On 26 October 2017, I heard submissions on sentence following a plea of guilty by the offender to an offence of recklessly causing grievous bodily harm pursuant to s 35(2) Crimes Act 1900 (NSW).
[2]
Facts
According to the agreed facts, the offender and the victim were residing with their father and grandparents at Gurley Place, Bonnyrigg at the time of the offence. They had previously had arguments between them but nothing that had resulted in either being injured. Both the victim and the offender have lived together most of their lives.
On Saturday 17th December 2016, the offender and the victim spent the day together working in the garden of their house. During the day, they consumed a few beers. Later that evening at about 7:00pm, their father drove them both to a house party in Heckenberg.
While at the party, both the offender and victim consumed a large amount of beer, wine and a spirit called "Medronho" - the precise amount of which was unknown. Throughout the night they became well-affected by alcohol.
Towards the end of the party, the offender and victim had a disagreement. The offender attempted to contact his father by phone to ask to be picked up however, there was no answer. He then attempted to use the Uber phone app but could not, so he decided to walk home. The victim also went home around this time.
The offender arrived home around 12:30am. As the offender approached the front door, he saw the victim sitting on a chair near the front door of the house. A further argument broke out which escalated into a physical confrontation, during which, a number of pot plants were smashed. During this altercation, the victim and offender rolled down the driveway and wrestled in the street. At some point during this altercation, the offender attempted to strangle the victim.
During the fight on the street, a witness recalls observing the victim kicking the offender as he lay on the street. The witness recalls that the victim kicked the offender twice in the stomach.
The offender's grandmother, Ms Maria Perez walked outside where she saw the victim. The victim said to Maria, "I'm sorry Avo, it was not me, it was Andrew that did all of this." The offender was standing in the street and started yelling "Avo, Avo call the police, call the police, Adam is trying to kill me." The victim then said to Maria, "OK, now I am going to kill him" and walked in the direction of the offender. Maria attempted to stop the victim and hit him with her hand, but he pushed her out of the way.
The offender was standing towards the bottom of the driveway of number 12 and the victim closer to the house. The victim then ran towards the offender. At this point in time a witness recalls observing the victim run about 15 metres towards the offender and "launch towards" the offender.
The offender obtained a nearby rock, roughly the size of a softball. He swung wildly at the victim, hitting him in the face and head causing the victim to fall to the ground. After the victim had fallen to the ground, the offender then proceeded to punch him a further two times in the head. The victim kicked the offender while the offender was on top of him, causing the offender to run away. The victim did not have anything in his hands when he approached the offender.
Police from Fairfield arrived a short time later to find the offender sitting on the driveway near the house and the victim unconscious on the road. An ambulance was called for the victim and he was taken to Liverpool Hospital for treatment of his facial injuries.
The offender was arrested and cautioned before being placed in the rear of a police vehicle. He was later treated by ambulance officers after vomiting in the police vehicle. In a recorded conversation in the ambulance with police the offender made admissions that he had hit the victim in the head with a rock. During the interview with police, the offender was crying and attempting to cover his face.
Following his arrest, the offender participated in an ERISP during which he stated the following:-
1. During the course of the party, the victim was being a "smart arse" and "was doing something to me….just saying stuff", however the offender cannot recall exactly what was said;
2. That during the fight there was "punching, kicking, grabbing" and the offender was "tryin' to just escape";
3. He choked the victim "so he would stop fighting me";
4. Before he hit the victim, the victim "came after me with hands, it looked like he was charging me and I, I got scared and he said, I'm gunna knock you out. He didn't yell it or anything, he just said it to me";
5. That as the victim came towards him "I tried to hit him and it must've connected with his head and he stopped comin' after me";
6. The offender described his level of intoxication as extreme and that he didn't recall the events "properly";
7. The offender also stated in relation to the victim, "I want to hug him and I want to kiss him and tell him I'm sorry. He's my only brother; he's pretty much my only friend. I don't know how it got out of hand like that. I wish I had never done it. I wish I did just let him smash me".
The victim has no recollection of the night following the house party, and only remembers waking up in Liverpool Hospital with injuries to his face.
