R v Rampling

Local Court of NSW|2018-04-27

Judgment

The defendant is before the Court to be sentenced in relation to a charge of recklessly inflict grievous bodily harm. The charge is brought pursuant to section 35(2) of the Crimes Act 1900 (NSW). The maximum penalty on indictment is imprisonment for 10 years. In this matter according to the court record the Director of Public Prosecutions (DPP) refused to accept the matter for consideration of an election to proceed on indictment. As a consequence the Police Prosecuting Branch has carriage of the prosecution as a summary matter.
As a summary prosecution that falls within Table 1 of Schedule 1 of the Criminal Procedure Act 1986 (NSW), section 267 of that Act limits the maximum penalty to imprisonment for 2 years. The fact that the DPP declined to consider proceeding against the defendant on indictment does not mean either that the objective seriousness of the offence is correspondingly diminished or that the conduct of the defendant within the commission of the offence is to be regarded as lower level offending. The decision in R v Doan (2000) 50 NSWLR 115 establishes that the objective seriousness of an offence is to be determined by reference to the legislative provision not the jurisdictional limit.
Secondly it is a fiction to conclude that any decision by the DPP not to elect to proceed on indictment is an endorsement of a level of criminality that would attract no greater penalty within the District Court than one which would otherwise fall within the jurisdictional constraints of the Local Court. From experience a number of decisions not to proceed on indictment leave the Local Court with a lack of adequate sentencing power to properly deal with the matter before it.
To his credit when the matter first came before the Court the defendant indicated the matter would result in a plea of guilty to the charge. He also indicated an intention to bring an application for the charge to be dismissed pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). It is appropriate to note that this application was refused by me on 27 April 2018 at which time the plea of guilty was formally entered before the court.

The Facts

At the time of offending the victim, Naoimh Nelligan and the defendant had been in a relationship for some 5 months. There is nothing to suggest that the relationship was anything other than one of affection and mutual consideration. On 24 February 2018 Ms Nelligan and the defendant attended what is described in the facts to be a "family function".
At about 9.45pm the victim, her two children aged 5 and 3 years old, and the defendant returned to the hotel at which they were staying. According to the victim the defendant was well affected by alcohol and began questioning her about their relationship. Ms Nelligan said the defendant became increasingly argumentative and irrational so she attempted to cease the conversation, telling the defendant, inter alia, that she had to look after the children. This conversation took place as the victim and the defendant were standing in the doorway of their hotel room.
Ms Nelligan said the accused grabbed her around the neck using "great force" and pushed her against the back of a brick wall "smashing the back of her head against the concrete wall causing immediate pain. The victim said the defendant then grabbed her from behind pushing her head downwards with great force whilst in the same motion raising his knee, striking her in the facial region. The force of the blow was so great that it dislodged and fractured several teeth from the victim's mouth and also caused a laceration with heavy bleeding.
According to the facts tendered the accused then left the victim at the hotel with her children and caught a taxi. Police attended the hotel after a call from management and found the victim sitting on the ground holding a blood soaked towel to her face. The facts sheet states "it was evident that she had been assaulted and a number of her teeth had been knocked out." A search located a dislodged tooth on the floor. After the attendance of ambulance officers the victim was conveyed to Bowral District Hospital. From that location she was conveyed to a major trauma hospital for specialist treatment, spending 4 nights in hospital.
On 25 February 2018 the accused was arrested and cautioned. He said to police that he remembered leaving the function but had no memory of what took place thereafter, his first memory being waking up at his home address. Photographs tendered with the statement of facts graphically depict the swollen face of the victim and the fact that teeth that would ordinarily be at the top of her mouth were missing completely or broken. Documents tendered without objection and relating to specialist dental care confirm the significant damage to and loss of the victim's teeth requiring significant prosthodontic intervention and a financial cost in excess of $30,000 for professional management and remediation of the damage caused by the defendant. The extent of the damage also demonstrates with clarity the reality that the degree of force applied by the defendant in striking the victim in the face with his knee was considerable.

