HIS HONOUR: Otukinekina Taani appears today for sentence in relation to an offence for which he pleaded guilty at the Local Court and was committed for sentence to this Court. The final version of the "indictment", more particularly the Court Attendance Notice, alleged against him that he on 2 March 2008 at St Leonards recklessly caused grievous bodily harm to Shane Foster. This is an offence contrary to s 35(2) Crimes Act 1900. It carries a maximum penalty of 10 years imprisonment and has a standard non-parole period of four years imprisonment.
The prisoner was born on 23 August 1970, he was thus as I would calculate it 37 years of age at the time of the commission of the offence and appears before me now aged 46 years. There has been considerable delay in the matter which I will deal with by reference of the evidence in the sentence proceedings shortly.
The prisoner was arrested on 5 November 2014. His brother, Saula Taani was apparently charged shortly after the relevant events on 2 March 2008. He was charged, as I would understand it, with related offence or offences, however the charges against him were dismissed at the Local Court as I understand it on 10 September 2008.
The prisoner pleaded guilty in my view at the first reasonable opportunity. He was committed for sentence and thus in my view he should receive a discount of 25% upon the otherwise appropriate term of imprisonment to recognised the utilitarian benefit of the plea of guilty in accordance with the guideline judgment from 1999 of Thomson and Houlton v R , particularly in the judgment of the learned then Chief Justice Spigelman.
There is an agreed statement of facts somewhat unsatisfactorily framed in my view and it lurches from the present tense to the past tense. However in addition to the agreed facts I have evidence from the prisoner which I will deal with shortly, as well as closed circuit television footage of the relevant events. I viewed that footage in the presence of the parties when the matter was before me earlier in March and I have viewed it extensively since the matter was before me.
The matter was to proceed on a Thursday, however I could not start the matter till sometime after 4pm because of other sentence matters in the list, I also had a jury on verdict in a trial. The following morning I listed the matter to ensure that it proceed promptly rather than be stood over for an extended period of time and heard evidence and submissions in relation to the matter before getting on with other sentence work, as well as my jury in the trial that was part-heard. I was supposed to sentence Mr Taani on 24 March, however I was not able to do that on that date because of the fact that I was close to summing-up in another trial that I had started the previous week and there were a number of outstanding legal issues to discuss with the parties which meant that I had to stand the matter over till today.
The prisoner in my view was left in an unsatisfactory state of uncertainty from 24 March and I propose to reflect that by backdating the orders of imprisonment to 24 March to reflect the fact that the matter did not proceed on the date that I had originally fixed through no fault of the prisoner. I believe it is probably only the second time I have been obliged to stand over a sentence matter in these circumstances because of the weight of other work.
The statement of agreed facts identifies the victim as being a patron at the St Leonards Tavern which is as I would understand it in the vicinity of St Leonards Railway Station on the Pacific Highway, not too far away from the College of Law. The victim apparently had been playing pool. He had been drinking inside the tavern spending his money there, obviously without being told that he had had too much to drink from 4.30pm the previous day. The prisoner in the early hours of the morning of 2 March 2008 was employed by a security company as a security guard.
My understanding is the prisoner had worked at the tavern for a lengthy period of time, that is within the previous year and had worked on many days per week at that particular tavern. According to the agreed statement of facts he was actually working "with other security guards" although the only person that I could identify as affecting any form of security duty apart from the prisoner was the prisoner's brother who apparently was off-duty at the time of the relevant events.
The relevant events occurred shortly after 3.11am. The victim was playing pool with other people and the facts state that the prisoner put his pool queue down onto a table and raised his hands in the air. At that stage the prisoner was standing outside the tavern. The film that I observed and the agreed facts state that the prisoner entered the tavern, walked over to where the victim's jacket was, a black leather jacket it would appear to be, picked it up from a bar stool and then started to escort the victim to the exit door out onto the street. The facts state that when the two of them arrived at the door the victim attempted to go back into the tavern and was grabbed by the offender under his armpit from behind, at which point the prisoner was joined by his brother Saula, and according to the agreed facts, both the prisoner and Saula began to push the victim out of the door as the victim resisted leaving the premises.
I pause for a moment to point out that there were two points of resistance from the victim. When first escorted from the place where he was given his jacket the prisoner had his hand on the back of the victim and at one point, probably 3 or 4 metres from the door the victim stalled and then again when he got to the doorway. At that point the victim was surrounded, if I can use that expression, by the prisoner and his brother he again appears to stop and resist being ejected from the premises.
