R v Owen

District Court of NSW|2021-08-13

Solicitors: Kells Lawyers ( (for the offender) Ms T Lasschuit (for Director of Public Prosecutions) File Number(s): 2020/00320002

Introduction

In the early hours of the morning of 8 November 2020 in Wollongong's Crown Street a relatively minor altercation between two groups of men escalated; leaving one, Nkululeko Moyo, with a traumatic brain injury (TBI) and the other, Tyson Owen, facing a lengthy term of imprisonment. Both Mr Moyo and Owen had overcome some adversity in their respective lives. Both are men of promise. Both of their lives have been irrevocably changed by one incident of alcohol fuelled violence.
Owen is for sentence today having accepted his guilt to a charge of recklessly causing grievous bodily harm: s35(2) Crimes Act 1900. That offence carries a maximum penalty of 10 years imprisonment. Parliament has fixed a standard non-parole period of 4 years for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. The sentence to be imposed reflects a reduction of 25% to take into account the utilitarian value of the offender's early guilty plea: s 25D Crimes (Sentencing Procedure) Act 1999 (C(SP) Act).

Agreed facts

There are agreed facts before the court. And, the incident and what preceded it, were captured on CCTV cameras. The recordings are of good quality.
Mr Moyo and his friends, who are originally from Africa, left the Harp Hotel at about 2AM. As they moved west down Crown St they passed Owen and his friends who were standing outside the Tusk nightclub. Owen and his friends are Maori or Pacific Islanders. One man in the offender's group (wearing a puffy jacket) made a racist remark. There was a brief verbal and physical altercation between 'puffer jacket' and the shorter of Mr Moyo's friends. Mr Moyo helped break it up and his group moved on further west down Crown St.
About 40 minutes later CCTV shows Mr Moyo's group still on the footpath of Crown St. Puffer jacket came over to them and extended a hand in apparent friendship, which Mr Moyo accepted. Immediately however the mood turned and puffer jacket engaged in another verbal and physical altercation with the Mr Moyo's shorter companion, "M." Mr Moyo again tried to defuse the situation but puffer jacket punched M down and kicked at him while he was down. As M was attempting to get up puffer jacket was punching at him. They engaged in a wrestle.
Mr Moyo was still trying to calm things and break them apart as Owen and more of his companions arrived quickly on the scene. Owen put his drink down and moved into the melee. At first he seems to be trying to break up the wrestle. At this point Mr Moyo is also trying to do so and pushes puffer jacket away from his friend M. As he raised a hand to push puffer jacket a second time Owen steps toward him. And, with a closed fist strikes Mr Moyo hard to the side of his head.
Mr Moyo fell to the ground and did not move. Only a passing taxi driver seems to notice this. The rest of the melee moves into Crown Street itself. Puffer jacket is dragged off by one of his friends and Owen drags M away and pushes him aside. Mr Moyo has still not moved. At that point those involved in the melee notice him lying still with blood pooling under his head. Owen's group make a few conciliatory gestures but soon after leave the scene. Mr Moyo's friends stay with him and the taxi driver until an ambulance arrives.
Mr Moyo was taken to the Wollongong Hospital. An emergency craniotomy was performed. He was placed in a medically induced coma. He remained at the Wollongong Hospital for a week before being transferred to the Liverpool Hospital for brain injury rehabilitation. He had a fracture to the base of his skull and a left temporal extradural haematoma with significant haemorrhagic contusions in the right parietal lobe, as well as evidence of cerebral oedema.
Later medical reports confirm Mr Moyo suffered a severe traumatic brain injury (TBI). They detail his progress to date in overcoming a number of associated disabilities and his engagement in a return to work plan. A neuropsychology assessment from early 2021 notes that while he has areas of relatively intact functioning, such as his intellectual ability, there are areas of cognition impairment, such as difficulties learning and remembering. His speed of information processing is low and his visual scanning is impaired. There are also indications of poor cognitive flexibility and reduced verbal planning and problem solving skills.
Mr Moyo has no memory of the incident.
Owen was arrested on 9 November 2020. As is his right he told police he didn't want to be interviewed. He did consent to DNA testing and he did enter a guilty plea when the matter was before the Local Court. He was initially refused bail but it was granted on 24 November 2020 - after 16 days in custody. He must have the full benefit of that period in custody: s 24 C(SP) Act.