As a result of the offence, the victim sustained a fracture to his skull and a number of fractures to the left side of his face including nasal bone fractures, left medial and inferior orbital wall fractures, an anterior maxillary sinus wall fracture, a left infra-orbital laceration, a corneal abrasion and amnesia. Since 18th December 2016, the victim has had a metal plate put into his cheek bone due to the injuries to his cheek bone, has been operated on due to an aneurism on his left temple; and, has developed a cataract on his left eye due to the impact to his head. His vision in his left eye is also impaired as a result of the assault.
[3]
Victim Impact Statement
Also tendered in the Crown case is a victim impact statement pursuant to s 30 Crimes (Sentencing Procedure) Act 1999 (NSW). [1] In that statement Mr Adam Pires says he is no longer the person he was before. He says he was once a person people could rely on. He says he is now a shell of his former self; a speck of the brave person that was "Adam," He described his way of life, self-esteem, respect and dignity having been stripped from him in the most terrifying of situations. His says his trust in people is all but destroyed. He even has trouble enjoying a quiet drink with his partner, family and friends without feeling anxious and wary. He is constantly looking over his shoulder fearing that there is someone there who wants to hurt him. He states that he fluctuates from extreme insomnia to extreme fatigue and his motivation is gone. He says that his ability to love and care for others is disappearing and feels he has tried so hard, but was beaten down.
In summary, he feels weak, vulnerable and mentally damaged; struggling day to day with what has happened. He states that he suffered physical trauma to the left side of his face resulting in a metal plate, impairment of his vision, as well as ongoing treatment resulting in further surgery to his left eye. In his own words:-
"To put a dollar amount on my experience is impossible, but the financial loss incurred is quite substantial and makes day to day living that much harder. I can no longer enjoy the things I used to and it is a constant reminder each and every day that I cannot have the ability I used to have, I even struggle with driving as my vision is impaired vision, and simple things like dentist appointments." [2]
The statement is largely focussed on the feelings of the victim following his injuries. No suggestion was advanced that they do not accord with the nature of the injuries the victim sustained as referred to in the agreed facts. However it is important for the Court be reminded of such experiences.
Objective Seriousness
In assessing the objective seriousness of an offence under s 35(2) Crimes Act 1900 (NSW) I accept relevant factors include the degree of violence used or the ferocity of the attack; [3] the nature of the injury caused to the victim; [4] and, the intention with which the offender inflicts harm. The nature of the attack and the surrounding circumstances are also highly relevant. [5] The number of blows and the circumstances in which they are delivered are matters to be considered in the assessment of objective seriousness of the offence. [6]
[4]
Use of a Weapon
In this case, the Crown submits that aggravating features be taken into account was the fact the offence involved the actual use of a weapon, namely a rock, to hit the victim in the face and head area causing him to fall on the ground. [7]
The solicitor for the offender accepted that s 21A(2)(c) in the 1999 Act was engaged in that the offence involved the actual threat and use of a weapon.
[5]
Vulnerable Victim
The Crown next contended that the offence was aggravated as the offender assaulted the victim with a rock whilst knowing the victim was unarmed at all times. [8]
The fact that the victim was unarmed when struck does not make him vulnerable within the terms of s 21A(2)(l) of the 1999 Act. This is so as the section is "concerned with the weakness of a particular class of victim and not with the threat posed by a particular class of offender. In Nowak v R, Buddin J held:-
[28] The fact that the victim was unarmed when struck by a man wielding a bottle was a highly relevant factor in an assessment of the objective gravity of the offence. It is true that he was rendered vulnerable to the applicant's attack. All victims are, to some extent at least, vulnerable. But that is not the sense in which the expression is to be understood in the present context. [9]
In my view, the fact that the offender was armed is properly to be taken into account as an aggravating factor pursuant to s 21A(2)(c) of the 1999 Act. The fact that victim was unarmed is to be taken into account in assessing objective gravity.
[6]
Injury, emotional harm, loss or damage was substantial
The Crown submitted that pursuant to s 21A(g) of the 1999 Act the injury and emotional harm was substantial in that the victim's injuries significantly exceeded the minimum necessary to qualify as grievous bodily harm such as to constitute an aggravating factor.
The solicitor for the offender accepted that the level of harm exceeded that necessary to qualify as grievous bodily harm.