The agreed facts state that at the doorway the prisoner punched the victim to the face, he fell backwards into Saula. The victim remained between the brother and the prisoner while the prisoner commenced to punch the victim a number of times. I observed at least three clear blows to the head but there were other blows thrown. It is said in the agreed facts that Saula was behind the victim hanging onto him and eventually Saula was pulled away by a person described as a patron which can be seen on the security footage.
The victim fell down onto the ground onto his chest with his head facing down. The prisoner then walked away from the victim and walked outside the tavern while the prisoner's brother, who I point out should never have been involved in this affair at all for any reason, eventually returned to the point where the victim had remained motionless on the floor for at least 20 seconds and started to pull him up. The prisoner walked around the victim at one point and eventually the victim was either pushed or escorted out of the tavern onto the street and the prisoner is said to be pushed away from the tavern. He was found by police on the Pacific Highway about 50 metres from the tavern sitting on the footpath.
The agreed statement of facts state that a large amount of blood was on the footpath around him. He was clearly intoxicated and had blood coming from inside his mouth. The victim was taken to the Royal North Shore Hospital and I have, apart from the agreed statement of facts, an expert certificate from Dr Andrew Montague, Deputy Director of Medical Services at Royal North Short Hospital, setting out in greater detail than the agreed facts the character of the injuries suffered.
To cite what is set out in the agreed facts, the victim was found to have comminuted or fragmented fractures through both the left and right sides of his mandible or jawbone. These fracture lines extended to the victim's teeth, two of which were lost. The victim remained in hospital for three days and had surgery which involved the insertion of four plates around his jaw. He lost feeling in his bottom lip underneath his chin. He had to be readmitted on 22 March 2008 for further surgery to remove the mandibular plates due to his teeth not aligning when he shut his jaw and arch bars were applied in order to keep the victim's mouth closed and aligned and they were removed approximately six weeks later after further surgery on 6 May 2008. The facts in keeping with their standard cite the year as 2005. The victim was unable to open his mouth during the time the arch bars were applied.
The facts also state that the prisoner flew to New Zealand on 5 March 2008 with the brother being charged for abundant accuracy on 8 April 2008. The prisoner was not arrested in relation to the current matter until 5 November 2014 when he arrived at Sydney Airport to return permanently to Australia from New Zealand where he had primarily resided from the time he left Australia in 2008. Apart from the CCTV footage to which I refer, I have some stills of images shown on that footage but they add little to what the CCTV film shows.
The victim has provided to the Court what is described as a victim impact statement. That particular statement from the victim sets out the effect upon him of the injuries suffered, although it is in the form of a statement to police dated February 2015. The victim states he has no memory of the assault. The last thing he can remember is getting his jacket from the club and being escorted out of the tavern. He states that the assault had a huge effect on his life and he said that one of the consequences of the assault upon him is that he is, to quote his words:
"…actually afraid of males of Islander appearance. I know this is an irrational fear but if I see them I will walk across the road to avoid them."
He spoke about the problems or complications from the surgery initially performed on him. He talked about the initial loss of two teeth but subsequent loss of other teeth that were loosened at the time of the assault and fell out over a period of 12 months after the assault. He has received various quotes for dental work and in fact went to Thailand and received advice there as to the cost of repairing his teeth.
This statement, I hasten to say, was not objected to, but it must be reasonably said, approaching the matter with an objective eye that it would be difficult to identify other injury to other teeth other than the ones I have observed. Bearing in mind the wear and tear of course that occurs as one grows older, particularly to one's teeth.
The victim does however say that since the assault he has had difficulty eating food and particularly hard foods. He said he initially lost feeling in his bottom lip but he said this has mostly returned but he still had no feeling in his chin and thus by reference to both the contemporary medical evidence and the victim impact statement one can see the permanent affects upon the victim to which I will refer in a moment.
The prisoner when he committed this offence had no prior criminal convictions in Australia or anywhere else as far as I am aware. However he was convicted in New Zealand at a "District Court" of three offences which he explained in his evidence. I accept the evidence he has given about the general circumstances of the offending. Given the character of the offences the penalties imposed are more in keeping with the explanation given by the prisoner than the conduct of the prisoner shown in the facts of this case.
The offences he committed in New Zealand were committed on 13 June 2009. They were offences of manually inflicting injuries with intent to injury, as it can be shortly described as best I can from the offence description, threats to kill and to grievous bodily harm by verbal threat and an offence described as "other kidnapping". I have got no intimate knowledge of New Zealand jurisprudence, or particularly its criminal law, beyond matters relating to the conduct of criminal trials. But those charges fit in with the short description given by the prisoner of meeting the victim and taking him against his will in the context of some affront to the prisoner's family.