Victim Impact

A Victim Impact Statement (VIS) from Mr Moyo was received as part of Exhibit A. It was read during the Virtual Court hearing in his presence by a friend. This was a moving experience, reducing the offender to tears.
A VIS may be received or considered by a court. It must relate to "any personal harm suffered by the victim as a direct result of the offence." This VIS did at times stray beyond what is technically allowed but it is accepted that rather than have it edited or restricted I will take it into account and consider it as the C(SP) Act allows: R v Tuala [2015] NSWCCA 8. The VIS attests to harm of the kind that might be expected of an offence that caused a TBI. There is little difficulty with my accepting its contents. The defence accept that the injury suffered by Mr Moyo was significant.
Mr Moyo told me how the life he was making in Australia had been damaged by what had been done to him. He came to Australia from Africa to make a new life. He had qualified as a registered nurse after studying at the University of Wollongong. He had, but has now lost, his love of this city. He still suffers headaches and scalp itch where his scars are. He has had to relearn how to walk properly.
As a result of his TBI he cannot live, and may never be able to live, independently. He feels frustrated and demeaned by the assessments he is continually asked to perform and his lack of ability to complete them to his former high standard. He told me of his problems getting his driver's licence back and the gross inconvenience of living in Western Sydney and not being able to drive. He despairs of ever getting his independence back. He has lost trust in a community he thought was safe and fair. He details the significant financial impact caused by his medical and other bills. He worries about his capacity now to gain better qualifications or advancing further in his career.
He told me of the impact of his injury on his family who came to Wollongong and saw him in a coma. They too have born an emotional and the financial cost. He can no longer send financial assistance to his younger brothers in Africa. He concluded by stating how important it is for young people of colour to go out at night and have fun "to have a harmless evening of good times, and for anyone who just loves life and wants to walk the streets at night or the early hours of the morning, in search of music and dance and a good meal with friends." He wants to know there is still justice and that his life matters.
The sentence I will impose today cannot restore Mr Moyo to the man he was. No punishment could do that. A sentence and its custodial component is only one indicator of the seriousness with which the court and the community views the crime committed, as a court sentencing an offender must take into account all relevant considerations. This means a direct correlation between harm done and time to be served is impossible. A victim of violence should never equate or measure their injury or suffering with the punishment actually inflicted by a court on their attacker.

Maximum penalty and standard non-parole period

Careful attention to the maximum penalty and the standard non-parole period is required. I am required to give content to the standard non-parole period. In doing so I am required to assess objective seriousness without reference to matters personal to the offender and wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 at [27]. However, as the court in Muldrock made clear neither can I engage in a staged approach to sentencing: at [28]. That assessment must be synthesised along with all other relevant matters.
Both the maximum penalty and standard non-parole period provide sentencing measures to be balanced with all other relevant factors. They also invite a comparison between this case and other cases. The consistent application of principle requires careful consideration be given to other decision of this and appellate courts but "…sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.'' Queen v Pham (2015) 256 CLR 550: [2015] HCA 39; at [46], applying Hili v The Queen, (2010) 242 CLR 520; [2010] HC 45.

Objective seriousness

In submissions Mr Clarke, who appears for Owen, accepted that Mr Moyo had sustained substantial injuries and that the nature of the injury caused to a victim will, to a significant degree, determine the seriousness of the offence and the appropriate sentence. However, he also noted that the degree of violence used was also a material consideration on sentence and the actual violence used here was he said "relatively low" and thus notwithstanding the injury inflicted towards the lower end of objective seriousness: "The offender's conduct was limited to a single punch to the side of the victim's head. There was no use of any weapon, and the offender placed a bottle on the ground prior to joining the melee."
Owen is to be sentenced for his recklessness. He is to be sentenced for the seriousness of the harm his reckless action caused - and that harm is the measure that distinguishes many acts of criminal violence from others. For example - Puffer jacket threw punches that night, some connected, but his actions caused no noticeable injury and could only have been prosecuted as common assaults with a maximum penalty of 2 years.
Here, there was one punch by a drunken offender who was not thinking of the consequences to himself or others. The one punch occurred in a public street after a long night, and after leaving a nightclub, when this offender intervened in a fight started by one of his group. The one punch occurred without warning or apparent reason. Owen is a large and powerful man. He hit Mr Moyo with some force. He did not try to moderate that force. He hit another young man who posed no risk to him or his friend puffer jacket. And, he hit him to the head. Mr Moyo did not see the blow coming. He did not expect it. He was defenceless and unable to take any action to protect himself. He then suffered a TBI.
If Owen had thought I am sure he would not have done what he did. He was intoxicated but that cannot excuse what he did. At best it explains why he did it. There was no premeditation. He was not looking for a fight; to the contrary.
He did not go on with the attack. The fact is he did not even notice what he had done. Tragically he is a big, strong, powerful man and his hit was hard. Equally tragically it is a scenario that comes before the courts too often: "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 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:" Pattalis v R [2013] NSWCCA 171 at [23]
Other decisions of the Court of Criminal Appeal 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 Loveridge [2014] NSWCCA [120] at 102] & [103]; R v Mitchell; R v Gallagher [2007] NSWCCA 296 at [29].