In Haoui v R, Johnson J stated that that "grievous bodily harm" does not require that the injury suffered is a permanent one or that the consequences of the injury are long lasting or life threatening, but does require that the injury is a really serious one. [10] His Honour went on to state that there is no bright light test for determining whether a particular injury or injuries constitute grievous bodily harm. [11] That case dealt with 'grievous bodily harm' for the purposes of s 52A(3)(b) Crimes Act 1900 (NSW). It did not involve consideration for the purposes of s 21A(2)(g) of the 1999 Act.
The correct exposition of the principle referred to by the parties was described by Johnson J in R v Zoef, where it was held:-
[123] It is an aggravating feature of an offence that the injury caused to the victim by the offence was substantial: s.21A(2)(g) Crimes (Sentencing Procedure) Act 1999. As the inflicting of grievous bodily harm is an element of the offence, the bare fact that grievous bodily harm was caused cannot be treated as an aggravating factor of itself: s.21A(2). However, the nature and extent of the grievous bodily harm in a particular case may be taken into account as an aggravating factor: R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at 189-190 (paragraphs 106-107). In this case, the shot caused the victim to fall to the ground immediately as it had irreparably damaged his spinal cord, paralysing him from the chest down (remarks on sentence, page 5). The victim will remain that way for the rest of his life (remarks on sentence, page 6). His Honour Judge Berman SC stated, correctly, that the consequences for the victim "are a very important part in determining the sentence which must be imposed" (remarks on sentence, page 6). [12]
The reference to R v Way and the reference to the remarks of Judge Berman SC as the sentencing judge make clear that factors that are integral to the offence are not to be taken of themselves to be aggravating factors so as to provide an additional or cumulative effect by reason of s 21A(g) of the 1999 Act. This is in line with the requirements of s 21A(2)(e) of the 1999 Act. However I accept that the nature of the harm and the consequences suffered by the victim can and do increase the objective seriousness of the matter as stated in R v Zoef. In this case the victim suffered a significant physical injury including impaired vision and consequent emotional trauma. The agreed facts do not describe the extent of the impairment to the eye. [13]
[7]
Intoxication
The offender and the victim were intoxicated. The solicitor for the offender conceded that this was not a mitigating factor but was relevant to the overall background to the offending and the offending behaviour can be assessed having regard to that background.
Plainly, intoxication is not a mitigating factor to be taken into account. [14] Indeed the commission of an offence whilst intoxicated may warrant greater emphasis being placed on general deterrence. [15]
[8]
Provocation
Both the Crown and offender drew attention to the fact that the offender being provoked by the victim needed to be taken into account, pursuant to s 21A(3)(c) of the 1999 Act.
The Crown argued that the extent to which the provocation constitutes a mitigating factor depends upon the relationship and proportion between the provocative conduct and the offence. [16] It observed that in some circumstances the offenders' conduct would be so disproportionate to provocation that it would be open to the Court to find that there was no mitigation. [17]
The Crown submitted that the offender using a rock to hit the victim in the head and continuing to punch the victim in the head would be disproportionate to the provocative conduct. In this respect, the Crown argued that the threats to kill the offender could not be viewed as intended to be fulfilled.
The solicitor for the offender drew attention to the fact that the agreed facts recorded the victim being seen fighting and kicking the offender in the stomach and the victim said that he was going to kill the offender and pushed his grandmother out of the way before running towards the offender at a distance of 15 metres before the offender responded.
In R v Ferguson, Smart AJ stated:-
[29] … it is of the essence of provocation that the acts of others cause offenders to lose their self- control and embark upon criminal conduct often of the utmost gravity. [18]
Further his Honour acknowledged provocation can reduce the objective criminality appreciably.
I accept that there was provocation in the circumstances of this offending and that the offender's actions in using the rock were not pre-meditated but rather impulsive. I further accept that they were a continuation of circumstances which had commenced at the party that both the victim and the offender attended and continued in the surrounds of the family home. The agreed facts acknowledged that the victim himself made threats to the offender "OK, now I am going to kill him" and pushed his grandmother out of the way so that he could get to Mr Pires. This was just prior to Mr Pires asking the grandmother to call the police. Nevertheless the actions of the offender occurred in the context of an argument which had commenced earlier in the evening and where both the offender and the victim had consumed excessive amounts of alcohol and followed a fight which earlier included the offender attempting to strangle the victim. Although the offender told police that he was just 'trying to escape' that was not evident in his actions after he asked his grandmother to call the police and when he used the rock. Nor was it evident in his subsequent actions in punching the victim a further two times after he had fallen to the ground.