In respect of those offences he was convicted and sentenced to what was described as "home detention" for one year in respect of each offence. The sentences were imposed on 29 June 2010 and commenced on 1 July 2010. The commission of those offences of course is relevant in this matter as it might reflect upon the prospects of rehabilitation of the prisoner. But for the purposes of sentencing the prisoner, I accept that the prisoner committed the offence with which I am concerned as a person of good character with no prior criminal convictions and was, to his credit in that context , a mature man.
Apart from the oral evidence of the prisoner which as I said I can deal with in the context of analysing the facts there is a body of other material. There is a psychological report that sets out some history of the prisoner. There are some references, one from an Elder or "Bishop" of The Church of Latter Day Saints at Campbelltown, a reference from a community leader, a reference from his former employer the St Leonards Tavern and a large number of family references.
The psychological report I can deal with again in a short time. But dealing with the personal reference material it shows, amongst other things, the prisoner is a religious person. He is a person who is regarded by the Elder of his church as "honest, humble and polite", doing the best for his family. The St Leonards Tavern spoke of him being a person who worked industriously for a period of about eight months and treated managers and staff with great respect and courtesy. The Elder of the Tongan community tells the Court that he is aware of the character of the allegations against the prisoner. He reflected upon the fact that violence was a common way to "discipline" persons and it is said that his may or in fact happened to this prisoner. Interestingly the psychological report history given by the prisoner does not confirm that that was the case. Be that as it may, one would have thought that in the scheme of things that his upbringing and any discipline provided to him by his parents in a parental context offered little in the way of explanation for the conduct for which I am concerned. He is described by the Elder of his community as a person of good manners and seeks to improve his life here in Australia and that the prisoner has expressed sorrow for his conduct and apologised for his conduct.
One other reference was from a football club called the Minto Cobras, a junior rugby league club. I note its contents, however, I also note that it cannot possibly be correct that the prisoner has been involved with the club "for the last four years",as stated in a reference dated 29 May 2015,when I know that he did not come back permanently to Sydney until the date of his arrest 5 November 2014. Having said that he is regarded positively by that community.
With regard to the various references from family members they are glowing in their praise of him as a role model, as a person who cares about his family and cares for their welfare and is anxious to improve their lives and I accept that is so. He provides a great deal of support to his family which I accept. The history that he gave the psychologist confirmed in his evidence before me shows that he has 11 children, six sons and daughters ranging in age from about five to 24 and a number of grandchildren as I would understand it, and at the present time or at the time of the preparation of the report which is dated 10 September 2015 he was living in premises occupied by 19 people including extended members of his family.
So far as his general background is concerned he was born in Tonga. He travelled to New Zealand at the age of 32. He had previously married as I would have understood it in Tonga. He lived in New Zealand for a period of time. He came to Australia in 2007 and left Australia as I said in early March 2008 to finalise his wife's residency here in Australia and the family returned to Australia in November last year to reside here permanently. He comes himself from a large family. He is apparently the twelfth of 13 children. He has no major health issues, although he has suffered an industrial accident losing part of a finger in a forklift accident. The prisoner has worked in various types of employment over the years, both agricultural, security, factory and construction. Whilst living in New Zealand between 2008 and 2014, as I would understand it, he was employed as a driver of forklifts at a farm and also worked as security guard in the evenings and as I said in Australia he worked as a security guard "typically working 7 evenings per week".
He reports no history of mental health difficulties. He has never been previously diagnosed with a mental health condition or illness, denied any psychotic symptoms and does not provide any history of any psychiatric or psychological condition which informs his conduct so far as the matter with which I am concerned today.
There is assessment of his intelligence. The only psychometric testing undertaken in accordance with the Wechsler Abbreviated Scale of Intelligence, Second Edition, which places him in terms of his "perceptual reasoning score" as being equal to or better than 8% of the people within his age range. I will come back to the significance of that assessment again shortly.
I just point out as I did earlier in summary that the history that he gave the report was that:
"Despite being raised in a culture that traditionally utilises harsh physical discipline and where it is not uncommon for people to engage in behaviours that we here in Australia would consider violent or beyond the scope of acceptable punishment (the prisoner) does not hold beliefs consistent with this. He himself was not punished physically and he does not utilise physical punishment or violence within his own family".
I have taken into account all the material that has been tendered on behalf of the prisoner as one would expect.
