Mr Rosamond, in respect of the offence of recklessly inflict grievous bodily harm, I propose to impose a sentence of imprisonment of one year ten months. I propose to refer you for assessment for your suitability to serve that sentence by way of an Intensive Correction Order.
In relation to the offence of assault occasioning actual bodily harm upon your former wife, I propose to release you on a conditional release order pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 for a period of two years.
The prisoner, Geoffrey Miles Rosamond appears today before me in relation to two offences to which he pleaded guilty in this Court in June 2018. He pleaded guilty to count 2 in the indictment presented alleging that he on 10 January 2015 at Mosman, in the State of New South Wales, did recklessly cause grievous bodily harm to Jeremy Best. I will refer to Mr Best, if he does not mind as the male victim from herein after.
He further pleaded guilty to a charge of assaulting Helen Rosamond, his then wife, occasioning to her actual bodily harm on the same date at the same place, and I will refer to her as the female victim later in the proceedings.
The maximum penalty for the offence of recklessly causing grievous bodily harm is ten years' imprisonment. There is a standard non‑parole period of four years' imprisonment, pursuant to s 35(2) of the Crimes Act 1900. In respect of the offence of assault occasioning actual bodily harm, the maximum penalty is seven years' imprisonment; there is no standard non‑parole period.
The matter came before me on 14 December 2018. It was the very last day of term. Why new sentence matters were being listed on the last day of term is completely beyond me. I was already part heard in quite a large number of matters, in fact I sentenced either three or four people on that very day in respect of matters that I had heard either that day or in the days before that. I knew nothing about the matter when it came before me on the last day of term. The proceedings were relatively quick and in the sense that the proceedings, apart from the reading of victim impact statements, proceeded on the basis of documentary material. The prisoner did not give evidence.
Unfortunately for everybody with an interest in the matter, I could not sentence the prisoner that day. I had no time, let alone the time to consider the material that had been tendered, and there are a number of complicated issues to address in relation to the material that had been tendered. As it turned out, I was about to be away from Sydney for six weeks on leave and then my return to work required me to go to Coffs Harbour to do a very busy criminal sittings there. So I had to adjourn the matter until after my return from Coffs Harbour. Hence what might appear on the record to be an inordinate delay since the matter came before me.
I am just quite flabbergasted that this matter, like all matters where pleas are entered, it was not assigned to a judge on the day of plea for it to be case managed and to be dealt with more expeditiously than this matter was. It is a constant concern to me to see matters being adjourned for months and months and months leaving everybody in abeyance for reasons which I do not understand. There must be a way of pleas being entered, even if they were entered without a judge allocated for the trial, being assigned to available judges for those judges to take command of the matter and deal with it expeditiously. Rather than having the matter stood over for six or seven months as is required, if the matter is not ready to proceed on a particular day without a judge allocated.
The sorry course of this matter, of course, is reflected in other aspects of the case which I will come back to. It would have been noted that I pointed out that the offences were committed on 10 January 2015. My understanding is, from the Crown's cover sheet, the prisoner was not arrested until 30 September 2015. I just do not understand how that can be so. The identity of the prisoner was no mystery to anybody. I realise there was a delay in making complaint to the police and I am mindful of what the facts say about the prisoner approaching his wife in the terms set out in the agreed facts not to take the matter to the police, in the context of their marital circumstances. But a delay of eight months for the charges to be laid is just inexplicable. Furthermore, there are other complications to be reflected in my consideration of the discount to be given for the utilitarian benefit of the plea of guilty.
I was provided with a letter from the defence. It apparently is a letter prepared by the then solicitors for the prisoner, dated 20 June 2016. On that date when I understand the matter was still at the Local Court about to be the subject of committal proceedings, the prisoner's legal representatives offered to the prosecution the opportunity for the prisoner to plead guilty to the charge that he eventually pleaded guilty to, pursuant to s 35(2) Crimes Act . Also, I note in the context of considering an appropriate discount, if a discount is required in respect of the order to be made in regard to the assault occasioning actual bodily harm matter, I note there was an offer to plead guilty to common assault, pursuant to s 61 Crimes Act 1900 in respect of the assault upon the prisoner's wife or then wife. I note the offer to plead guilty to the charge that the prisoner pleaded guilty to almost two years later, was not taken up at the time. Which seems to me to be in the circumstances of the matter set out in the agreed facts, completely ill advised. Thus, a two year delay occurred through no fault of the prisoner in respect of that matter. I note of course the Crown did not accept the offer for a plea of guilty pursuant to s 61 Crimes Act 1900, and ultimately the prisoner pleaded guilty to an offence of assault occasioning actual bodily harm as there was proven actual bodily harm caused by the assault admitted by the prisoner.
I will come back to the conclusions I have reached about appropriate discounts to be given later, but I refer to that correspondence and what it reflects in the chronology of events to point to what I remember is totally unacceptable delay. Some of it, of course, is not the fault of the parties caught up in the delays that are occasioned, both in the Local Court and the District Court. But other delay can be seen to have arisen from the failure of the Crown to accept what it ultimately accepted before the matter went to trial. The matter would have been resolved two years ago or even two and a half years ago if common sense had prevailed.
Be that as it may, in the context of considering the offence of recklessly cause grievous bodily harm to the victim. I note the standard non‑parole period this will require consideration of Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999 (herein after to be referred to as "the Act") and particularly ss 54A(2) and s 54B(2) of that Act, specifically 54A(2) provides:
"For the purposes of sentencing an offender, the standard non‑parole period represents the standard non‑parole period for an offence on the table to this division Table that taking into account only the objective factors effecting the relatively seriousness of that offence is in the middle of the range of seriousness."
Section 54B(2) provides:
"The standard non‑parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offending without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender."
These statutory provisions now prevailing reflect the consequences of the decision in R v Muldrock [2011] HCA 89 and came into effect after that judgment had been absorbed by government.
With regard to the facts of the matters, there is an agreed statement of facts. There are particular details and that agreed statement of facts I need to place on the record. The prisoner and the female victim were married in February 2006, having been in a relationship since 2003. Since April 2013 they resided at Upper Spit Road, Mosman with their two sons. On 9 January 2015 apparently into the early hours of 10 January 2015, the prisoner and his wife hosted a party at their home to which apparently the male victim was invited. That commenced about 2pm and continued into the early hours of the morning. Most guests had left by 3.30am. It was at that time as the party was finishing up that the female victim left the house and walked with the male victim, a mutual friend of both the prisoner and the female victim along Upper Spit Road, towards Spit Road in order to find a taxi.
The agreed statement of facts says that while they were outside a particular address they exchanged their goodbyes and shared a kiss on the cheek. This kiss became "intimate". The female victim was facing back towards her house at this time and saw the prisoner marching angrily towards them. He had his arms up, his muscles were flexed and he was walking hurriedly. He was only wearing pyjama shorts and he was bare footed. The female victim said to the male victim his name, to indicate that the prisoner was approaching. The male victim turned around and saw the prisoner when he was about one or 2 metres away.
