R v Royle

The injuries

1. When examined at hospital in Coffs Harbour the victim could put his tongue through his cheek and he was taken to Newcastle for surgery.
2. The wound was closed under general anaesthesia.
3. Physical examination revealed a deep laceration to the left pre-auricular area with weakness of the left buccal branch of the facial nerve. The provisional diagnosis was of facial laceration with damage of that nerve.
4. The victim was discharged on 3 January so two days later. The victim was still dislodging glass from his mouth a few days later. He had swelling to the cheek which required draining and experiences even now ongoing shooting pain that comes and goes.
5. The injury to the cheek has resulted in sustained nerve damage and the left side of his lip and his cheek area underneath his eye is numb. There will be follow-up medical treatment and there is a prospect the nerves will not heal. He has issues sleeping since this incident and difficulty eating because he cannot open his jaw properly.
6. When questioned by police on 4 January the accused said it never happened and when the victim was named said he had never heard of him.
7. The offender said he had not seen the victim since 6 months ago outside a pizza shop when the victim tried to assault him which of course is different to the agreed fact of the victim breaking up an incident involving the offender.
8. He gave a story quite different to the facts as to what he was doing on New Year's Eve though to the extent that he says he "got pissed" and spent the night with friends so that his conduct might not be remembered there must be some prospect of it not being entirely inaccurate given his alcohol consumption. He did however expressly say he was not at the reserve, the scene of the offending, at 1:30 AM. He was later arrested on 28 January 2022.

OBJECTIVE SERIOUSNESS

1. AM v R [2012] NSWCCA 203 gave consideration to factors relevant to assessing the objective seriousness of this offence. That case also noted the breadth of conduct and consequences that may be captured by the offence. It is important not to be disproportionately influenced by the nature of the conduct and the seriousness of the injury given that elements of the offence are the intention to cause grievous bodily harm and that grievous bodily harm means really serious bodily harm. At the same time, it is the extent of the injuries which are of significance in assessing objective gravity but that is not the sole consideration. Reconciling that comment with the proceeding comment really goes to show that whilst the extent of the injury is of significance it is likely that the injury will be a significant one so that the starting point to satisfy the element of the offence needs to be borne in mind.
2. In this case those comments are apt; the evidence is that the victim could put his tongue through his cheek. On the other hand whilst there is ongoing sequelae of nerve damage, the current condition of the victim is not as well evidenced as might be hoped; the Court was informed at the hearing that there had been difficulties gaining an update from the victim.
3. The initial infliction of the injury and the impact on the victim in my view is horrific. The surgery that was required in my view is clearly relevant to take into account but was not medical intervention of the most severe kind and he was discharged from hospital just two days after the incident. The most recent prognosis was provided as at 3 January 2022 where it was said the injuries were serious and the prognosis was considered to be intermediate with anticipated long-term disability. That disability is the sustained nerve damage and numbness of his lip and under his cheek. Paragraph 34 of the agreed facts indicates that there is to be follow-up appointments to determine the future prognosis and that the numbness may heal in time but the nerves may not. Bearing in mind the injuries as set out above and the vagueness as to the prognosis results in this consideration of objective seriousness restricting the assessment that may otherwise have been made had the prognosis been more serious.
4. Based on the facts this was not an offence of considerable planning though it cannot be said to have been impulsive given the fact of the offender leaving the scene and then returning to it to commit the principal offence. This factor is also to be considered bearing in mind the element of intention. The seriousness of the matter is added to by the fact that the offender did not voluntarily end the attack though that must be considered in view of the fact that he was, based on the facts, losing the fight that ensued with the victim.
5. The attack was unprovoked. There seems to be some suggestion in the material for the offender that it was justified by reason of their encounter months earlier outside the pizza shop. To the extent that submission is made I reject it. This was an unprovoked callous attack upon a person hardly known to the offender from behind.
6. For these reasons I adopt the Crown's assessment of the objective seriousness of the offending which in oral submissions was said to be into the mid range but below that midpoint referred to in section 54A of the Crime (Sentencing Procedure) Act.
7. There was no victim impact statement.
8. As to the Form 1 matter that in my view is a significant act of assault occasioning actual bodily harm. The injury was described as a cut which was still bleeding when the victim reached the hospital. It has the same characteristics of being from behind and unprovoked as the earlier offending. It is not known what was used to effect the cut. I would consider this to be into the low to mid range of assault occasioning actual bodily harm. In line with the Form 1 procedure I will take it into account in sentencing for the principal offence. The two events were not separated by a large period of time and they should be considered as a course of conduct but at the same time they are clearly separate events and the cowardly act committed in the first place is only compounded by a second cowardly act totally unprovoked.

