well known. Where the state of a person's mental health contributes to the commission of the offence in a material way the offender's moral culpability may be reduced.
Consequently the need to denounce the crime may be reduced with a reduction in the sentence. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions on which it is to be served may be reduced. It may reduce or eliminate the significance of specific deterrence.
The following extract from the High Court's decision in Muldrock v The Queen (2011) 244 CLR 120 is particularly relevant when sentencing offenders with an intellectual disability. It suggests that it is less likely that it is necessary to show a causal connection between the intellectual disability and the commission of the offence for there to be a reduction in moral culpability for the offending. The passage that I am referring to is in para 50 of the decision in Muldrock, and in particular at para 54 where their Honours said: "A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason as an ordinary person might as to the wrongfulness of the conduct will in most cases substantially lessen the offender's moral culpability for the offence."
In my opinion, given the offender Mr Bennett's intellectual disability and the content of the psychiatrist's report there was a causal connection between his disability and mental health condition and the offences here. He lacked the capacity to properly reason and judge the circumstances in which he found himself in that night.
When I reviewed the evidence here, while satisfied beyond reasonable doubt he was part of the joint criminal enterprise the Crown alleged, and had armed himself with a bottle, I was unable to be satisfied beyond reasonable doubt that he did in fact strike anyone with that bottle. The causal connection between his mental health and disability and the offences results in a significant reduction of his moral culpability for the offences in my opinion. This reduces the level of objective seriousness of his offences; see Lawson v R [2018] NSWCCA 215 by way of example.
I consider that in the particular circumstances of his case that the level of objective seriousness of both his offences is in the lower end of the range. I also consider that because of his mental health and disability at the time there is a reduced need to reflect general deterrence when imposing sentence upon Mr Bennett and similarly, in relation to specific deterrence in accordance with the principles I have discussed.
Due to his intellectual disability I do not think he fully understands the level of seriousness of the conduct he engaged in. There are statements recorded by him in the sentence assessment report and the psychiatrist's report, however, which are consistent with the offender Mr Bennett having some level of remorse in relation to his offence. The offender Mr Bennett has reasonable prospects of rehabilitation. He has good family support in the community. He appears to have taken steps to rid himself of negative peers. He does not appear to have a problem with illicit drugs. In relation to the two offences that Mr Bennett was found guilty of for the reasons I gave earlier I consider the sentence for the affray offence should be fully concurrent with the sentence for his involvement in the wounding of Mr Strauff.

Determination of sentence

I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. Serious offences of violence such as those that I am to impose sentence for today must attract significant sentences in order to deter the offenders concerned and others from engaging in such conduct. The events the subject of this trial show how lives can be fundamentally altered when people place themselves into states of very significant intoxication and where it appears all common sense and reason have gone out of the window.
Members of the public ought to be able to go about their lives without the risk of such serious offences of violence being perpetrated upon them. The only appropriate sentences to be imposed are sentences of imprisonment given the level of seriousness of the offences. The maximum penalty and in relation to the wound with intent offences, the standard non‑parole period have been taken into account as legislative guideposts. I indicated earlier I will use the aggregate sentencing provisions.

Orders - Solomen O'Sullivan

I will impose sentence on Solomen O'Sullivan first. Solomen O'Sullivan is convicted of the two offences of wounding with intent to cause grievous bodily harm of which the jury found him guilty, and of the affray offence to which he pleaded guilty. The first sentences Mr O'Sullivan will hear are what are called indicative sentences. You will then hear the aggregate sentence which is the actual sentence you will serve.
On the wounding of Andrew Krah with intent to cause grievous bodily harm offence, there is an indicative sentence of four years imprisonment and an indicative non‑parole period of two years and six months imprisonment.On the wounding of Christopher Strauff with intent to cause grievous bodily harm, there is an indicative sentence of four years imprisonment and a non‑parole period of two years and six months imprisonment.
On the affray offence there is an indicative sentence of two years and three months imprisonment.
There is an aggregate sentence of five years imprisonment with a non‑parole period of three years. That sentence commences on 23 January 2019. It expires on 22 January 2024. The non‑parole period expires on 22 January 2022. The earliest date Solomen O'Sullivan is eligible to be released to parole is the date of the expiry of the non‑parole period which is 22 January 2022. Whether he is in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of his behaviour in prison in determining whether he is released then or on another date.

Orders - Ma'amaloa O'Sullivan

I will now impose sentence on Ma'amoloa O'Sullivan. Ma'amoloa O'Sullivan is convicted of the offence of wounding Christopher Strauff with intent to cause grievous bodily harm, and the offence of affray.
On the wounding with intent to cause grievous bodily harm offence to Christopher Strauff there is an indicative sentence of four years imprisonment with an indicative non‑parole period of two years and six months.
On the affray offence there is an indicative sentence of two years and three months.
There is an aggregate sentence of four years imprisonment with an aggregate non‑parole period of two years and six months. The sentence commences on 8 June 2019 and expires on 7 June 2023. The non‑parole period expires on 7 December 2021. The earliest date Ma'amoloa O'Sullivan may be released to parole is 7 December 2021. Whether he is released on that day is a matter for the State Parole Authority.

Orders - Brandon Bennett

Mr Bennett, you are convicted of wounding Christopher Strauff with intent to cause grievous bodily harm, and the offence of affray.
On the wound with intent to cause grievous bodily harm to Christopher Strauff offence there is an indicative sentence of two years imprisonment.
On the affray offence there is an indicative sentence of 12 months imprisonment.
I impose an aggregate sentence of two years imprisonment. I consider that it is appropriate given my findings as to the level of objective seriousness of this offender's offences and his subjective case that I should consider extending to him the leniency of allowing him to serve his sentence in the community by way of an Intensive Correction Order.
In considering whether to impose a sentence by way of an Intensive Correction Order I am to consider as the paramount consideration community safety. I am to assess whether the making of such an order or serving the sentence by way of fulltime gaol is more likely to address the offender's risk of reoffending. I consider that there will be no risk to community safety if I allow the offender Mr Bennett to serve the sentence in the community and I consider that to do so will be a lot more likely to address the offender's risk of reoffending, and in that regard I refer to my findings concerning his subjective case.
Mr Bennett is sentenced to an aggregate term of imprisonment of two years. It commences today and expires on 3 October 2021. It is to be served by way of an Intensive Correction Order. The standard conditions apply being that you must not commit any criminal offence during the term of the order. You must submit to supervision by a Community Corrections officer.
I impose the following additional conditions: you must perform 250 hours of community service work. You must abstain from alcohol for the first 12 months of the order and from illicit drugs for the total term of the order. You must report to the Blacktown Office of Community Corrections at 1.30 next Tuesday 8 October. If you fail to comply with the conditions of this order you may have sanctions imposed on you by the Commissioner of Corrective Services or the State Parole Authority. You do not come back to Court and you may find yourself going into custody and you will need to be very careful to ensure you comply with the order.

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: 27 November 2019

At a glance

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Judgment (13 paragraphs)

Cases Cited (3)