Steven Turner has pleaded guilty to one count of recklessly cause grievous bodily harm in company contrary to section 35(1) of the Crimes Act 1900 (NSW). In sentencing the Offender, I have been requested to take into account an offence of affray under s 93C(1) of the Crimes Act 1900 (NSW), being an offence listed on a Form 1.
[2]
Facts
According to the agreed facts tendered, on Saturday the 28th of October 2017 the Offender and his brother Peter Turner attended a birthday party at the St George Tavern in Rockdale. They had been invited by Peter Turner's girlfriend, but otherwise did not know anyone in attendance. Also present at the party were a number of co-offenders, namely Jed Latimer, Daniel Taane, Tuck Gardiner, and Gregorios Hatzopoulos. At the conclusion of the party, the Offender and his brother were invited to continue at Goros Restaurant in Surry Hills, where a Karaoke room had been hired.
At 2.45am on Sunday 29 October 2017, a fight broke out near the entrance to the poker machine area between several members of the party. Near the front stairs of the venue, another fight broke out between Taane, the Offender, his brother, Hatzopoulos and Gardiner. The Offender threw punches and Gardiner was punched by Peter Turner. Taane was hit in the face by both the Offender and an unknown individual. Latimer remained in the rear lane for about one minute before he ran back into the venue to re-join the brawl.
Taane was hit several times by Peter Turner and Hatzopoulos. Latimer hit Taane from behind while he was attempting to leave via the front stairs of the venue. Several people, including venue security, attempted to break up the brawl. A security officer sustained a bleeding nose while trying to break up the brawl. Security and a witness described as "Utatao" moved the brawl out onto the street where the fighting continued. Gardiner was trying to continue to fight but was being held back by witnesses.
Once on the street, Latimer and Taane were shaping up to each other in a boxing stance with fists raised. Taane removed his shirt and was motioning to Latimer for a fight. Smaller fights were ongoing, with Peter Turner taking off his black t-shirt and throwing it on the footpath.
The brawl spread onto Mary Street and due to the intensity and violent nature of the brawl, other patrons and passers-by were seen to quickly clear the area. Witnesses Reihana and Utatao were attempting to disperse the brawl and for a few seconds it seemed to have calmed. Peter Turner then approached Taane and punched him again. Taane tried to assault Peter Turner by running towards him. Reihana then got in between them and moved Taane away. This was the offence of affray.
Witness Santos came over to the Offender and tried to reason with him to stop fighting. They were standing on the road on Mary Street outside the entrance to the venue. The victim, Trent Zahra, and Elena Alvanez exited the venue and walked about 10 metres north of the front door and were leaning against a wall on the footpath of Mary Street. The victim was using his phone to take selfies of himself and his companion and at no time was part of the brawl.
Whilst the affray was still occurring, the Offender turned toward the victim and said "are you filming me?" and ran toward the victim with his fists clenched, yelling aggressively. Peter Turner closely followed the Offender and confronted the victim. Peter Turner demanded that the victim put his phone away and asked him why he was filming the affray.
Witnesses Santos and Ratu Turagakula then ran toward the group and tried to get in between the Offender, Peter Turner and the victim. The victim's companion put her arm up to try and shield the victim from the Offender. The Offender approached the victim with his fists raised and moved to the victim's right side while Peter Turner remained in front of the victim. Peter Turner put his hands around the victim's hands and attempted to pull his phone from him. The victim was trying to retain his mobile phone and both of his hands were on his phone, whilst Peter Turner was trying to pull it from him.
While the victim and Peter Turner fought for control of the phone, without warning the Offender punched the victim once to the right side of the face. This caused the victim to be knocked unconscious before he hit the ground. The victim fell backwards in an upright position, the back of his head hitting the pavement. There was a loud crack as the victim's head connected with the concrete footpath, and witnesses saw blood burst from his mouth. The victim's eyes rolled back and he remained unconscious until an ambulance arrived. The victim let go of his phone, however Peter Turner did not take it.
The Offender, Peter Turner and Hatzopoulos then left the scene as soon as the victim hit the ground. They did not offer any assistance to the victim.