Subjective case

1. The offender relied upon a report of Kris North psychologist dated 17 November 2022. The history given was of a stable childhood though his parents separated when he was 2. His mother with whom he lived provided a pro social home environment though there was a significant upset in 2020 when the offender discovered that his stepfather had molested his younger half sister when they were young.
2. There was a history of mental health issues within the family with a genetic disposition towards psychotic disorders. There was also said to be a family history of substance use issues. The offender began smoking cannabis at age 13 and misbehaved with school leading to him leaving at the end of Year 8 and with attempts at distance education ending in Year 9 when he was 16. His employment history seems somewhat short for a person who left school at 16; the report notes employment in 2021 by which time he was himself 21 so there is five years of possible work unaccounted for. The offender lost his job in 2021 due to alcohol use and had work on a blueberry farms thereafter.
3. As to substance use it was cannabis at 13 until 18 and then methamphetamine from 16 to 18 and OxyContin from 17 to 18 with problematic use of alcohol from age 18 which he described as his primary drug of concern since that time. He also used other drugs such as LSD, ecstasy and symptoms of psychosis since age 21.
4. At 21 he was sober for a year from alcohol but then relapsed in an escalating way stating he consumed between 30 and 40 standard drinks per day at the time of the offending.
5. Diagnoses of Substance Induced Psychotic Disorder and Alcohol Use Disorder, moderate, were made.
6. The report which was not challenged refers to a decline in his mental health functioning in December 2021 which of course is the month of the offending. He said he saw a green guy, in other words was hallucinating and was having disturbed thoughts which he tried to suppress by drinking alcohol. Leading up to the offence he was in unstable accommodation and unemployed and drinking more alcohol. The view is offered that it was these life stresses that contributed to symptoms of psychosis leading up to the offence. The report however seems to stop short of suggesting that there was some psychotic episode occurring at the time of the offending but rather the best that could be said in terms of mitigating factors is that in the lead up to the offending there were psychotic symptoms. In terms of the occasion of the offending the report notes that the offender had consumed two bottles of wine, 10 premix spirits, a number of beers and shots of vodka and described himself as heavily intoxicated.
7. Presently he is suffering from depression during his period on remand. He has sought treatment in custody and is medicated with mirtazapine and is seeing a psychologist. He has an intention to continue that treatment. Ms North carried out various testing which placed the offender in the mild range for anxiety and the minimal range for depressive symptoms. A violence risk assessment was also carried out which arrived at a low/moderate risk for future violence and a low risk for imminent violence.
8. That assessment identifies risk factors and potential protective factors. Given the history of this offender, that is his young age, his violent offending prior to the offending in question, and his involvement in alcohol in custody noted on the custody record, I have reservations about this assessment. Primarily this is because of the potential protective factors including social support yet he was in non-stable accommodation when he was in the community, and the asserted insight is not supported by his conduct in custody where he has been involved with alcohol. Suffice to say I would place his risk of reoffending as being a very guarded assessment and no less than moderate and very dependent on remaining abstinent from alcohol and drugs. The offender expressed remorse to the psychologist.
9. There was also a sentencing assessment report in evidence dated 29 September 2022. It notes his supportive family and that he intends to live with his mother and sister upon release. He had been on the disability support pension for several years but was also working at the time of the offenses which he intends to resume on release.
10. The report states he appeared to accept responsibility for the harm inflicted on the victim but also tended to justify his behaviour asserting he had attempted to diffuse the situation but the victim continued to be aggressive towards him. On the agreed facts that shows a distinct lack of insight. He says he is motivated for change and attributed his behaviour to his substance abuse. He told the report writer that in addition to the alcohol mentioned by the psychologist he had taken cocaine on the day of the offending and the aggressive behaviour he blamed on the combination of substances he had taken.
11. He said but for the alcohol he would not have committed the offenses and wishes to address the issue of chronic substance abuse.
12. He appreciated the harm that he had caused, was willing to undertake intervention and the report notes that has occurred in the past with him engaging well though the report notes the relapse into substance use. He says he is motivated by his custodial experience.
13. His prior response to supervision on an earlier community corrections order was generally positive but with the substance abuse being problematic in that time. This report assesses him as a medium to high risk of reoffending which I consider to be more in keeping with the facts but I do note that the test applied was the static test.
14. There was a testimonial from the offender's grandmother who speaks well of her grandson. There was also a letter written to the court by the offender acknowledging the grievous mistake he has made and expressing remorse and shame. He talks of reflecting whilst in custody and wants to advance with a healthy and sober lifestyle. He says his family helped him and that the jail is a scary place. He expresses his sincere sorrow.
15. There was also a letter, Exhibit 4 from Hannah Wheeler who was in a relationship with the offender at the time of the offending. She speaks of occasions of where the offender has been helpful to her and clearly considers he is capable of being a responsible and contributing member of the community. Finally there was a letter from a Ms Schumaker who recounts occasions where the offender has come to her aid.
16. The offender's criminal history shows that he was imprisoned but it was suspended in 2017 for affray and at the same time received bonds for assault police officer and resist officer and for being armed with intent to commit an indictable offence. The bonds required the offender to attend drug or alcohol rehabilitation. The offender and also received a 7 month suspended sentence for wielding a knife. That was one month after his 18th birthday.
17. In 2019 he was convicted of larceny and received a CCO. It was 2 ½ years after that that this offending occurred.
18. Whilst this is not an extensive criminal record it does in my view given his age result in far less leniency being extended to him than with a clear record but a combination of his youth and in effect two occasions of offending in my view does not deny him leniency altogether.
19. The offender pleaded guilty at a time that allows a 25% discount on his sentence.