The prisoner gave evidence about the incident and the circumstances of his leaving Australia. In dealing with the evidence that he gave, I have considered this evidence in the context of the agreed facts that he signed as well as what can be shown in the closed circuit television footage. In my view in his evidence he sought to downplay his role in relation to this matter. He made what as I regard as the absurd claim in reaction to a question that I asked him, that the victim was bigger than him. He also sought to assert that he was acting in self-defence, a matter that he seemed to assert to the psychologist. He also told me that the victim had said to him, as I would understand his evidence, bearing in mind I do not have a transcript of the sentence proceedings, to "speak English" when the victim was at the doorway. The victim clearly stopped at the point of departure and for a short time momentarily tried to resist ejection from the tavern.
I point out that I watched this film very closely and the first thing that I noticed about the striking of blows was that the victim at the time that he was struck by the prisoner was actually turning towards the prisoner's brother after being pushed by the brother through the doorway. The victim was not actually looking at the prisoner as the first blow struck him side-on into the jaw. Whether that is the blow that broke his jaw or not I do not know, but certainly it is clear on the evidence of the film that the victim was not looking directly at the prisoner at that time.
Although there is the evidence from the film of the victim's resistance, in my view the victim's resistance was nothing more than token and there certainly was no resistance by the victim involving the throwing of blows or any actions of a threatening manner. I point out as the film shows the victim was carrying his coat in one hand so that he in effect only had one free arm at all relevant times. As I said the brother's involvement was entirely unnecessary up until even the point after the first resistance of the victim the prisoner clearly had the matter under control. As the film shows the prisoner was slightly taller than the victim. They may be near to equal height, but certainly much better built, that is more strongly built and heavier.
His counsel from the outset made it plain to the Court that his client spoke very little English. I am prepared to accept that he does have limited English. Although this is somewhat surprising given the fact the prisoner had lived in New Zealand for a number of years before he came to Australia and has lived in Australia it would appear now for over two years, including the time that he was here in 2007 and 2008 and returned to live in New Zealand for some five or six years before he returned here in 2014. If the victim did say "speak English" it would be little surprise if in fact it was the case the prisoner at that point could not speak English very well and would have thus difficulty communicating what he wanted the victim to do.
The prisoner in my view in his evidence sought to downplay both the number of blows that he struck the victim and the effect of the blows with which he struck the victim. In his evidence before me he disputed the time that the victim was on the ground clearly shown in the video and specifically stated in the agreed facts. A number of the blows struck by the victim after the first blow to the head were thrown as the victim was actually sliding to the ground, in other words diminishing in stature, as he was either held or leaning against the brother of the prisoner.
In the context of any claim of self-defence I note the prisoner was clearly sober. I assume he is a person who does not drink by reason of his religion. But, in any event, it is not claimed that he had been drinking on this night as one would expect of a security guard. The victim was heavily intoxicated and somewhat unsteady on his feet. I have already dealt with the difference in size.
The prisoner was a trained security guard. He had undertaken some training in Australia. He had experience of this work in Australia at least for some months before this particular point of time. At the point of time that the victim may have resisted departure from the doorway of the tavern, unbeknown to the victim I hasten to say, at that particular point of time the prisoner's brother, a similarly heavily built person bigger than the victim , was immediately present pushing the victim out the door. I am mindful that the brother was charged in relation to related offences or a related offence and discharged at the Magistrate's Court. There is no issue in this sentencing proceeding about him being involved in some joint criminal enterprise, but clearly the facts are there for all to see in the film that he contributed to this situation. His pushing of the victim through the doorway, as I said, was totally unnecessary and uncalled for.
It is clear from the film of the incident that the prisoner must have been aware of his brother's presence, to assist if need be, and of course as I said at that point the victim posed no real threat to the prisoner at all. If the prisoner did react to the words 'speak English' the only rational explanation for the prisoner's violent conduct is he lost his temper or his self-control. He certainly behaved as a man who was angry because, after the victim fell to the floor, he had no regard for the victim at all but strutted around between the threshold of the tavern and the outside area. Whether he was oblivious to the victim or simply trying to control his emotions one cannot say. I am not assisted at all by the prisoner's evidence in this regard.
I note in the context of the prisoner's claim lack of English that the police visited the tavern apparently later that same morning. The prisoner gave evidence before me that he gave a version to police which he thought satisfied the situation. The police obviously did not arrest him at that time. Although no one can safely assume, although the matter was not directly addressed in evidence, he spoke to the police in English not in Tongan.
One of the matters to be borne in mind relation to the position of the victim is that if he did not understand what the prisoner was actually saying to him, it is to be understood that he had been at this tavern for a period of nearly 12 hours spending his money, no doubt, and was entitled to some explanation as to why he would need to be ejected at this particular time of the morning. One would have expected from the training and the experience of the prisoner that he would have a full understanding of the responsibility he exercised in dealing with intoxicated people and, as I said , he had experience of working in this particular tavern over a period of time.