[9]
Assessment
The Crown submitted the matter fell towards or just below the mid-range of objective seriousness.
The solicitor for the offender argued however, that the level of provocation was significant and should be borne in mind.
In all of the circumstances, I accept the objective seriousness fall within the upper end of the low range.
[10]
Mitigating Factors
The Crown and the offender accept that the plea having been entered at the earliest opportunity in the Local Court, a discount of 25 per cent should be applied. [19] I accept that this so.
The offender does have a criminal history however, I accept the submission made on his behalf that it is "not significant" and he has been crime free since 2010. I take this into account in his favour. [20]
The offender did not seek to advance good character under s 21A(3) of the 1999 Act. [21]
I accept, both on the basis of the agreed facts and the evidence which the offender gave before me that the offender is genuinely remorseful. [22] That remorse was acknowledged in the ERISP interview that he participated in. Further the offender attempted to apologise by SMS messages to his brother and has communicated as much through his father however, he has had no success in contacting the victim. His most recent contact attempt was some 5 weeks prior to sentence submissions. He stated that he would be happy to try again. He further stated that he accepts responsibility.
According to submissions from the offender's solicitor the offender is 32 years old and has been undertaking a university degree in mechanical engineering however has ceased his university studies since the offence with the view that he would not complete the degree whilst present proceedings are on foot. This was said to be due to the stress and an acceptance that a full time custodial sentence is likely to be imposed. Furthermore, it was submitted that the offender has had to work in order to earn money. It is the offender's ultimate intention to recommence his university studies and complete his degree and ultimately fulfil a useful and contributing lifestyle. It is submitted on his behalf that he has reduced his alcohol consumption.
On the offender's behalf the Court has had submitted to it a reference Dr Jose Ramos Horta referring to his knowledge of the Pires family. Dr Ramos Horta describes the offender's grandparents displaying inspiring integrity and dignity having raised their children and children's children with loving care. He noted that both the offender and the victim were born in Australia from a Timorese father and Icelandic mother. Dr Ramos Horta further refers to the children being "proud prizes" of their parents and grandparents.
In this instance based on the evidence of the offender's remorse I accept the incident has had a significant effect on him to the point that he has been specifically deterred.
In light of this, the offender's limited antecedents and what I accept as good family support, I am satisfied that the offender has excellent prospects of rehabilitation and is unlikely to reoffend. [23]
[11]
Analysis
The Crown and Defence both submitted that the threshold contained in section 5(1) of the 1999 Act has been crossed. Nevertheless the Defence raised consideration of custodial alternatives such as home detention, intensive corrections orders and suspended sentences. [24]
The maximum penalty for the offence is one of ten years with a standard non-parole period of 4 years for a medium range offence. I have regard to these guideposts as part of the process of instinctive synthesis.
In fixing an appropriate sentence I have had regard to previous sentences for offences of this kind without overlooking the need to focus on the facts of the case before me.
R v Dunn [25] involved a verbal argument that developed into a physical fight between the victim and the offender. There was a dispute as to who threw the first punch. Both exchanged punches and the offender then grabbed the victim's head and kneed him to the right side of his face on a number of occasions he victim attempted to grab the leg of the offender and both men went to the ground - the offender thereafter struck the victim a number of further blows to the head and body.
The effects on the victim were described in the agreed facts as:-
"As a result of the incident the offender (sic - the victim) suffered multiple fractures of the right cheek and eye socket, a fractured nose, a broken tooth and has lost the sight in his right eye as a result of damage to the optic nerve. There is no likelihood that the vision in his right eye will improve."
A sentence of 2 years and 6 months was imposed including a non-parole period of 15 months following a plea of guilty to an offence under s 35(2) of the Crimes 1900 Act (NSW). The offence did not involve the use of a weapon but the provocation can in my view be described as an "instigating contribution" of some significance. The injuries however particularly the loss of complete vision to the eye appear more serious than the instant case.