Subjective Factors

The defendant is 38 years of age. He is unmarried and after this event, unsurprisingly, no longer in the relationship. His previous marriage ceased after 10 years although he and his former wife remain close and supportive of each other. He resides alone and is the father of two children aged 7 and 5 years old, with whom he has custody each fortnight. He is employed in a trade as a sprinkler fitter and is regarded by his employer as an excellent employee.
The psychological report dated 19 April 2018 tendered in relation to his unsuccessful section 32 application describes the offender as a person with a former habit as a binge drinker but one who, over the years, moved to being an occasional light drinker. As a juvenile he reported being diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) for which he was prescribed medication for a period of 3 years. The report also indicates that the offender suffered from depression following his divorce from his wife in 2014 and was prescribed medication for a year by his general medical practitioner. The psychological report prepared by forensic psychologist, Bradley Jones, suggests that at the time of the report the defendant was suffering from a major depressive disorder for which he is receiving treatment.
Curiously paragraph 33 of that report asserts: "It is difficult to provide a retrospective opinion as to whether Mr Rampling was suffering from a depressive disorder at the time of offending however based on his reported history …..was of the opinion that on the balance of probability he was in all likelihood suffering a major depressive disorder at the time of offending".
The report of another psychologist, Les Gorczynski, dated 4 April 2018 opines: "It is difficult to ascertain factors in this offence due to 1. Lack of memory of the event 2. Exhibits stability in most areas of Stephen's life 3. Nil indications of problems of excessive alcohol use 4. Nil anti-social personality indications".
None of the opinions suggested are predicated on anything other than the version of events provided by the defendant, tempered as it must be by the acknowledgment on his part that he has no memory of the offending behaviour. The defendant's previous history suggests intermittent episodes of depression, the last of which appears to be associated with the breakdown in his marriage in 2014. These were apparently well managed by a short period on medication.
Searching for an explanation as to why he suddenly exploded into violence it is not surprising that an offender would look outside himself for an explanation that might appease his conscience for his unconscionable act. The weight to be given to speculative conclusions which are problematic in terms of their reliability has been recently addressed in the Court of Criminal Appeal.
In Imbornone v R [2017] NSWCCA 144 at [57] the Court observed: "Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court should, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight".
Absent any evidence to support it the suggestion that the defendant was affected by someone spiking his drink is to be ignored. Again this appears to be more an explanation to ease the mind of a defendant looking for an answer to the question about how he could possibly act in the way that he did. It is also a proposition that is put in an endeavour to reduce the level of moral culpability in the commission of the offence. I reject it as a factual consideration and in so doing there is no impact that mitigates the level of moral culpability.
It is just as arguable or probable that the ferocious violence exhibited by the defendant is the product of the disinhibiting effects of the excessive consumption of alcohol. There is no shortage of episodes of unacceptable violence which have an association with excessive consumption of alcohol that confront courts at all levels of jurisdiction and the Local Court in particular.
I accept that the defendant's conduct is out of character. Although he has on his criminal antecedents an entry for an act of violence in 2006, apart from confirmation of his guilt for that offence there is no conviction recorded. It is reasonable to conclude the offence was towards the bottom of the range of objective seriousness. The lack of a conviction means that from a sentencing perspective the defendant remains a person of otherwise good character. The references tendered on his behalf prima facie confirm this assessment.
This being so the Court can come to the conclusion that the conduct in question is out of character and as a corollary there are good prospects of rehabilitation. Each of these considerations operate to mitigate penalty in accordance with section 21A(3) of the Sentencing Act. Such is also the case on the issues of contrition and remorse.
Despite a lack of memory regarding the conduct the subject of the charge the defendant, to his credit and consistent with both the fact and timing of his plea has taken responsibility for his conduct viewed entirely from the perspective of the victim and the prosecution facts. The Court accepts his statement to the forensic psychologist Bradley Jones is genuine. Perhaps more cogent is his handwritten letter to the court wherein, inter alia, he states: "I am truly (sic) sorry for what happened that night. I don't understand or even remember what happened but from the photos I have seen and the charges laid I have to take full responsibility and any punishment that comes my way".