In the context of matters raised in submission by the parties and having regard to the evidence available to the Court, there is no doubt at the relevant time the victim was struck he was vulnerable. He was vulnerable in a range of ways. There was his state of intoxication, there was his unsteadiness, there was his carrying of his coat which clearly temporarily "disabled" one hand or arm. He was effectively surrounded by the prisoner and the prisoner's brother and as I said the first blow that struck him occurred at a time as he was reacting to being pushed by the prisoner's brother and thus distracted.
The power of the blows that were struck were grossly disproportionate in any event to any insult that may have been conveyed by the words 'speak English'. If the prisoner reasoned that he needed to strike the victim to placate him or to subdue him, clearly one blow was enough. But as I said the prisoner threw more than one blow. The power of the blows was obviously severe as one can see in the closed circuit television and of course the character of the injuries reflect the effect of at least one of the blows that was struck.
I accept of course the injuries fall well below the most severe injuries contemplated by this relevant provision. Grievous bodily harm may include permanent brain damage, paraplegia, et cetera, which can be seen as far more serious permanent injury than that suffered by this victim. There is one other matter to take into account as in my view a matter of "aggravation" in the general common law sense as contemplated by s 21A(1) Crimes (Sentencing Procedure) Act 1999, if that is the correct expression. The prisoner at the relevant time had responsibility for the victim's welfare. He failed in his discharge of that responsibility by striking the victim at all. But that having been pointed out, knowing that he had rendered the victim helpless by the blows and was clearly injured at that particular time as it would appear the victim lost consciousness as his own statement to this Court reveals, the prisoner then offered absolutely no assistance to him whatsoever other than at a later time guiding him into the street to allow him to either wander, crawl or stagger away from the tavern. Perhaps it may be fairly said that greater responsibility for the care of the victim might have fallen to other people who are not immediately involved such as the management of the hotel or were not emotional involved in the events that occurred.
The victim's drinking associates would appeared to have tried to intervene. At least one tried to stop further intervention of the prisoner's brother, but the prisoner must bear some responsibility for leaving the victim helpless in the street. Of course at that point the prisoner must have known that the force he used was great and unjustified.
I accept the prisoner's explanation in relation to the charges he was convicted of in New Zealand and I have already noted that matter and the significance of those convictions or relevance of those convictions in this sentencing exercise. In relation to his knowledge of the injuries suffered by the victim I had a great deal of difficulty however accepting the prisoner's evidence that in his communications with his brother whilst he was in New Zealand and his brother was in Australia he had no knowledge of the serious injuries suffered by the victim.
I return now to the psychological report. In my view in some respects this is a most unsatisfactory document. I appreciate Duffy Robilliard Psychologists are reputable, unlike some people preparing reports for this Court from time to time. However the document itself has very limited findings in the context of what I see is a most unsatisfactory method of interviewing the prisoner. Part of the interview was conducted with the assistance of what is called a telephone interpreter, which is a most undesirable mechanism for interpreting a person speaking in a foreign language for the purposes of a psychological assessment. But also part of the interview was conducted in the presence of the daughter of the prisoner who "assisted with background information and some interpretation".
The issue of the prisoner's background the like is uncontroversial as I said. Ultimately, as I have already pointed out , the intelligence testing reflected upon the prisoner being at "borderline" capacity, particularly in relation to the matter such as non-verbal intelligence. It would appear with respect, accepting the report at face value, that there is not, as was submitted to me, any intellectual disability of mental illness which is causally related to the offending with which I am concerned . In fact one must approach the findings of the psychologist with some circumspection.
I have already pointed out the prisoner offers no excuse for his conduct by reference to the treatment of him as a child or in his cultural setting. I noted the psychologist reported the prisoner acknowledged wrongdoing and took "full responsibility for the offence". He expressed regret in his evidence before me. But in my view there were aspects of his evidence that I have already noted that reflect upon him failing to acknowledge full responsibility for his conduct, and ultimately I could not conclude that he was necessarily contrite or remorseful as required under s 21A(3) of the Act.