The case for the offender

Owen wrote a letter to the court accepting full responsibility for his actions and acknowledging the gravity of the injury done to Mr Moyo. He told me of the impact his acceptance of responsibility and possible gaol sentence had on him and his family and those who work for him. He promises to do what he can to lead a better life. He told me he "will be sorry for the rest of his life." He offered his sincere statement of regret and apology. Although not on oath, I can accept what he said. He did not try to minimise his actions or put blame on others or his victim.
He has two summary matters on his criminal record. They arose during the break up of his relationship with his now ex-wife. She has forgiven him. And, he appears to have learned from that experience. Despite those early acts he is still entitled to a measure of leniency because of his prior good character.
His now separated wife told me in a letter of the grief and loss and trauma he has suffered during his life and the steps he has taken to build a new life for himself and their children, for whom he provides considerable financial and other support. Other references speaks to his support for a local rugby club and the professionalism of his roofing business. Owen has sought help in dealing with his drinking from a Salvation Army psychologist.
This material is repeated in a comprehensive Sentence Assessment Report (SAR). The SAR notes Owen's insight and empathy. He is regarded as low risk of re-offending.
His personal history is uncontroversial and was succinctly summarised in his solicitor's written submissions: MF1 2. The offender is currently 30 years old. He grew up in New Zealand, the second eldest of 11 siblings. His parents struggled with alcohol and addiction issues his entire life. He grew up without a lot of basic necessities, such as food, clothing, heating and medical care. As a result of his parents' addictions, the offender's Aunty and grandmother took care of him when his parents were not able to. His Aunty and grandmother are both described as strong, female role models whom he loved and respected. When the offender was in his early 20s, his mother died suddenly of an asthma attack. Not long after, his Aunty and grandmother died. The offender lost the three women who had raised him, within a few years. He feels he has not properly dealt with that grief, nor has he sought any professional assistance. Despite this difficult upbringing, the offender has been able to stay away from heavy alcohol use and drugs. He has been able to successfully run a business. The offender has taken a strong interest in his younger siblings upbringing in an attempt to show them a different way of life. He is currently living with a friend and that friend's wife.
The offender is self-employed in his own roofing business, which has been operating for 7 years. The business has 6 young employees who will lose their jobs if he is gaoled. He has been a member of a local Rugby League Club for 5 years and still a current player.
Owen started life with few advantages. He has made something of himself; he is generally pro-social. Like many others he enjoys a drink and has no history of problematic drinking. Had it not been for this incident he would have continued his life as a respected and valued member of our community.
Owen's sentence proceedings were conducted last week online via virtual court. He appeared with his solicitor from the Solicitors' office. His family could not be here to support him. He was asked to come to court today so he could be admitted to custody.
During the virtual court hearing the proceedings were interrupted because of an unrelated incident. A man came into the his Solicitor's office and hit another practitioner with a stick. Owen, already obviously upset by hearing the VIS read, left the room to assist and subdue that attacker. He returned blood spattered to be told he must attend today so he could be formally sentenced and enter custody. His actions then and now are one measure of the man.
Owen has come to court today and will enter gaol during the current lockdown, when the risk of COVID-19 entering our gaols is very real. He has learnt a valuable lesson already. Gaol will not make him a better person. It can only exact appropriate punishment and retribution. He will get the benefit of a substantial finding of special circumstances. The minimum period he must serve in gaol however must properly reflect the gravity of his offence and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