Without saying anything, the prisoner walked towards the male victim and punched him in the left eye causing immediate pain. The prisoner shoved the female victim with both hands causing her to fall to the ground and she "scrambled away". The prisoner continued to punch the male victim to both sides of the head. He, the male victim, tried to turn away and received several punches to the back of the head causing him to fall to the ground. The prisoner kicked the male victim with his bare foot a couple of times to the left side of his torso while he was on the ground. The female victim yelled out, "Geoff, stop, you are hurting him". The prisoner turned towards the female victim and advanced on her, standing over her. He slapped her to the right‑hand side of the face forcefully. She felt immediate pain and fell on her right side, at which point the prisoner, again, barefooted kicked her in the left thigh. She lay on the ground.
The facts state that she felt helpless and afraid for her safety. As the male victim was standing up, the prisoner backed towards him and then punched him a number of times to both sides of the head, causing him to fall to the ground again and the prisoner again kicked him in the left side as it is described in the agreed facts.
The prisoner then ran down the street back towards I take it to be, his own home. The female victim heard the prisoner shout out these words: "No, not with him". She stood up and began walking back towards the house. She was in pain and crying. The male victim crawled away on to the nature strip and apparently passed out, although I accept the prisoner was not aware of that fact. He woke up about 30 to 45 minutes later and got a taxi and went home.
The agreed statement of facts set out some aftermath of the assaults, the detail of it I need not dwell upon. The parents of the female victim heard the prisoner shouting and he was described as "yelling and screaming" when he returned to the house. He ended up leaving the house and going down to what was described as "the family's boat" which was moored at the Spit Bridge. The female victim was distraught. She was, "shaking, crying and was afraid". Her hair was matted. She had a mark on her left cheek and she appeared to be "in a lot of pain". She complained, "Geoff has just attacked me and Jeremy". She asked her father to go and check on the prisoner. He went down to the boat. The prisoner was asleep. He noticed the prisoner's left hand and left foot were swollen up. He, the prisoner, was woken up to see if he was okay and then he fell back to sleep.
There is no doubt, on the evidence available to me that he was heavily intoxicated. The extent of the intoxication of the female and male victims, not that is of any great relevance, is not known to me.
The father of the female victim woke up at about 7.30, 8am on the morning of 10 January and returned to the house. The injuries of his daughter he said were more prominent. She had a bruise on her chin and grazing to the left side of her face. She reported she had bruising to the left side of her body, especially around her hip area.
The prisoner spoke to the female victim when she was escorted down to see him on the boat. He said these words: "I'm sorry, can you forgive me. I'm sorry for hurting you. I love you". He asked her not to call the police asking her to think about the children. She was obviously and fairly conflicted about what to do and they returned to the house. As a consequence of the prisoner's assault as described above, the prisoner's left hand and wrist was bruised and swollen and his left foot was swollen.
The male victim sent a message to the female victim later that day asking how she was, indicating that he proposed to report the incident to police today. She replied that she was feeling "a bit bruised" and asking not to go to the police. The male victim took a number of photographs of his left eye showing bruising to his eye. The facts state that therein after the marriage between the prisoner and the female victim began to break down. The female victim continued to complain of pain in her left hip area. There has been no specific medical evidence produced to the Court about her health.
Finally the prisoner and the female victim separated. Mr Best provided a statement to police on 4 July 2015. The female victim provided a statement on 2 September 2015. The male victim attended Sydney Eye Hospital on 15 January 2015. He was diagnosed to have firstly a blowout fracture in the left orbital floor with a collapse of tissue into the maxillary sinus. He had significant restriction in the elevation of his eyes. He had ocular damage resulting in traumatic mydriasis, that is a rupture of the sphincter of the iris resulting in permanent pupil dilation; had damage to the infra orbital nerve resulting in paresthesia or a loss of sensation in the cheek, extending down into the incisor and the front teeth; had damage to the posterior segment of the eye resulting in "floaters". He also suffered bruised ribs and a black left eye. He had a chipped left tooth.
He underwent surgery on 23 January to correct the fractured orbital flaw. The prolapse of tissue was confirmed during the surgery as was the fact that the fractured site needed to be cleared of impacted tissue. There were various steps taken during the course of the surgery to prevent further prolapse of tissue. He was described as "making a good recovery following surgery but continued to experience double vision and trouble elevating his left eye significantly".
On 6 February 2015 he underwent further surgery for revision of the fracture site. There was said to be some entrapment of fibres of fat which were noted and released. His double vision was resolved in the straight ahead horizontal and down gaze positions. There was some improvement in his eye elevation and improvement in his paresthesia. However, he continues to have the following issues associated with his injuries, double vision on elevation beyond 12 degrees, I take that to be on upward movement of the eye. He has light sensitivity which is primarily a consequence of the dilated pupil and the ruptured sphincter of the iris. He has intermittently experienced the floaters under different lighting situations which are not present at all times, but annoying when present. He has some paresthesia on the left side of his face, particularly in the lip.
The facts state that due to the continued restricted movement in his left eye, he may require additional surgery in the future. In this regard in his victim impact statement, which I will come to in a moment, he notes money that he spent on surgery. I understood from the proceedings when they were before me on 14 December that the prisoner had either offered to or was forwarding a cheque for those "out of pocket" expenses. I would understand, not that it is particularly relevant to this sentencing exercise per se that the victim is pursuing his rights of compensation, whether at common law or through the statutory scheme is neither here nor there.
I understand from today's proceedings that a cheque had been proffered for the payment of those out of pocket expenses identified by the male victim in his victim impact statement. But the money has been returned. In fairness to the male victim, he or his lawyers no doubt, are uncertain as to the implications of accepting the payment of money in the context of not having received a compensation order.
The prisoner was born in May 1968, I would thus calculate him to be 50 years of age at this point about to turn 51. I would understand thus he was, on my calculation 46 years of age at the time of the commission of the offences that I am concerned with. He has a finding of guilt in the Local Court which was appealed to the District Court, but the appeal was dismissed in respect of driving in a manner dangerous in 1987, over 30 years before now and slightly less than 30 years before the commission of the offence. I regard it as not a significant matter in the context of the offending with which I am concerned and in the context of the evidence that is been provided to the Court.
Two victim impact statements were tendered and they were both read by the victims, as was their entitlement. In respect of the material within the victim impact statements there are no aggravating factors identified beyond those that may be identified from the agreed statement of facts. In relation to the consideration of victim impact statements, the Court may receive and consider them, and I do receive them and consider them. However, there is a range of authority dealing with the limitations upon the value of victims, particularly in respect of, as I said, consideration of aggravating factors that may be claimed within those statements. Such decisions include R v Tuala [2015] NSWCCA 8, particularly in the judgment of Simpson J at [52]. Also there is the judgment of Basten JA of the Court of Appeal in R v Thomas [2007] NSWCCA 269, particularly in [36].