With regard to the issue of the prisoner's departure from Australia, a police officer gave evidence and various documents were tendered by the defence and the Crown in relation to this aspect of the matter. The prisoner gave evidence on the matter. I accept the evidence of the prisoner that he did not leave Australia to avoid arrest for tis matter. Although the police officer gave evidence of going to the address of the prisoner at Granville and perceiving the premises to have been somewhat abandoned quickly it would seem on her assessment , or abandoned in some haste, there is objective evidence that arrangements had already been made in late February for the shipping of the prisoner's furniture and other belongings back to New Zealand. The prisoner's explanation for returning to New Zealand to assist his wife to obtain residency in Australia I accept. Whilst his departure for New Zealand is close to relevant events and whilst he must have known there was some form of investigation occurring, given the documentary evidence of prior arrangements for shipping and prisoner's evidence, I cannot conclude that he fled the country to avoid arrest.
He may have also thought that he dealt with the matter when he had spoken to police. But he must have been aware that the victim had suffered some substantial injuries. We do not have the details of what the police told him, but given the agreed facts as to the condition he was in when he was found on the roadway the police must have conveyed something of the character of that in their initial inquiries. The prisoner spoke of the communications he had with his brother when he returned to New Zealand. That must have put him on notice of the seriousness of the injuries suffered by the victim.
It should be born in mind on any view of the film and or the prisoner's own version of events of course the brother did not strike the victim at all. The only person to strike the victim was the prisoner. Thus, he must have understood at relevant times he primarily responsible for the injuries that were suffered. He must have understood of course that the police would have an interest in him. But that having been said it may well be over the years that he may have thought that the matter had to use an expression "gone away".
There is evidence that prisoner in fact came back to Australia in 2013 via Brisbane Airport to attend to Family Court matters. Whether or not he knew there was an arrest warrant for him in place is not something I can make any positive finding about. But one would think that he would not have understood that. If there was an arrest warrant in place he should have been arrested when he came into Brisbane. I accept that he was unable to return to Australia from the middle of 2009 till at least the middle of 2011 because of the Court proceedings and the sentence imposed in respect of the convictions in New Zealand.
The issue of delay was raised by learned counsel for the prisoner as it was addressed by counsel for the Crown. In that regard it was said by counsel for the prisoner to be "value neutral". In relation to the issue of delay it can have a range of relevance in sentencing proceedings. I refer to two particular decisions, Mill v R (1988) 166 CLR 59, particularly the discussion that appears at pp. 63 - 66 of that judgment and a case extensively cited in that judgment of R v Todd (1982) 2 NSWLR 517, particularly the Chief Justice's observations at pp 519-520. The delay in sentencing may be relevant in considering the state of uncertainty in which a prisoner has been left knowing that proceedings are pending perhaps in another State. This was the situation in Todd. Also in Todd the situation required consideration of the progress of rehabilitation while serving substantial sentences for offences committed in Queensland of the type that had been committed at about the same time in New South Wales, for which Mr Todd returned to New South Wales to be sentenced. These issues do not arise in this matter to any extent. The prisoner was under no state of uncertainty based upon his evidence. As I said he probably thought the matter had gone away and certainly did not indicate that he was aware that he was to be arrested when he arrived back in Australia in 2014.
As to the progress of his rehabilitation I note of course the subsequent offending in New Zealand, although I accept his explanation for that offending. It is of a character different than that with which I am concerned. In Mill and in Todd it was approved that in sentencing a person after a long period of time after the commission of offending in a particular case, the exercise:
"(W)ill often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence. At times this can required what might otherwise be quite undue degree of leniency being extended to the prisoner".
I accept that that general proposition could apply in a case even if a person is not being sentenced having served a term of imprisonment in another jurisdiction. But is to be borne in mind of course that Todd and Mill were concerned also with the concept of totality of sentencing considering appropriate sentences for offences committed in New South Wales by regard to sentences that were imposed interstate at a much earlier period, a situation that does not arise here. Ultimately, as was said by counsel, the matter is essentially "value neutral", save for the matter I observed about the offending subsequently.
I was also provided with a range of summaries of sentences imposed in respect of offences pursuant to s 35 Crimes Act, both before the introduction of standard non-parole periods afterwards. Many of the cases referred to before the case are of no assistance whatsoever particularly given the fact that, as I have pointed out , that this is an offence that has a standard non-parole period of four years imprisonment which did not exist as I understand it before September 2007. Some of the offences that are cited are offences pursuant to s 35(1) and (3) and thus, in clear terms, are irrelevant. I am concerned if there by a relevant comparative sentences to be considered with matters requiring consideration of s 35 (2) Crimes Act 1900.