The Sentence

Counsel for the defendant submits that the objective seriousness of the offending lies between "the top end of the low range and the bottom end of middle range". In support of that submission he relies on observations made in Blackwell v R [2011] NSWCCA 93 at [110] and [119] regarding the objective seriousness assessed in those proceedings, viz at mid-range. It is noted in passing that by a majority the appellate court quashed the original finding by the jury based on misdirection from the trial judge and ordered a new trial.
In Blackwell the victim suffered the permanent loss of an eye when attacked with a glass by a drunken patron in a hotel. Her Honour at first instance imposed a minimum sentence of imprisonment of 6 years with a total sentence of 9 years. Such sentence was imposed in recognition of the fact that a sentence imposed in the District Court for this type of offence is one subject to a standard non-parole period of 7 years. Although the Local Court is excluded from considerations in relation to standard non-parole periods by virtue of section 54D(2) of the Sentencing Act, and allowing for the fact that the verdict was overturned on the basis of a jury misdirection, it cannot go unnoticed that the sentence imposed was one significantly greater than the capacity of this Court to impose for not greatly different offending.
Although there is a difference in degree between the loss of sight in an eye and the damage caused to the victim in this matter this is not to undervalue the long term effects to the mouth and teeth of the victim. The dental report notes that there is likely to be a series of ongoing treatment and dental management issues involving the victim for an indeterminate period of years to come. It is not the case that the damage caused by the defendant is somehow to be regarded as transitory. Proposed and accomplished dental repair is in part cosmetic but this does not detract from the reality that the loss of teeth whether by avulsion due to the degree of force applied by the defendant or removal as a result of irreparable damage in the same act, is permanent. I do not agree with counsel for the defendant that this offending falls within the lower range of objective seriousness. It is the view of the Court that it falls within the mid-range category of offending and is to be sentenced accordingly.
The Court record notes this matter was rejected by the DPP as a matter appropriate to be dealt with in the District Court where the full range of sentencing powers referable to the offence would have been available. Minds may differ, however it is the view of this Court that this decision is a moot point. Objectively it is my view the appropriate sentence for this matter is one that would exceed the jurisdictional limit of the Local Court. Having made that observation it is not for the Court to question the motives behind the decision by a state organisation to choose a lesser jurisdiction bringing with it lesser sentencing outcomes when Parliament has vested authority in that organisation to make just such a decision. It would only be where such a decision would be an affront to the administration of justice of such significance to warrant an unarguable expression of judicial concern. But I digress.
Bluntly put this offending is offending in a domestic violence context and also in the context of drunken behaviour leading to an act of extreme violence. The impact of the crime on the victim, and the community, is obvious. In this regard so far as the victim is concerned I do not include the physical injuries because they are embraced within the element of the offence. I do however note the concerns of society in relation to violence against women and the legacy of memory of becoming yet another victim of unjustifiable violence that the victim will carry with her through her life.
The entirety of the purposes of sentencing set out in section 3A resonate in relation to these proceedings, particularly general deterrence, adequacy of punishment, accountability and denunciation of the crime.
Significant cases of domestic violence call for significant responses from the judiciary. As was said by the High Court in Munda v Western Australia [2013] HCA 38 at [55]: "A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim".
Similarly in relation to alcohol fuelled violence Hoeben J said in Pattalis v R [2013] NSWCCA 171 at [23]: "Over recent years, the incidence of such offences, particularly when associated with the excessive consumption of alcohol, has been all too frequent. Such offences are a cause for grave disquiet and the community is understandably and frustrated at their occurrence".
The attention of the Court in sentencing submissions was drawn to the decision in R v Hamid [2006] NSWCCA 302. This decision collects many of the decisions of the Court of Criminal Appeal dealing with society's vexed issue with domestic violence. Reference is made within that decision to the constant statements by the Court of Criminal Appeal regarding the need to emphasise general deterrence and to recognize the impact of the crime on the victim. The citation of the decision of R v Fahda [1999] NSWCCA 267 at [70] of Justice Simpson's comments - "Domestic violence is a problem of considerable proportions in this community and the courts must be strong to ensure that it is adequately punished" - is a statement of principle that cannot be ignored. So too is the summary of approaches set out in the decision in R v Edigarov (2001) 125 A Crim R 551at [41]: "...Such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence".
It is clear from these comments that the Court regards the section 5 threshold crossed and that there is no other alternative in terms of sentence than one of imprisonment. That the defendant has no recollection of the event and surmises that something external, such as unestablished drink spiking, may represent part of the struggle for an otherwise well respected community member to find an answer for conduct that is in his own mind inexplicable. However it does not detract from the reality of the crime, both in its physical representation and the immediate and long term impact on the feelings of the victim, as brutal.
In my view the appropriate sentence in this matter with the full range of sentencing powers available would be 2 years and 6 months. This would be after the application of subjective factors and the reduction representing the utilitarian value of the plea. Such a sentence is not capable of being applied for a single offence in the Local Court. To apply the discount again against the 2 years sentencing power that is available would be to reward the defendant twice. This leads the Court to the view that a sentence of two years is the appropriate total term.
This is not a matter in my view that warrants consideration of a sentence to be served by way of an Intensive Correction Order. General and personal deterrence, denunciation and the impact of the crime on the victim and the community considered in the context of a significant number of appellant decisions of the approach to be taken in relation to serious violence inflicted on women all point towards a sentence of full time custody.
There being nothing put that persuasively addresses the issue of special circumstances there is no reason to disturb the statutory relationship between the non-parole period and the term of the sentence.
The defendant is convicted and sentenced to imprisonment which consists of a non-parole period of 18 months and a total term of 2 years dating from today. The defendant will be eligible for parole on 2 January 2020. The total sentence will expire on 2 July 2020. Judge Henson Chief Magistrate 3 July 2018

Note: The sentence appeal in this matter was dismissed by the NSW District Court on 11 September 2018; the 2 year term of imprisonment was confirmed, however the non-parole period was varied from 18 months to 13 months following a finding of special circumstances. 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: 03 October 2018

Mental Health (Forensic Provisions) Act 1990(NSW)

Crimes Act 1900(NSW)s 35(2)

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