In relation to the consideration of those victim impact statements, the victim impact statement of the male victim was straight forward and in line with or consistent with what might be concluded from the agreed statement of facts. In relation to the victim impact statement of the prisoner's wife or ex‑wife, that statement has to be understood in the context, as I understand it, that the female victim was very deeply wounded by the prisoner's conduct. When I say "wounded" I mean emotionally and psychologically wounded by his conduct. It must be said, however, it reflects upon another aspect of this case and that is the conduct that the prisoner admits to in his inebriated state appears to be uncharacteristic of his conduct and his relationship prior to this particular night.
In considering the extensive victim impact statement of the female victim, it is quite clear, both by reference to the way it was delivered and the detail of it, that she is conflated her feelings about the prisoner in a wider sense into what she identifies as her perceived injury from the subject charge. In my view, the detail and the length of that particular victim impact statement was disproportionate to the seriousness of harm that could reasonably be considered to have been caused by the prisoner's actions.
I pause for a moment to point out for those who are sitting in court that I have been a judge for 18 years, and I have seen hundreds and hundreds and hundreds of victims of crime in a range of circumstances. I have read and heard victim impact statements from, for example young women that have been tied up and held down and raped for hours on end by multiple men and I have a fair understanding in the range of conduct that brings matters before this Court of the harm that can be caused to others and of what could be considered as reasonably acceptable in commentary within the ambit of the particular charges that are bought to this Court.
In relation to the specifics of details of harm identified by the prisoner's ex‑wife, I regard some of the claims as exaggerations and not supported by the detail of the agreed facts or could reasonably be concluded to be consequences of the conduct of the prisoner. Many of the assertions within the statement are repetitive and as I said, appeared to me to be designed to address grievances that go beyond the subject of this particular litigation. She is obviously and I do not doubt, perhaps with good reason, bitter towards the prisoner. Both she and the male victim however, in my view, in their victim impact statement reflected almost no introspection in their statements as to their roles in the circumstances of the state of affairs with which I am concerned. Of course I am not suggesting for one moment that either victim deserved to be assaulted in any way or that there was any justification for the prisoner's conduct, either legally or morally. However, I would ask both victims to understand, that the determination of the issues that I have to resolve in this case are concerned not solely from the perspective of the view that they take of the matter.
There are a range of matters I am required to consider, as would have been self‑evident from the material presented to me in court. I understand, as I read some of the material in a general way, that there were obviously pre‑existing tensions in the marriage between the prisoner and his former wife. I understand that the prisoner's actions have precipitated the breakdown of the marriage with consequential difficulties in the care of children. I understand from what I have been told from the Bar table and had indicated to me in the written submissions, there has been a great deal of litigation in the Family Court and in the Local Court that has exacerbated or continued the hostility held towards the prisoner by the victim. There have been references made to the issue of sanctions or adverse comment in other jurisdictions made against the female victim. They are of no moment to me in the context of the consideration of this case.
It is correct to understand that the prisoner's conduct had contributed to the breakdown of the marriage. But, I am in no way able to know the extent to which that conduct did ultimately contribute to the breakdown of the marriage. Certainly, I am not here to judge the rights or wrongs of the various recriminations that may exist between the ex‑wife and the prisoner and the prisoner himself that go beyond the circumstances of this matter that could reasonably be concluded from the facts. Definitely I am not the Family Court of Australia.
There is no doubt on the basis of the agreed facts that the prisoner was aggrieved at the conduct that he observed because he must have observed what is said to have occurred as per the agreed facts. He sought, in quite an aggressive way to address that matter in the circumstances set out in the agreed facts. It would appear to me, based upon what the agreed facts state as to his reaction to what he saw and what he said afterwards, that he was particularly shocked at what had occurred and particularly shocked, it would seem, as to the particular person who he regarded as inappropriately kissing his wife. What particular aspect of what I understand on his part to be a betrayal by the male victim that caused him to say the words "not with him" I do not know. But clearly on the agreed facts the prisoner was dismayed at what he saw and greatly offended as his actions revealed.
In the agreed facts and in the victim impact statements there appears no suggestion of any previous threatening conduct by the prisoner either towards the female victim and certainly towards the male victim, despite any tensions in the marriage. I note in the context of understanding the facts of this matter that this offence committed by the prisoner against the male victim and his former wife were committed in a public street. But it was committed shortly after there had been, what I understand to be, a convivial function obviously with alcohol consumed at the home of the prisoner and his former wife not at the home of the victim.
The male victim's impact statement, as I said, sets out the effects of the prisoner's conduct largely accord with the detail that is reasonably able to be identified from the agreed facts. The injuries, of course, are serious. It would appear to me without any expert evidence to assist me, that the most damaging blow was the blow described as the blow to the eye. The description of the various blows to the back of the head and the side of the head do not appear to me to reflect in the detail of the damage, save for the paresthesia in the area of the lip which could be consistent with other blows that were thrown. I appreciate there is still continuing disability in the male victim, although there has been considerable recovery. I accept that there is a possibility of a permanent disability to some degree. One can only hope, for the benefit of the male victim in the future that there will be improvement.
The emotional involvement in the statements needs to be recognised and understood and I accept that many of the observations made in both victim impact statements are genuine feelings expressed by the respective victims. But genuine feelings, as they appear in victim impact statements from time to time, of grief and anger, desire for retribution and the like have to be assessed in the context of the Court's duty to undertake a rational objective and a dispassionate assessment of the material.
In assessing the objective seriousness of the offending in relation to the male victim, as I have indicated by reference to the provisions of the Act, I am required to make an assessment, given that there is a standard non‑parole period of where the offence falls by relation to the middle range of objective seriousness for an offence of this type. This is certainly not the least serious offence of its type, or nor could it be described as an offence at a low level of legal culpability. However, in determining this legal issue, it should be understood for those who are not lawyers that I am required to take into account a number of matters that relate to the objective seriousness of the offending only. This includes a consideration of relevant matters under s 21A(2) of the Act and any matters arising under s 21A(1) and (3) of the Act that reflect upon the objective gravity of the offending. This includes a consideration of the character of the grievous bodily harm.
As was pointed out in the helpful submissions of Mr Dalton Senior Counsel for the prisoner, and I, have had regard to all the submissions made by the parties as my various remarks will reflect, the concept of grievous bodily harm refers to a range of injury which must be understood in sentencing an offender under the particular provision with which I am concerned. Grievous bodily harm can include quadriplegia, blindness, the loss of a limb or limbs. It may include even a case of a person who is, if I can use the expression "brain dead" after a traumatic injury, but who does not die within such time as to warrant more serious charges of manslaughter or murder.
I bear in mind in relation to this matter in the context of considering other cases such as for example R v Merillo [2017] NSWCCA 173, a Crown appeal in respect of an offence contrary to the same provision, s 35(2) Crimes Act, that there was no weapon used. Of course the use of a weapon of itself has to be seen in its particular context. The weapons used by the accused were his fists and of course his bare feet. I bear in mind in relation to the use of his feet, that one can in a particular case, have regard to, as a matter of aggravation that a person was wearing particular footwear that would be more likely to exacerbate any damage that was occasioned by kicks or use of feet against the body of another person. Here, as I said, no such footwear can be identified.