Reference was made in the submissions of learned counsel for the prisoner to two particular judgments that might provide some guidance or assistance. One a decision of Dungay which is summaries and another decision of Thawer from 2009. It is to be borne in mind as was recently observed by the Court of Criminal Appeal, that fixating on one particular comparative sentence is not to be advised. All sentencing exercises have their differences, although I appreciate of course the industry and providing the Court with a range of sentences imposed across a range of offenders and offences. By reference to the particular cases cited by learned counsel for the prisoner on the basis of the summary provided to the Court one can see substantial differences particularly in terms of the responsibility of this prisoner to that of Dungay. There are differences in the execution of the crimes and differences in relation to the state of the prisoner at the time of the commission of the relevant offending. But I have had regard to that material as best it can provide some general guide of range of sentences imposed for "similar" offending.
Likewise I have had regard to the statistics that were provided to the Court. They were relied upon by counsel for the prisoner particularly in relation to statistics concerning persons with no prior convictions pleading guilty charged with only one offence, showing that 40% of offenders sentenced pursuant to s 35(2) were sentenced to terms of imprisonment leaving 60% of other offenders not to be sentenced to those of imprisonment. The other statistics are largely concerned with one offence only and a plea of guilty involving all classes of offenders. Again statistics themselves are of limited value as the Court of Criminal Appeal has made clear on a number of occasions.The observations of Chief Justice Spigelman in the decision of Bloomfield reflect upon that in the context of considering statistics at appellate level. But many of the observations his Honour made are of some relevance here. One does not know obviously from statistics what particularly discount was given for the plea of guilty, the power of the subjective case, the relevance of mental health issues and the like also the detail of the objective facts. It is to be borne in mind that a starting point in any consideration of appropriate sentence for an offender is an assessment of the objective seriousness of the particular offending with which the Court is concerned.
Many of the submissions of the parties have been referred to and dealt with in the course of the treatment of the material available to the Court in the evidence produced. Both parties agreed that the matter was below the middle range of objective seriousness in the context of the relevance of that expression in sentencing an offender for an offence that carries a standard non-parole period. The ratio of Way v R [2004] was set aside by the High Court in Muldrock v R [2011] 244 CLR 120, particularly at [18] - [30]. Following upon Muldrock of course the legislature made amendments to the relevant provisions s 54A and s 54B of the Act. The standard non-parole period pursuant to s 54A(2) represents a non-parole period for an offence of the middle range of objective seriousness in the Table of the Division, only taking into account the objective factors affecting the relative seriousness of the offence. S 54B(2) provides that it was a matter to be taken into account in determining the appropriate sentence for the offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentencing, including of course the subjective case, the prior good character of an offender and other matters, including the consideration of whether special circumstances arise pursuant to s 44 of the Act.
In this regard the learned Crown Prosecutor submitted that the offending objectively was "just below" the middle range of objective seriousness. Learned counsel for the prisoner submitted that it was slightly lower than that although it was accepted the offence was serious. As I would understand the submissions made by counsel for the prisoner, he primarily relied upon what is self-evident from the facts the lack of planning and premeditation in the conduct of the prisoner. Clearly the offence is not at the lowest level of seriousness, or even towards the lower level of seriousness, having regard to the responsibility of the prisoner and his lack of care for the victim, the state of the victim and his vulnerability, the number of blows struck and the injuries suffered.
Whilst there was a lack of premeditation one has to take into account those matters that I have just identified, including I hasten to say, the absence of any substantial provocation, the number of blows struck and the condition in which the victim was rendered almost immediately from the time that the first blow was struck. The injuries have left a permanent disability or injury for the victim, although on the scale of such permanent disabilities it is at the lower end of the scale. It cannot be over-emphasised that a blow to the jaw and the resultant damage to teeth and the mouth can cause excruciating pain and discomfort that can remain with a person for life including affecting the comfort of a person in the execution of even simply tasks such as eating food as is the case here. I would categorise the objective seriousness of the offending at a level just below that categorised by the Crown but above that suggested by learned counsel for the prisoner.
Although there are authorities that point to the fact that minute characterisation of the objective seriousness is required that the degree of precision is not one that requires mathematical exactitude. Nobody could disagree however with the fact that the offending is serious offending and for reasons I have identified it is a matter where general deterrence must be given some emphasis to deter others in the position of the prisoner, that is those involved in the security industry with responsibilities for the welfare of patrons of licensed premises and the like, from using violence when it is unnecessary and excessive as it was here.
In the course of the submissions, taking into account the various factors identified by learned counsel for the prisoner, ultimately he conceded notwithstanding s 5 of the Act that a term of imprisonment was appropriate. But as I understood his submissions he submitted it would be one that required consideration of a sentence that would permit a sentence other than fulltime custody. I take his submission to be in accordance with the reasoning of Justice Howie in the decision of Zamagias from 2002. The Crown's position was that it was a case whatever the length of the sentence that required in the context of the weight to be given to both personal and general deterrence a sentence of fulltime custody.