The victim was taken to Royal Prince Alfred Hospital by ambulance. As a result of the punch from the Offender, the victim sustained a fracture to the right side of the petrous temporal bone and six stitches to the inside of his mouth. The victim also suffered a profound loss of hearing in his right ear as a result of a sensorineural injury. The victim continues to also have problems with his balance and pain from exposure to loud noise.
Taane, Latimer and Gardiner were arrested at the scene and taken to Surry Hills Police Station charge room.
At about 9:00am on 20 November 2017, the Offender attended Surry Hills Police Station after being identified via bank transactions made at St George Tavern Rockdale and after police contacted him by telephone. The Offender was arrested, cautioned and participated in an electronically recorded interview. During the interview, he made admissions to fighting and stated that he threw a couple of punches both inside and outside the venue. The Offender also made admissions to hitting the victim, stating "I might of hit this guy", "I punched him in the head or face".
The Offender also identified himself in a "still" obtained from CCTV just before the victim was assaulted.
[3]
Victim Impact Statement
The Court has received a victim impact statement signed by the victim, Trent Zahra. In that statement, Mr Zahra refers to the impact of the offence on him physically and psychologically, and described that emotionally he feels "almost empty". He states he has the burden of depression and anxiety, and has sought assistance from family, friends and psychologists. He describes experiencing thoughts and emotions that have caused him to be on and off anti-depressants, and this is something that he feels ashamed of. Physically, he describes a permanent loss of hearing and facial scarring. He stated that he greatly values his hearing, explaining that it is "probably more important to me than my eyes". In particular, he describes that his full ability to be able to listen to music and voices has been severed in half and taken from him. He described his experience as "soul shattering".
Mr Zahra also stated that he is one half of a family business and that his inability to work has caused a financial loss to his company, and has resulted in opportunities becoming now unavailable.
No submission was made by the Crown that the victim's injury, harm, loss and damage are such that it engages section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the '1999 Act'). Nevertheless, the victim's statement is a powerful reminder to this Court of the effect of such offending, which the Court takes into account in the way provided for by section 28 of the 1999 Act.
[4]
Objective Seriousness
As the offence is one carrying a standard non-parole period pursuant to section 54D of the 1999 Act, it is necessary to assess where the objective factors affecting the relevant seriousness of the offence fall in relation to the mid-range of seriousness. [1]
In this case, I have borne in mind the nature of the injury to the victim as described in the agreed facts. They include:
A fracture to the right side of the petrous temporal bone
An injury to the inside of his mouth requiring six stitches
Profound loss of hearing to the right ear as a result of a sensorineural injury
Problems of balance and pain from exposure to loud noise
I also take into account the degree of violence used, comprising a single punch to the right side of the face with such force that it caused the victim to be knocked unconscious before he hit the ground. The context in which that strike occurred was one where Peter Turner was attempting to take the victim's phone from his hands and had his hands around the victim' hands. The strike was delivered to the head. Both the victim's hands were on the phone as Peter Turner was attempting to pull it from him. The attack occurred without warning, although it was preceded by the Offender approaching the victim with his fists clenched while yelling aggressively, and Ms Alvarez seeking to shield the victim. In the circumstances the victim was an innocent bystander carrying out his lawful business and not involved in the affray. Although the actions of the Offender comprised only one punch, it occurred in a context where he had previously been involved in an affray. As such the Offender's act on the occasion in question cannot be mitigated on the basis that it was an isolated act of violence.
The relevant mental element in the offence involved recklessness.
Both the Crown and the Defence accepted that at the time the Offender had been drinking. This is not a mitigating factor. [2]
There is no evidence that the victim was known to the Offender. Rather the Offender's concern was that he was being recorded. He then left the scene, leaving the victim bleeding and unconscious on the ground.
Whilst the Crown submitted that the victim was "vulnerable" within the terms of s 21A(2)(l) of the 1999 Act, the Crown did not identify any particular features of the victim which made him vulnerable to the commission of the offence, either because of age, employment or situation. Rather, the Crown relied on the particular circumstances present when the offence was committed. I do not regard this as satisfying the terms of vulnerability within s 21A(2)(l) of the 1999 Act. [3]
The offence was in company of one other person Peter Turner.
The Crown submitted that this case fell "somewhere near" the mid-range on the scale of objective seriousness.