In relation to matters that in my view are relevant to the assessment of the objective facts that arise under s 21A(3) of the Act, I have determined that firstly; the offence was unplanned. It is quite clearly unplanned. The prisoner was reacting to something that occurred literally within minutes of the attack upon both people. In my view, in the context of the meaning of the word and the legal principles that relate to the matter, the prisoner was relevantly "provoked" pursuant to s 21A(3)(c). In the context of considering the issue of "provocation" I realise that provocation may have a specific meaning in circumstances where someone is charged with murder. A person relevantly provoked may, pursuant to s 23 Crimes Act 1900, have a charge of murder reduced to manslaughter by plea arrangement with the Crown or by verdict of a jury.
Interestingly, as was pointed out by learned counsel for the prisoner, in the decision of Ziha v The Queen [2013] NSWCCA 27 where the Court was not discussing provocation as it arises under s 21A(3) of the Act, but was dealing with provocation in the context of a defence or a partial defence raised in respect of a charge of murder, at [47] where there was a discussion of what may constitute provocation in the context of murder, the Court said this:
"As indicated by Barwick CJ in Johnson v R [1976] HCA44: 'the importance of the fatal act having been taken in the heat of passion may...be related...to whether the provocative act or situation is such as would lead an ordinary man to lose self‑control so as to do an act of the kind of the fatal act done by the accused'."
In that particular case the Court held that no issue of provocation arose because the matter that provoked the accused in murdering the victim arose simply from the fact that he saw the victim's car at a particular location and that the lights in the premises being out. He believed something significant was happening within the premises such as to supposedly provoke the accused to kill the victim. I note the Court of Criminal Appeal observed in its observations:
"The present is a far cry from a case where an accused has suddenly encountered a spouse in compromising circumstances."
Of course there will be argument I would expect in the case of a murder allegation as to whether an "intimate kiss" is a "compromising" circumstance. But, as I said, the circumstances of this matter taken from the Agreed Facts reflect upon, notwithstanding the helpful submissions of the learned Crown Prosecutor that I should not find provocation as mitigation, that the accused has established on balance that there was relevant provocation for the purposes of taking that into account as a mitigating factor. Of course, I accept that the provocation was not extreme and I accept, as with all relevant mitigating and aggravating factors under s 21A of the Act there will be degrees of the presence of such matters.
It is clear, notwithstanding his intoxication that the prisoner responded to the circumstance where he saw his wife kissing a person who he regarded as a friend in circumstances where that male person had been the subject of his wife and his hospitality only a short time before. I accept, as I would understand it from the Agreed Facts, that what he saw was circumstances that were not only unexpected but were offensive to him. Of course, I hasten to say, both the victims were absolutely free to do as they wish. But of course when we do as we wish we run the risk of course of offending others, whether we intend to or not. The bonds of matrimony do not make illegal conduct that threatens the character of the relationship.
Further, in respect of objective gravity of the offending I note pursuant to s 21A(1) that the offending was clearly uncharacteristic and this is also by reference to consideration of mitigating factors that are personal or subjective to the prisoner. In my view this is an additional matter that goes to the consideration of the objective gravity of the offending.
There is absent in this matter, for example the aggravating factor of the prisoner having a criminal history of violence towards others or particularly towards his wife which would not enable the Court to determine this conduct was uncharacteristic. In fact, it is quite clear on the facts of the matter that the conduct was impulsive. I appreciate in the assessment of the objective gravity of the offending, intoxication is a relevant matter to take into account.
Intoxication is not a mitigating factor. Drunks just cannot go around punching whoever they wish to punch. In many circumstances intoxication will be an aggravating factor in sentencing offenders. However, it should be noted in this matter by reference to the facts as I understand it, the prisoner's intoxication was entirely "legal". He would have been intoxicated in what I would have understood to be convivial circumstances which is not an uncommon situation, particularly around the Christmas/New Year period when people are socialising more frequently than they may earlier in the year.
Certainly this is not a case of a person as we see from time to time getting intoxicated simply to raise Dutch courage in order to confront somebody with whom that person has a grievance. There is no evidence of any outstanding grievance by the prisoner towards the male victim, nor is it a case of perceiving a grievance and then deliberately drinking alcohol and festering over the issue before acting in revenge whilst intoxicated. Thus, having regard to all those features and noting what was said in the assessment of the seriousness of the offending in Merillo, where there was the use of the glass to smash into the eye of a person and in the decision of Dungay, another case involving by way of Crown appeal a consideration of s 35(2) Crimes Act 1900, I regard the offending of the prisoner towards the victim, even allowing for the character of the injury and its continuing effect upon the victim to be below the middle range of objective seriousness.
The offence of assault occasioning actual bodily harm, having regard to the evidence of injury is at the lower end of the scale of offences of this type. Assault occasioning actual bodily harm can constitute a range of conduct, both by reference to the character of the assault and the character of the bodily harm. I take into account the circumstances in which the bodily harm was inflicted; the initial assault upon the victim was in the context of pushing her away. The prisoner returned to the victim, I appreciate, to assault her again. It is not a matter that has escaped the Court's attention that the offence is a domestic violence offence. But it is the case in this matter, given the events that unfolded, that the prisoner's violence was clearly primarily directed at the male victim.
The application of force to the female victim caused what I regard as minor injuries in the scheme of things as contemplated by the section. The degree of force used by the prisoner against the female victim was considerably less than used against the male victim. In consideration of course of the offence against the male victim, I have also taken into account the submission of the Crown that the offence was not confined to just one blow. There were a series of blows in the scheme of things. But that is to be seen too in the context of the prisoner's state of dress and what I would see for want of a better word, the prisoner's state of "unpreparedness" at least in his presentation for physical conflict with the male victim; all consistent with of course, the unexpected character of the provocation that arose.
I have a pre‑sentence report from Community Corrections. I pause to just out one matter in relation to this aspect. Such is the considerable delay in relation to the disposal of it that between the time the prisoner pleaded guilty and the time the matter came before me, the Act had been amended to vary the manner in which Community Corrections may make assessments for the suitability of people to be subject to particular orders of the Court, particularly orders pursuant to s 7 of the Act relating to Intensive Correction Orders and in relation to orders under s 8 of the Act which may require the ordering of the service of community service as a condition of the restraint upon the particular prisoner's liberty.
Thus, in the context of what I foreshadowed to the prisoner earlier as the outcome of this matter, this will be a rare matter where I will need to adjourn the proceedings in respect of the ordering of the Intensive Correction Order to await a relevant assessment. It may be that the prisoner may be unsuitable. In which case I would need to then consider the disposition of fulltime imprisonment. I point out in the context of what I foreshadowed, of course, that I concluded by reference to s 5 of the Act that a term of imprisonment must be imposed in respect of the offence pursuant to s 35A(2).