Consideration

1. The seriousness of this offending is indicated by its maximum sentence and standard non parole period, as well as the fact that the intention to cause grievous bodily harm is the mental element for murder, observations made in AM referred to above.
2. In my view there are no aggravating features of the type set out in section 21A.
3. Ms North offers the unsurprising opinion that the offender's reasoning was likely impaired at the time of the offence as a result of both his psychosis and level of intoxication. By section 21A(5AA) self-induced intoxication at the time of the offence is not to be taken into account as a mitigating factor. A large part of the submissions for the offender was to focus on his psychotic symptoms leading up to the offending and to place reliance upon the case of De La Rosa at [177]. In this case there needs to be a recognition of the fact that his condition at the time of the offending was one of self induced intoxication and in the period leading up to the offending was suffering from some psychotic symptoms. Yet the evidence does not disclose whether he was hallucinating at the time of the offending and with respect it seems unlikely that he was given that he just happened to attack a person that he clearly had harboured ill feeling towards. Nevertheless I consider there is an element of mental ill-health present at the time of the offending though I am not satisfied that it was causative of the offending given that no psychotic symptom is identified at that time. In general terms it might be said to have impacted upon his reasoning. The result is that I give some weight to his mental health impacting upon his moral culpability but only to a minor extent. It also has the consequence that his time in custody may be more onerous. The matter self-evidently shows him to be a person who poses a risk to the community and his alcohol and mental health issues fall within that part of De La Rosa identifying that there might be a heightened need for the protection of the community. That is a matter that I must take and do take into account. In doing so I do take into account the risk assessment of the psychologist but on the basis that I have referred to above namely that I consider it to be no less than moderate.
4. As to other mitigating factors I note that the issue of planning has been considered above. There is a criminal history of violent offending however in my view not sufficient size to aggravate the matter.
5. I found that the offender has made sincere expressions of remorse.
6. The prospects of rehabilitation are difficult to assess. In my view it is almost certain that the offender is truly shaken by the events that have happened and the consequences of that which has seen him in custody for already more than one year. That would be a very confronting experience and would on the facts of this case provide some motivation for rehabilitation. Yet the updated custody record shows an infraction for seeking to manufacture alcohol in custody. In my view there needs to be care taken not to place too much weight on that; just what the circumstances were of that is not known but simply being involved with alcohol in custody in this way tends to dilute to some degree the good intentions that he otherwise expresses. I am prepared to assess the prospects of rehabilitation as moderate and clearly wholly dependent on him engaging with intervention.
7. The Crown provided a useful table of comparable cases. Comparable cases need to be referred to with a great deal of caution due to the wide range of facts and undoubted differences to the matter presently being considered. The Crown referred the case of Muggleton [2015] NSWCCA 94 which was the case of a smashed schooner glass put forcibly into the face of a male stranger in what was an unprovoked attack. Some similarities can be seen to the present matter though there are distinctions as that offender had PTSD and did not have the full discount. The sentence there was six years and six months with a non-parole period of four years with a 15% discount to arrive at that sentence. In the case of Vaiusu [2017] NSWCCA 71 a sentence of two years and three months with a non-parole period of one year and two months was imposed after applying the 25% discount. In that case the offender had mistakenly thought the victim had assaulted her sister and she stabbed the victim in the neck three times with glass from a broken beer bottle.