Offences of this kind can vary greatly in terms of the force used, the number in company and the extent of the injuries sustained and the bodily part. Bearing in mind all the features I have referred to, I am satisfied that the objective factors affecting the relevant seriousness of the offence fall in the upper end of the lower range of seriousness.
[5]
Plea of Guilty
The Offender pleaded guilty in circumstances where the Crown concedes that it was at the earliest opportunity, and entitles him to a discount of 25%. I accept that this is so.
[6]
Good Character
A number of references were provided to the Court from the Offender's employer and friends. Each of those references testify that the Offender is hard working, favourably regarded and a committed family person to his partner and children. The findings of a Sentence Assessment Report provided third party verification that the Offender's behaviour was out of character and uncommon. Whilst the Offender does have a single offence of assault occasioning actual bodily harm in 2010 as a juvenile, I am nevertheless satisfied in the circumstances that he is a person of good character within the terms of s 21A(3)(f).
I also accept that the Offender does not have a significant record of previous convictions within the terms of s 21A(3)(e) of the 1999 Act.
[7]
Remorse and Contrition
Before the Court, the Offender tendered a letter of apology to the victim. That letter, which is part of exhibit 1, states:
"I would like to sincerely apologise for the past events I put you through on the 29th of October. I would never have thought myself capable of such actions, which to this day I continue to deeply regret.
The person you witnessed that night is not the person I am. I would never wish harm on anyone in any type of way and I cannot even imagine the pain and fear that I caused you. I know that I can never take it back but I am wholeheartedly sorry for it happening and that you had to go through it.
I had unfortunately and regrettably let the alcohol get the best of me, which I know does not justify my actions, but I am attending Alcohol Anonymous Programs to ensure that I never let anything like that happen or make anyone else feel that way again."
The Offender was cross examined in relation to his statement. He acknowledged that he did not provide that statement until going to Court, stating that he was subject to bail restrictions which prevented him from contacting the victim. He acknowledged that in the Sentence Assessment Report, there is no mention of the impact of his offending on the victim. However, he stated that he did mention his concern for the victim to Community Corrections.
The Crown pointed out that there is no mention in the report of concern for the victim. While this is so, the report does describe that the Offender has displayed good insight into his offending behaviour and that he expressed regret for the embarrassment that he has caused himself and his family and claimed that his behaviour was uncharacteristic.
Despite the lateness of the letter of apology and the contents of the Sentence Assessment Report, I accept that the Offender is remorseful. His own oral testimony, his statements and his plea of guilty demonstrate that he had accepted responsibility for his actions and acknowledged the injury, loss and damage caused to the victim within s 21A(3)(i) of the 1999 Act.
[8]
Likelihood of Re-Offending and Prospects of Rehabilitation
Whilst I have noted the previous conviction as a juvenile, the statements in Exhibit 1 satisfy me that the Offender's behaviour was out of character and uncommon. This was further verified by the Sentencing Assessment Report, which finds that the Offender is at low risk of re-offending. The Offender does have insight into his behaviour and acknowledged that he has a motivation to live a law abiding, pro-social lifestyle. The Offender commenced treatment at Odyssey House on 10 January 2019, with the Alcohol and Other Drugs Recovery Stage 2 Group, which is a six week program that supports clients with addiction recovery and relapse prevention. Apart from this matter there is no evidence as to the extent of the Offender's issues in relation to alcohol abuse being manifest.
The Offender resides in stable accommodation with his partner and two children, and his partner's parents, sister and niece. He has reported that he is benefiting from the ongoing support of family, who appear to be pro-social influences. He has also maintained a history of stable employment since finishing high school in 2011 and has been employed by the same company for almost 3 years. As outlined in a statement provided by Dianna Pino in Exhibit 1, he is recognised as an asset within the company, is reliable and displays dedicated and positive attitudes.
I am satisfied that in all the circumstances the Offender does have good prospects of rehabilitation and a low likelihood of re-offending.
[9]
Form 1 Offence
As earlier noted, the Court has been asked to take into account the offence of affray on a Form 1. I do so in accordance with section 33 of the 1999 Act and the judgement of Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002. [4]
I am satisfied that the sentence I would impose for the principal offence can largely address the needs of personal deterrence and retribution to the extent required without need for additional emphasis.