The report from Community Corrections that was ordered in this matter which is the older style assessment report confirms a number of issues which I find from the evidence. The prisoner has continuing affection for his sons of the marriage with his former wife. He has another son who lives in New Zealand. Since the breakdown of the marriage he has taken steps to involve himself in the community, both with the Manly Surf Club, his involvement with the church in Manly and his work in respect of assisting people less fortunate than himself in the Manly area. I accept, particularly in the context of it now being four years since the commission of the offence, that the prisoner has taken positive steps in his rehabilitation and evidenced that in the manner reflected in the pre‑sentence report and in the histories he has given medical professionals.
I accept that with the exception of some periods, due to illness and the like, the prisoner has usually been in employment and had significant professional responsibilities. As I understand it at the time of the breakdown of his marriage he and his wife had been involved in business affairs and they had, in fact, it would appear to have been either partners or at least associated in certain business activities which no longer involve the prisoner.
Factors related to the offending obviously include his intoxication and his reaction to the relationship for the connection between the prisoner's wife and the male victim. The prisoner reflected upon his consumption of alcohol. The facts are in this matter, on the evidence available to me, that the prisoner has at some time shortly after the commission of the offence had given up drinking alcohol and proposes to remain abstinent from alcohol in the future which is a significant matter, at least in the subjective sense, in his favour.
The prisoner in his consideration of the matter and in discussion with Community Corrections took responsibility for his conduct. He denied that he was a violent person by nature and other people have written references to indicate that violence is uncharacteristic of him.
So far as his attitude to the offending is concerned, the Community Correction officer concluded that he was able to consider the harm that he had done to the victims. He expressed his regret. I note his apology to the female victim later in the morning when he either sobered up or at least had a sleep. Although I am also mindful of the fact that that apology was in the context of asking the victim not to take the matter to police. I can understand as a natural reaction, without seeing it as a sinister matter, that the prisoner might, without knowing the full extent of the damage that had been done to the male victim, request the victim not to take the matter to the police. I note the victim's hesitancy. I make no criticism of her for that.
The truth of the matter is, victims of domestic violence should speak out. Whether it is a matter of ensuring protection of the female partner particularly and the children, or whether it is trying to maintain the relationship, by having the aggressive partner seek professional assistance to avoid similar events occurring in the future. The facts of the matter are that victims of violence, particularly within the family should speak out and bring the matter to the attention of the authorities so that appropriate action can occur. I have had personal experience of this as a child and I am very familiar with sustained domestic violence creating terrible atmosphere of fear and dread that something worse than what has already occurred occurring in the future. This, to my mind, however, notwithstanding the victim impact statement of the female victim, is far removed from the situation that I have just referred to as a matter of personal experience.
The prisoner is assessed at being at low risk of reoffending which seems to me to be a reasonable consideration of the matter, both by reference to his criminal history, his prior lifestyle as it is revealed in the evidence and what he has done since the commission of the offence. Notwithstanding this history of litigation that has permeated its way through the Local Court and the Family Court of Australia. The Community Corrections Service assessed the prisoner has having significant family support and that is reflected in the reference from his sister and his mother, and one always approaches references from family members with some circumspection. I have never heard a mother get in the witness box, for example, and say that a son charged with or convicted of multiple sexual offences was a bad person or was a person who did not deserve to be punished. But having said that, in the context of the character of the offending with which I am concerned, the references from family members reflect upon the position that is, to my mind, established from other objective evidence.
The Community Correction Service stated significant insight into the offending behaviour and the steps the prisoner has taken not to repeat the behaviour. He is said to be unlikely to benefit from a period of supervision, but the order that I ultimately will make will require some period of supervision.
In relation to this issue of continuing treatment, and that is the correct expression, I have noted the report of Dr Farago. There are two reports, one from August 2018 and then an update from December 2018 noting in that last report that the doctor continues to see the prisoner on a fortnightly to four weekly basis. The report of Dr Farago sets out some assessment of what is thought to be his condition in the view of that particular doctor with history of the offending and other family members. He was of the opinion that the prisoner suffered from what he described as, "an Adjustment Disorder with low mood and anxiety features in 2016 and prior" now in remission. He noted positive factors as far as prognosis is concerned and these appear to accord with the evidence from other sources. The prisoner has sought treatment and attended for treatment on a regular basis.
As identified, the consumption of alcohol is an issue that he had to address. He has expressed contrition for his conduct and understanding the nature of the injuries he has caused. He has noted the circumstances in which the offending occurred. The prisoner has since developed strategies for dealing with stress, including regular exercise and other steps that he has taken. He has a strong network of support, including from a Minister of the church that he attends, who has provided a reference to the Court and his involvement in a community soup kitchen, is also a positive matter in the view of the psychiatrist.
He has maintained relationships with family members, those members with whom he can legally maintain relationships. He had no prior history of aggression prior to the offences to which I am concerned and have a history of long term employment which I have already noted.
There is a pre‑sentence report from Adjunct Professor or Associate Professor Anthony Moynham. I knew Dr Moynham when he worked for the Police Department as their resident expert on blood alcohol levels and whilst he has morphed into private practice and academia. I regard him as a respectable and well regarded expert in the field of assessing alcohol consumption and elimination and absorption rates. He came to the conclusion, having regard to the histories available to him and his understanding of the physical dimensions of the prisoner. He is a substantially built man, it is to be noted, in the context of the objective facts that apparently he is 6 foot 2 inches tall and he now weighs 105 kilograms. I do not know what he weighed particularly at the time of the offending. Allowing for what history there is of beer consumption and wine consumption, Dr Moynham was of the view that the prisoner's blood alcohol would have been close to 0.168 grams of alcohol in a hundred millilitres of blood. This is consistent with being substantially affected by alcohol which is to my mind, reflected in the facts in a range of ways.
There are a couple of typographical errors in Dr Moynham's report referring to 2010 and not 2005. I have noted his opinions in relation to the effect of alcohol upon individuals, the effect upon conversation, thought perception, the way in which it can increase aggression levels. These matters really are within at least a common understanding for the Courts and no doubt common understanding within the community. But it is pointed out that alcohol ingestion can include loss of self‑restraint and a decrease in what is described as "finer discrimination". I accept, that if the prisoner had not been affected by alcohol, there is a very strong likelihood that even if the same events unfolded in terms of what he observed, the assaults would not have happened. Mitigation by intoxication does not arise in this particular case.
Dr Richard Furst is another well respected medical professional. He is a forensic psychiatrist. He is a psychiatrist who is used by both the Crown and the defence in very substantial criminal matters and I have seen many of his reports and I have seen him give evidence on a number of occasions. What is of use about the two reports from Dr Furst is that, firstly, in his report of 17 December 2015, he gives details of his examination of a range of medical records relating to the treatment of the prisoner. It is thus in this circumstance when in this case one is considering the relevance of any conditions the prisoner suffered from prior to the offending, one is not captive to the claim of symptoms by a person that cannot be independently proven. The records that the doctor examined included records from the Northside Clinic, Neutral Bay Medical Centre, and St Vincent's Hospital. Within those records there are specific opinions expressed by particular medical professions.