8. The purposes of sentencing provided for by section 3A are as follows: 1. To ensure the offender is adequately punished 2. To prevent crime by deterring the offender and others from committing similar offenses 3. To protect the community from the offender 4. To promote the rehabilitation of the offender 5. To make the offender accountable for his actions 6. To denounce the conduct of the offender 7. To recognise the harm done to the victim of the crime and the community.
9. There is no argument against the finding that there is no other term more appropriate than a term of imprisonment. The ultimate argument for the offender was that there should be a term of imprisonment with a non-parole period which would expire either now or very soon. That submission is based on the psychological evidence, an assertion which has support in the sentencing assessment report that the criminal history is modest if that, the expressions of remorse and preparedness for intervention and that he has performed well in custody save for the recent infringement concerning alcohol.
10. The Crown makes the point with which I agree that this is an example of mindless alcohol fuelled violence, even allowing for the psychological background discussed above, in a public place against a person hardly known to the offender and done in the most cowardly way.
11. Taking the parties submissions into account and my various findings above there is clearly in my view a need for deterrence albeit somewhat tempered by the psychological health of the offender, and in my view a need for specific deterrence and also to make the offender accountable for his actions. There is the need to denounce this conduct. The harm suffered by the victim should be recognised and the need to protect the community looms large. It need also be remembered that this offender is still a young man and in the lead up to the offending appears to have had employment to a greater extent than any earlier time and his rehabilitation should be promoted.
12. In respect of that last purpose of promoting rehabilitation in my view that is best served in this case by making a finding of special circumstances. This is this offender's first time in custody, he has a serious substance abuse condition so that there will be a need for an extended period of supervision upon his release, and his age and inexperience in custody together with the more onerous conditions prevailing in custody in Covid times justify a finding of special circumstances.
13. In my view the separate attack founding the Form 1 charge of assault occasioning needs to add to the weight of the sentence but whilst also ensuring that it remains proportionate to the principal offence. The offender is also entitled to the 25% discount.
14. The conclusion I reach is that prior to the discount there should be a term of imprisonment of 6 years which after the discount becomes 4 ½ years. Taking into account my allowance of special circumstances there should be a non-parole period of 2 ½ years. In my view any lesser period than that would in all the circumstances of this case not properly reflect the objective seriousness of this offending.

Orders

1. The offender is convicted of the offence of wounding with intent to cause grievous bodily harm, in breach of s33(1) of the Crimes Act.
2. Taking into account the matter on the Form 1, and after applying the 25% discount, the offender is sentenced to a term of imprisonment to date from 28 January 2022 with a non parole period of 2 ½ years expiring on 27 July 2024 and with a balance of term of 2 years expiring on 27 July 2026.

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