On appeal, Grove J (with whom McClelland and Johnson JJ agreed) held:-
[21] Whatever defect might be found to arise from inadequacy of expression, a sentence assessment of 3 years imprisonment, reduced for the plea to 2 years 6 months, where the consequences of the crime included, inter alia, the permanent loss of sight of an eye is so low that I would conclude that his Honour has made generous allowance for whatever instigating contribution the victim made, the circumstance that the applicant's liability arose out of excessive self-defence, together with allowance for favourable subjective factors upon which the applicant could draw.
In R v Dungay, [26] a sentence of 1 year and 9 months suspended imprisonment was imposed following a plea of guilty entitling the offender to a 25% discount. The case involved a single punch to the victim's head striking him to the side of the head leading the victim to be unconscious. It was preceded by an aggressive verbal exchange which in due course led the two men to push each other. The victim remained in a coma for five weeks and sustained a fracture to the right occipital bone at the back of the skull haemorrhaging contusions and subarachnoid blood. McCallum J (with whom Macfarlan JA agreed) accepted that the sentence was lenient but was not satisfied on the Crown appeal that it was outside the permissible range. [27]
In Longworth v R, [28] Macfarlan JA referring to earlier cases including R v Dungay (with which he had concurred) summarised a series of more recent Court of Criminal Appeal and stated that they pointed in a different direction. None of those cases however involved provocation.
[12]
Sentence
I have earlier referred to the objective seriousness as within the upper end of the low range. It is necessary to impose a sentence that punishes the offender, acknowledges the harm occasioned to the victim and makes the offender accountable. With offences of this kind involving violence including the use of a rock by a person embolden by alcohol leading to injury of the kind described the sentence must provide for general deterrence. [29]
The case in my view does not allow for consideration of non-custodial options.
By reason of the fact that this will be the offender's first time in custody, his excellent prospects of rehabilitation and my finding that he is unlikely to re-offend I find special circumstances to vary the statutory ratio.
The offender is convicted.
But for the plea of guilty, I would have imposed a sentence of three years and three months imprisonment.
In light of the plea the offender is sentenced to serve a non-parole period of 1 year and 6 months imprisonment to commence on 24 November 2017 and to expire in 23 May 2019. Thereafter the offender is to be released on parole to serve an additional term of 1 year and 1 month imprisonment from 24 November 2017 to 23 June 2020. This makes for an overall head term of 2 years and 7 months imprisonment.
I vary the statutory ratio and find special circumstances for the reasons given.
[13]
Endnotes
Hereinafter referred to as the "1999 Act"
Exhibit A
R v Bloomfield [1998] 44 NSWLR 734 at 740
R v Mitchell [2007] 177 ACR 194 at [27]
R v Channells (1997) (unreported, NSW Court of Criminal Appeal, Hunt CJ, Ireland and Dunford JJ, 30 September 1997)
R v Douglas [2007] NSWCCA 31 at [12]
1999 Act s 21A(2)(c)
R v Esho [2001] NSWCCA 415 at [142]
[2008] NSWCCA 89 at [28] (Bell JA and Barr J agreeing)
[2008] NSWCCA 209 at [160] (Beazley JA, with whom Mc Callum J agreed)
[2008] NSWCCA 209 at [162] (Beazley JA, with whom Mc Callum J agreed)
[2005] NSWCCA 268 at [123] (the Court)
The victim in his statement enunciates his difficulties with driving.
1999 Act s 21A(5AA)
R v Mitchell [2007] 177 ACR 194 at [29]
R v Buddle [2005] NSWCCA 82 at[11]
R v Mentez [2002] NSWCCA 415 at [16]
[1999] NSWCCA 214 at [29] (Spigelman CJ with whom Greg James J agreed)
R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 1999 Act s 22
1999 Act s 21A(3)(e)
Aoun v R [2007] NSWCCA 292 ( see offender's solicitors submissions at [23])
1999 Act s 21A(3)(i)
1999 Act s 21A(g)-(h)
Offenders' solicitors written submissions at [25]
[2010] NSWCCA 128
[2012] NSWCCA 197
R v Dungay [2012] NSWCCA 197 at [40]
[2017] NSWCCA 119 at [47]-[49] (Harrison and Schmidt JJ agreeing)
Hona v R [2016] NSWCCA 119 at [105]
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Decision last updated: 29 November 2017