What emerges from the medical histories include histories of what is described as "chronic fatigue syndrome" over an extended period of time, the existence of a condition of "bipolar disorder" in the context of the prisoner being treated with antidepressant medication, through particularly through 2012 and 2013, and also a presentation at medical facilities with expressed feelings of depression and feeling suicidal with some at least anecdotal history of depression within the family. Largely depression symptoms were said to be reactive to social "stressors".
In 2015 Dr Furst was of the view that with the medical histories and the examination of the prisoner, the prisoner's criteria at various times met the diagnosis of firstly "Bipolar Affective Disorder" and "chronic fatigue syndrome" and the various symptoms are identified in the report. He noted in relation to Bipolar Affective Disorder that it was a mood disorder, characterised by one or more episodes of abnormally elevated energy levels and mood, cognitive disturbance and one or more depressive episodes. A person can have both depression and mania occur at the same time, although usually these episodes are typically separated by periods of normal mood. Extremes of mania and depression can also lead to sometime psychotic symptoms, including delusions and hallucinations, although in this matter I am not suggesting for a moment that there was any particular manic or depressive event occurring. Certainly there is no evidence of delusions and hallucinations. There are various types of Bipolar Affective Disorder some characterised by severe mood episodes and manic episodes, the other type characterised more by depressive symptoms and less severe periods of elevation.
It is a common psychiatric condition effecting about 1% of the adult population through adult life spans. The onset of symptoms typically occurs in late adolescence or early adult life and diagnosis is based on a combination of the individual self‑report and observed behaviour. Such persons are at risk of suicide during periods of depression. It can be treated with mood stabilising medications. This report, I hasten to say, was written in the context of assessing whether the prisoner was mentally ill and whether any mental illness defence arose and no such defence arose in relation to the charges.
Dr Furst prepared a further report on 14 June 2018 in the shadow of the forthcoming trial. He had regard to Dr Moynham's report which I assume was obtained for the purpose of addressing particularly the issue in relation to count 1 in the indictment to which the prisoner pleaded not guilty, that is recklessly causing grievous bodily harm with intent to cause grievous bodily harm.
Dr Furst on his comments upon Dr Moynham's findings and makes observations that are self‑evidently correct about the effect of alcohol upon people and the loss of self‑restraint and the like. He noted the alcohol consumption has a deleterious effect on executive cognitive function on most people and also an effect upon response inhibition. He continued his view that the Bipolar Affective Disorder that has previously been diagnosed by him and other doctors in 2012 in 2013 had an underlying relevance to the offending. He believed on the basis of the combination of information, including opinions from an immunologist and neurologist that are contained within medical records that he read, that it was more likely than not that the prisoner's brain function or cognitive processes executive function and decision making as well as his capacity for self‑control were impaired by the level of alcohol he consumed which I believe is self‑evident. His capacity for "recent decision‑making was significantly impaired at 3.30am". The underlying existence of history of Bipolar Disorder as I understand it contributing in an indirect way in the context of the prisoner's use of alcohol to relieve symptoms or as a self‑curative matter.
In the submissions available to the Court reference was made to the decision of Director of Public Prosecutions (Cth) v De La Rosa [2010] NSW CCA 194 particularly in the judgment of [177]‑[178] which is set out in detail in the written submissions of learned Senior Counsel and his junior for the prisoner. In that judgment, in the context of a Commonwealth sentence matter involving consideration of constitutional issues and the like, the then Chief Judge of the Common Law Division identified from all the authorities he could gather, including significant authorities like Engert [1995], Israil from the New South Wales Court of Criminal Appeal in 2002 and Henry, then a leading judgment in relation to guideline sentencing for armed robberies, particular principles. Persons suffering from a mental illness, intellectual handicap or other disability may require less weight to be given to general deterrence in the context of them not being in an appropriate medium for the message of general deterrence.
There may be lesser weight required in relation to specific deterrence having regard to the character of the condition. A custodial sentence may weigh more heavily on that person having regard to the condition. The condition may reduce or eliminate the significance of specific deterrence. Of course he went on to say that the relevant condition need not necessarily amount to a "serious psychiatric illness" and those principles were discussed in a number of other matters that have been quoted and not otherwise quoted in learned senior counsel's principles.
One decision that I may refer to additionally to De La Rosa on this subject is the decision of Kearsley v The Queen [2017] NSW CCA 28. That was a judgment concerning a specialist doctor who sexually assaulted a colleague after he drugged her whilst purportedly entertaining her at dinner. In that particular judgment, the Court of Criminal Appeal considered the "De La Rosa" and related principles. In Kearsley the Court concluded that the existence of a mental condition of the character that Dr Kearsley suffered from, identified in the evidence, may be relevantly be taken into account in accordance with De La Rosa principles, even if the condition was not "causally" related to the offending.
Here the evidence is not entirely clear. It seems to me as I said earlier that the underlying presence of a Bipolar Affective Disorder could well be a contributing factor to the character of the prisoner's drinking habits and even his drinking on the night on question. Certainly the effect of the evidence is not of great significance in this case, but it is a relevant matter to take into account in assessing the conduct of the prisoner and also in assessing his prospects for rehabilitation reflecting, upon, the steps he has taken to seek assistance and treatment.
In my view, in this particular matter, the conditions that are identified for example by Dr Furst and by the treating doctor do not require a greater weight to be given to his specific or personal deterrence. They permit, as some slight lesser weight to be given to the weight to be given to general deterrence. But, as I said, by reference to the objective facts, there are unusual facts to this case that one does not ordinarily see in a case of this type.
I have noted the evidence of members of the prisoner's family to which I have referred. The family have confirmed the steps the prisoner has taken since the commission of this offence, particularly in recent years to address underlying issues that relate to the offending, his use of alcohol. The social responsibility that he has exhibited in his activities within the Manly area. I note one of the consequences of his conduct and justifiably so, perhaps, is the loss of commercial opportunity in the business affairs conducted by his wife as I understand it, and in part by him and the loss of opportunity being involved in work said to be connected to UNICEF Australia.
I have a reference from people that have had dealings with him in business, Mr Thomas, an English company director who regards the prisoner as a trusted adviser attests to the fact that the conduct that is before the Court is "completely out of character", the prisoner's expressions of remorse, and his abstinence from alcohol and the huge impact as it is described by that gentleman of the consequences of his conduct in a range of ways. Likewise another apparent friend and it would seem, sometimes business colleague, reflects upon the prisoner's expressions of remorse, his disappointment in his conduct and the work he has done, both at the Manly Surf Club and elsewhere. I have a reference, from the Minister of St Matthews at Manly, the volunteering of the prisoner and community works run by that church and his attendance upon men's groups and the like, which I have taken into account.
In the context of all the evidence, including the evidence relating to the prisoner's criminal history, those mitigating factors additional, to those that I have already identified, that arise under s 21A(3) of the Act in this matter are as follows: firstly, I accept that the prisoner was a person of good character, that he did not have any significant record of previous convictions. I am prepared to accept, bearing in mind the length of time that has elapsed since the offending and even allowing for the to-ing and fro-ing of matters within the Family Court and elsewhere that the prisoner is unlikely to reoffend. I note in that regard, without trying to reopen festering sores, that there have been proceedings in the Local Court brought against the prisoner in respect of alleged breaches of apprehended domestic violence orders but they have been dismissed.