COVID-19

A plea of guilty entered during the currency of the pandemic is worthy of greater weight in mitigation and amelioration of sentence than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects: Worboyes v R [2021] VSCA 169; Chenhall v R [2021] VSCA 175.
The present crisis has increased apprehension by prisoners about infections in gaols as it does in the community in general. As a community we are being asked, urged and compelled to self-isolate. This cannot happen in a gaol. Social visits only just resumed, only to be stopped again. Access to telephone calls and AVL links has increased. New prisoners have to endure an initial period of quarantine.
COVID-19 has entered our gaols. Owen falls into a category that might be considered for early parole: s276 Crimes (Administration of Sentences) Act 1999. The lack of visits, and that heightened anxiety and concern, are relevant factors that must be synthesised along with all other matters.

Submissions

I am indebted to Ms Lasschuit, Solicitor for the Director of Public Prosecutions, and Mr Schmidt, Owen's Solicitor, for their comprehensive written submissions. The parties did not differ significantly on matters of principle. I do not intend to explicitly refer to the matters raised but I have considered and addressed them in coming to my determinations as to the appropriate sentence.
Ms Lasschuit's ultimate submission was that the only appropriate penalty was full time imprisonment, given the impact of the offending on the victim.
Mr Clark, of Counsel, spoke to the written submissions filed earlier. He submitted that here there were "no winners rather; two men whose lives had been irrevocably changed in one short moment." While accepting the seriousness of the injury caused to Mr Moyo, Mr Clarke noted that this occurred because of "just" one punch. He said that despite what our courts and media say time and time again the message about the consequences of one punch attacks has not cut through. He made the point that Owen's act was spontaneous and not related to any other aggressive action by him. He drew my attention to the CCTV from this and the earlier incident which showed Owen played a conciliatory role. He noted that although Mr Moyo saw this as racist attack nothing attributed to Owen, a proud Maori, indicated he did or said anything of a racist nature.
Mr Clark submitted that despite the severity or Mr Moyo's injury; when the early guilty plea and all relevant factors were taken into account a sentence of less than 2 years could be imposed. And, that it was entirely appropriate that this sentence be served in the community subject to an intensive corrections order.
After the submissions ended I indicated that although I would give the matter anxious consideration the objective seriousness of the crime and the need for appropriate victim vindication required a sentence of more than two years. The matter was adjourned until today so that Owen could attend Court, as an exception to the current COVID Emergency Practice Note prohibiting personal appearances, so that the sentence of imprisonment could be imposed.

Synthesis

The NSW Court of Criminal Appeal has repeatedly emphasised that violence on the streets, needs to be addressed by sentences that carry a very significant degree of general deterrence. This is because it assumed general deterrence and denunciation of crimes serve as a means of protection of the public: R v Loveridge; R v AEM [2002] NSWCCA 58 at [92]. The majority of the High Court in Munda v Western Australia [2013] HCA 38, [52] to [58] however discussed a countervailing position when they said: "It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion."
However the High Court then went on to say that the proper role of the criminal law is not limited to the utilitarian value of general deterrence. Sentencing courts have an obligation: 1. to vindicate the dignity of each victim, 2. to express the community's disapproval of the offending, 3. to afford such protection as can be afforded by the state to the vulnerable against repetition of the offending. 4. Further, one of the historical functions of the criminal law has been to properly punish an offender so that victims and their friends and families are discouraged from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.
Those first two points have particular resonance here. A proper sentence must reflect the harm done to a victim and the community and mark the Court's view of the seriousness of the crime. It should also let other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203, at 205.

Orders

I take into account the fact that the offender has entered a plea of guilty and I have reduced the sentence that would otherwise have been imposed by 25% in accordance with s 25D Crimes (Sentencing Procedure) Act 1999.
Taking into account a finding of special circumstances, you are convicted and sentenced to a term of imprisonment of 3 years. There will be a non parole period of 1 year 6 months to commence on 3 August 2021 and expire on 2 February 2023.
You will be eligible for consideration for release to parole on 2 February 2023 to serve the balance of term of 1 year 6 months to commence on 3 February 2023 and expire on 2 August 2024.

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: 19 August 2021

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