I have had regard to the purposes of sentencing, including of course the need to adequately punish the prisoner and deter him and others from committing the offences, to make him accountable for his actions and to denounce his conduct as well as recognise the harm done to the victim. I do not believe the community requires protection from the prisoner. There is nothing in the nature of his psychology or his psychiatric condition, or his general conduct that suggests that he is a danger to the community. I am also required to promote his rehabilitation, noting his already acquired maturity.
With regard to the issue of other matters to be considered under s 21A, I have reflected upon the fact that the critical aggravating factor that might be identified under s 21A(2) of the Act is the vulnerability of the victim.
With regard to mitigating factors that arise under s.21 (3) of the Act , I accept the offence was not part of planned or organised criminal activity. I accept the prisoner did not have any record of the prior convictions, that he was a person of good character. Although he has committed offences in New Zealand ultimately I am prepared to accept that he is unlikely to reoffend. He has extensive family commitments and I accept that generally speaking he is a peaceable family man. In all the circumstances I am prepared to accept on balance that he has good prospects of rehabilitation, although I was not persuaded that he had shown remorse, that is by accepting full responsibility for his conduct. His plea of guilty is a mitigating factor for which he receives a discrete discount.
To return to just one matter that I referred to in passing. The learned counsel for the prisoner submitted that I would not give weight to general deterrence or lesson the weight to be given to general deterrence in the context of the psychological report. I have already pointed to some unsatisfactory aspects of that report. I noted the observations of the then learned Chief Judge of the Common Law division of the Supreme Court Justice McClelland in the decision of De La Rosa [2010] NSWCCA 194, particularly his Honour's observations at [177] - [178] where his Honour summarised a range of principles that have developed over particularly the last 20 years including the proposition that a person's mental condition or mental disability may have the consequence that the "offender is an inappropriate vehicle for general deterrence" resulting in a reduction of the otherwise appropriate sentence. This was a matter stressed by his counsel. I do not accept that there is a relationship between what is described as 'borderline intelligence' and his conduct on this occasion. Certainly there is nothing in the evidence available to me to show the prisoner has an ongoing mental disability of condition, even allowing for the fact that Justice McClelland pointed out that the mental health problems of an offender need not amount to a "serious psychiatric illness before they will be relevant to the sentencing process".
I have determined that there are "special circumstances" that require and adjustment of the relationship of the non-parole period of the balance of the sentence pursuant to s.44 of the Act. Particularly there is a need to assist the prisoner to adjust to community living on his release. He has never been in prison before as I would understand it. I would understand that he was not imprisoned in New Zealand in respect of the matters for which he received some form of home detention order. In my view, in the context of the total sentence to be imposed , I have concluded I should adjust the non-parole period and I have explained the date from which the sentence should commence.
Could you stand up please Mr Taani. In respect of the offence to which you pleaded guilty you are convicted. You are sentenced to a term of imprisonment by way of non-parole period for a period of one year and one month and I date that sentence in the context of what I said earlier from 24 March 2016. I direct that you be released to parole on 23 April 2017. The balance of sentence as I have calculated is one year two months. It will expire on my calculation on 23 June 2018. The conditions of your parole will be a matter for the Parole Authority.
HIS HONOUR: Yes Mr Crown are there any technical or other matters from you?
MCAULIFFE: The sentence is to commence on the 23rd?
HIS HONOUR: 24th expiring on 23rd.
MCAULIFFE: I have no further orders.
HIS HONOUR: I didn't consult with you on this issue of giving him credit for that period.
MCAULIFFE: I don't wish to be heard.
HIS HONOUR: But in fairness to him he came here expecting to be sentenced and I was deeply regretful I couldn't deal with the matter unfortunately. I could have sentenced him if I'd had time but the problem was the time factor in the context of where my trial was balanced. In fact I started summing-up just before lunch and was still summing-up early the next morning. So unfortunately for the prisoner I couldn't deal with the matter then. He's had the benefit of having Easter with his family. Yes Mr Hutchinson any technical matters from you?
HUTCHINSON: No your Honour.
HIS HONOUR: Thank you madam interpreter. Could you ask the prisoner if he understands the sentence that I have imposed.
INTERPRETER: Yes he does.
HIS HONOUR: Tell him he'll be subject to his appeal rights and the Crown's appeal rights. Could you interpret that for me. Subject to the Crown's appeal rights and his appeal rights he'll be released to parole in April next year.
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Decision last updated: 22 February 2017