I am prepared to accept, particularly in the context of the prisoner's progress in the last number of years, that the prisoner has got prospects of rehabilitation. I accept that the prisoner has relevantly shown remorse as required under s 21A(3)(i), not only accepting responsibility but acknowledging relevant injury and harm.
His pleas of guilty, of course, are a mitigating factor for which he received a discrete penalty. In the context of that aspect of the matter to which I made reference earlier when I was outlining the history of the matter, I am required bearing in mind this matter predates the current legislation to consider an appropriate discount for the utilitarian benefit of the pleas of guilty.
In this particular matter I have noted the offer of a plea to the charge to which the prisoner eventually pleaded guilty to at the Local Court. I am prepared to provide the prisoner with a discount of 25% upon the otherwise appropriate sentence for that offence, that is, the s 35(2) offence, to recognise the fact that the prisoner made offer of a plea that would have had great utilitarian benefit. It is not the prisoner's fault that the offer was not accepted at the time that it was, neither is the subsequent delay that occurred in the matter. But I accept, also, that from the perspective of the Director of Public Prosecutions different legal representatives of the Crown will take different views of the evidence.
I remember in the very early days of consideration of the guideline judgment in Thomson and Houlton there was a particular decision from the Supreme Court which was reviewed in the Court of Criminal Appeal concerning a person offering to plead guilty to manslaughter before committal, not accepted by the Crown, appearing for trial in relation to a charge of murder and pleading guilty to manslaughter when indicted, the plea of guilty to manslaughter not accepted by the Crown. A trial for murder then proceeding over a period of time, I assume several weeks, then the accused was found "guilty" of manslaughter and "not guilty" of murder. There the sentencing judge provided a discount of 25% for the plea, notwithstanding the fact that it was not accepted by the Crown.
That is a very different situation than this, because there was ultimately no trial here. Thus, the utilitarian benefit of the plea being accepted in the end was realistic, saving the victims, of course, the trauma of having to give evidence. But, in my view, in the context of the analogy through the other case, the granting of a discount of 25% is appropriate. The same discount cannot be applied in relation to the offence of assault occasioning actual bodily harm.
I appreciate the prisoner offered to plead guilty to assault but that was ultimately not accepted by the Crown and the prisoner offered to plead guilty to assault on the basis that the matter was dealt with in the Local Court which it could not in the way in which the other matter was prosecuted. The two matters ought to be dealt with together and assault occasioning actual bodily harm had to be dealt with in the District Court.
However, in the scheme of things, there is utilitarian benefit, both in the offer and in the ultimate plea and I am prepared to provide the prisoner with a discount of 12.5% upon what might have been the otherwise appropriate penalty, involving any restraint of liberty for the offer of that plea. In relation to the assault occasioning actual bodily harm matter, of course, I have indicated that I am prepared to make an order under s 9 of the Act. I have concluded that both standing alone, and taken in conjunction with the other matter, and in the context of all the matters that I have identified, that is, an offence that does not warrant a custodial sentence at this point. The threshold under s 5 of the Act has not been reached.
Obviously by reference to the matters that have been raised in the submissions, I have had regard to all that has been put. There remains for me, perhaps, just to mention in passing some other matters without dwelling upon them. I was referred to the decision of Dungay, (R v Dungay [2012] NSWCCA 197). This was a case, as with Merillo, that was referred to for a number of reasons. Both by reference to a consideration of the progress of rehabilitation as it was discussed in Dungay and, as I would have understood it, for comparative sentencing purposes. It seems to me with respect that looking at the objective facts alone in both Dungay and Merillo they were more serious objectively than the objective facts here, having regard to the character of the injury and the circumstances in which the injuries arose. In Merillo there was the use of a glass which I regard as an extremely cowardly way to strike somebody, although it was found that the use of the glass was reckless. But a glass smashed into a person's face has inevitable consequences, one would have thought.
In the case of Dungay that offender pleaded guilty. The offence was found to be below the midrange of objective seriousness. It was confirmed by the Court of Criminal Appeal. The victim was the victim of only one punch, but as so distressingly often happens nowadays, the victim fell to the ground, struck his head and was in a coma for five weeks. He had a fracture to the right occipital bone at the back of the skull and he had subarachnoid and other haemorrhages in his brain with long term effects upon him. The poor man was lucky to survive. But ultimately it was concluded in that matter that a term of imprisonment suspended was appropriate which of course is not available to me today. I am not suggesting that I would contemplate suspending a term of imprisonment. But I am simply indicating that that is a case that has relevance in this case for a number of reasons as identified in the written submissions, including comparative sentence purposes.
Just some other features that I may briefly note; I have noted the submissions made by learned Senior Counsel for the prisoner about the issue of delay. These were not the subject of a particular address by the learned Crown. I have already made comments about the issue of delay and I have indicated that I cannot ascribe the delay solely to the feet of the prisoner. It is correct in a general principle way that delay may provide an opportunity for the Court to consider the progress of the rehabilitation of an offender.
There are two significant authorities in that regard. There is the decision of the High Court in Mill v The Queen [1988] 166 CLR 59, particularly at pp 64‑66 and there is the decision of the NSW Court of Criminal Appeal in the judgment of the late Street CJ in Todd (1982) 2 NSW LR, particularly at 519‑520, which is specifically referred to and adopted in Mill. Interestingly, Todd was a case that was decided by the Court of Criminal Appeal in 1979. It took three years to find its way into the NSW Law Reports, such was law reporting in those days.
I appreciate Todd's case concerning extensive delay occasioned by reason of the fact that the offender had to spend time in a Queensland prison for a number of years serving sentences for like offences in Queensland around about the time that the prisoner was committing the offences in New South Wales, for which he was required to come back to be sentenced. Todd had the special consideration that because of the interstateness of his offending, the reality was that his treatment was somewhat a complicated by the character of our Federation. This is not such a case and I appreciate too Todd had spent many years in gaol in Queensland before he came back to New South Wales and there were basic notions of fairness in the context of totality of criminality that were at play in the decision. But that decision and other decisions cited by learned Senior Counsel for the prisoner note that delay however caused may provide the opportunity that arises in this particular case.
The other matter worthy of reflection is the decision in R v Pullen [2018] NSW CCA 264, particularly the discussion as to the appropriateness of an order of "intensive correction" as opposed to fulltime custody. I am mindful of the very short submission of the Crown on this that the seriousness of the offending in relation to the first victim required the imposition of a term of full time imprisonment and I have considered that in the context of the other submissions the Crown made about matters properly raised by learned Senior Counsel for the prisoner.