[10]
Parity
In submissions the Crown informed me, without objection, that the co-offenders were charged and pleaded guilty as follows:
1. Peter Turner pleaded guilty in the Local Court to charges of affray and common assault, and was sentenced on 30/08/18. He was sentenced to a section 9 bond for 18 months and was fined $1500 and $500, respectively.
2. Jed Latimer pleaded guilty in the Local Court to a charge of affray and was sentenced on 09/05/18. He was sentenced to a section 9 bond for 18 months.
3. Daniel Taane pleaded guilty in the Local Court to a charge of affray, and was sentenced on 04/05/18. He was sentenced to a s 9 bond for 18 months.
4. Tuck Gardiner pleaded guilty in the Local Court to a charge of affray, and was sentenced on 10/01/18. He was sentenced to a section 10(1)(b) bond without conviction for 2 years.
5. Gregorious Hatzopoulos pleaded guilty in the Local Court to a charge of affray, and was sentenced on 10/01/18. He was sentenced to a community service order of 50 hours (as part of a concurrent sentence for unrelated offences).
The Crown argued that parity doesn't strictly apply in the current matters, as the only true co-offender was Peter Turner, who was not convicted of recklessly causing grievous bodily harm in company. Further the conduct and role of Peter Turner was not assessed in the context of an "in company" assault. All the other Offenders took part in affray, and did not participate in the assault on the victim to this offence.
I was not provided with the facts presented on sentence in relation to any of the co-offenders, nor the remarks on sentence. The facts in this case do provide some details of the co-offenders involvement in the affray matter although in the instant case that matter is on the Form 1.
The Defence did not dispute the Crown's submission that Peter Turner's circumstances were distinguishable from that of the Offender and I accept that this is so.
[11]
SENTENCE
In sentencing the Offender, I have regard to the maximum penalty of 14 years imprisonment and the standard non-parole period of 5 years imprisonment as guideposts in the sentencing discretion. I also take into account the matter on the Form 1 as indicated.
In sentencing the Offender, I take into account the purposes of sentencing contained in section 3A of the 1999 Act. The Offender has to be punished, made accountable, his conduct denounced and the harm done to the victim must be recognised.
Overall, I accept that the Offender has to an extent been deterred. Nor do I see any particular need for the sentence to reflect a need for protection of the community in light of the Offender's low risk of re-offending, and good prospects of rehabilitation. However, general deterrence is an important factor when sentencing for offences of this kind.
The Crown submitted that the threshold in section 5 of the 1999 Act had been met and that there was no appropriate sentence other than one of full time custody. The Defence submitted that a non-custodial sentence was appropriate in line with the recommendations in the Sentence Assessment Report.
I have had regard to the sentencing statistics submitted from the JIRS data base although they are of limited assistance. I have also considered two comparable cases being Kemp v R [5] and Davis v R [6] which despite differences, I have found of some assistance.
I am satisfied that no penalty other than imprisonment would meet the purposes in s 3A of the 1999 Act.
This will be the Offender's first period in custody. His good prospects of rehabilitation, and strong community and family support justify a finding of special circumstances. The Offender has served one day in custody. Thus, it is appropriate to commence the sentence from 31 January 2019.
But for the plea of guilty, I would have imposed a sentence of 3 years and 6 months imprisonment. In light of the plea, the Offender will be sentenced to a period of imprisonment for 2 years and 7 months, to date from 31 January 2019 and to expire on 30 August 2021.
The Offender is sentenced to a non-parole period of 1 year and 6 months, commencing on 31 January 2019 and expiring on 30 July 2020. The Offender is thereafter to be released on parole to serve an additional term of 1 year and 1 month from 31 July 2020 until 30 August 2021. The Offender's earliest release date is 30 July 2020.
I recommend to the Commissioner for Corrective Services that the Offender be placed in the Young Adult Offender's Programme.
[12]
Endnotes
Crimes (Sentencing Procedure) Act 1999 (NSW) s 54A.
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(5AA).
Betts v R [2015] NSWCCA 39.
(2002) 56 NSWLR 146.
[2012] NSWCCA 281.
[2018] NSWCCA 67.
[13]
Amendments
17 February 2019 - Sentence structure regarding parole amended
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Decision last updated: 17 February 2019