I cannot draw comfort from my own decisions, but learned Senior Counsel for the prisoner in his usual thorough and professional way drew my attention to a decision that I had long forgotten of Taani [2016] NSW DC 394. I do not, for one moment, take as I said comfort from my own decisions, but I note my assessment of the character of the offending by reference to the middle range of objective seriousness of that matter. Taani was a case of a security officer who took advantage of a very drunk man and caused him very serious injuries at a time when that prisoner was responsible for the welfare and that victim, he was sober at the time that he attacked the victim and caused injuries, not seeking to downplay the injuries to the first victim in this matter; that were more serious than what I am considering now. These are matters of personal perception and I am well aware that the first victim, without knowing the detail of the victim's injuries in Taani would no doubt feel the injuries to him were serious enough and I certainly accept that that is so. This particular provision contemplates a range of injury and obviously injuries in certain circumstances that are more serious than those suffered by the victim here.
In relation to the issue of the operation of the legislation, I am now required, of course, in reference to the Intensive Correction Orders to sentence the prisoner in relation to the law as it applies now, not as it applied at the time of entering the plea of guilty. The provisions of the Act still make it clear that consideration of an Intensive Correction Order will only arise where one concludes ultimately that the appropriate sentence for one offence will be no greater than two years' imprisonment and if more than one offence, the total sentence would be no more than three years' imprisonment.
I indicate that I considered in terms of the offence of assault occasioning actual bodily harm the issue of whether I should impose a term of imprisonment in relation to that matter, bearing in mind I am required to impose a term of imprisonment in relation to the offence involving the male victim. But, as I have said earlier, the threshold, both in isolation or in wider context, has not been passed pursuant to s 5 of the Act.
I should point out, that notwithstanding the wound if I can call it that, to the soul of the female victim caused by the prisoner which was clearly evident on the last occasion, that if the matter had not been linked to the offence involving the male victim, it certainly would have been, I would have thought be a matter dealt with in the Local Court. Properly it is here because of the other matter as I earlier observed.
Thus, in all those circumstances I have had, I hope proper regard to all the matters that have been identified by the parties.
In relation to the offence of recklessly cause grievous bodily harm, count 2 in the indictment, you are convicted. The orders that I make now are not the order that would ordinarily be made at this stage of the proceedings, but I have already indicated as I have said the complication that your pre‑sentence report was apparently prepared before the new statutory provisions came into effect.
I have considered s 5(1) Crimes (Sentencing Procedure) Act and I am satisfied for the reasons that I have given, that no penalty other than imprisonment is proposed for the offence. I propose that that sentence will be for a period of one year ten months which represents a 25% discount on a starting point of two years six months imprisonment. I have rounded down the sentence by half a month. The Court of Criminal Appeal has disproved judges expressing sentences in weeks and this one is backdating a sentence to expire on the date of order.
You are required to be referred for assessment as to your suitability for an intensive correction order as a means for serving the sentence. In relation to that matter, Mr Crown, I propose to continue bail with an additional condition that you report to the community corrections order at St Leonards within 48 hours of today to facilitate the preparation of the report.
In relation to the offence of assault occasioning actual bodily harm committed upon your former wife, you are convicted. You are ordered to comply with a conditional release order pursuant to s 9(1)(a) Crimes (Sentencing Procedure) Act 1999. The term of the order is for one year eight months. The standard conditions are as follows: you are to be of good behaviour, you are to attend Court if called upon to do so. Additional conditions I impose are: thirdly, you are to notify the registry of any change of address within seven days of any such change and fourthly; you are to be supervised by Community Corrections for the period of the order.
Mr Crown are there any continuing ADVO orders that need to be amended or added to in relation to the assault occasioning actual bodily harm matter?
MURRAY: No, not that I am aware of.
HIS HONOUR: I understand that there are current ADVO orders in place, is that right?
ROWE: Your Honour, they are before the Local Court for mention next Wednesday here at the Downing Centre, I believe. They are separate proceedings. They'll be finalised at some stage in the Local Court.
HIS HONOUR: There are no final orders made?
ROWE: Not at this stage. There is an interim order in place, however.
HIS HONOUR: Yes, but aren't I obliged under the Act to fix an order if there is no existing order or not? Do you know the answer to that, Mr Crown?
MURRAY: I'm sorry, your Honour, I'd have to look that up.
HIS HONOUR: I am contemplating this matter in a sexual assault matter that I have got tomorrow where there's an uncle who sexual assaulted his niece and I am required, because of the character of the assault, to fix an order, I mean that's separate from here. I did look at the provisions that were provided to me by the learned Crown last Friday evening in relation to that matter and it didn't refer to s 59 of the Crimes Act, I must say. It referred to a series of sexual assault provisions where there's a mandatory requirement to make an order. Well it is a matter that I can fix up on the next occasion if need be, Mr Crown, if that is convenient.
MURRAY: Yes. There is a provision, your Honour is right, in the legislation, the Crimes (Domestic and Personal Violence) Act which does require the making of an order if there's a domestic violence offence.
HIS HONOUR: Yes, I would expect so, yes.
MURRAY: There are some exceptions in there. I haven't got the section at my fingertips.
HIS HONOUR: I should be advised on the next occasion‑‑
MURRAY: As to what's happened in the Local Court.
HIS HONOUR: If there are no existing orders in the Local Court, then I will fix orders here.
MURRAY: Yes, your Honour.
HIS HONOUR: But I will wait until I get further advice then, if that's the case.
MURRAY: Yes, your Honour.
HIS HONOUR: Fine, thank you. Yes, well all I can do is wish all the parties all the very best for the future and trust that the time will heal some wounds, maybe not, but maybe so, sometimes it does.
Mr Rosamond you can leave the dock. You will be required to go upstairs to Level 3 to enter the order that I made pursuant to s 9, but before you leave me I have to fix a date for the matter coming back to me and I am going to make an order for I believe it is called a community sentencing assessment report. I bear in mind that there has already been a report prepared which would no doubt, save some time. I am out of the country from April 7 until 1 June, so I will have to fix the matter on the Friday before I leave which is five weeks. But I am assuming it would be sufficient time for such a report to be prepared.
I will list the matter for 2pm. It will not be at 10am and I will ask any associate to order the transcript or the judgment to be prepared so I can revise it and have it sent out to the parties.
MURRAY: Just in that regard, your Honour, there was an error in the Crown sentence summary regarding s 59(1). The maximum sentence is five years not seven.
HIS HONOUR: Well that's what I thought actually. Actually my memory of s 59 was that it was five years but I didn't research that.
MURRAY: 59(2) is seven years, 59(1) is five.
HIS HONOUR: Yes, that's right it is the in company offence, isn't it?
MURRAY: Yes, your Honour. It was an error the Crown sent a summary but someone has actually corrected it on mine in handwriting but obviously not your Honour's.
I adjourned the matter to that date, 5 April not before 2pm. Mr Rosamond, I vary your bail to make it a condition of your bail that you are to report to Community Correction Service at St Leonards within 48 hours, that is by close of business on Friday. The primary purpose for reporting to Community Corrections at St Leonards is to tell them what your solicitor can write out on a piece of paper, that an assessment report is required for an Intensive Correction Order. It will set the train in motion. They will receive a letter from the Court, but it takes some days for that to be generated and if you go there at the earliest opportunity, it can speed up the process.
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Decision last updated: 27 February 2020