Director of Public Prosecutions (NSW) (Crown)
AKN & Associates Pty Ltd (Offender)
File Number(s): 2018/00018994
[2]
Introduction
Daryl William Thomas pleaded guilty in the Local Court at Campbelltown on 13 February 2019 to an offence of causing grievous bodily harm to SR when reckless as to causing actual bodily harm to him. The offence is contrary to s 35 (2) Crimes Act 1900. The maximum penalty specified for the offence is imprisonment for ten years.
[3]
Standard Non-Parole Period
There is a standard non-parole period of four years for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999.
The provisions introducing standard non-parole periods are found in that part and division of the Crimes (Sentencing Procedure) Act. They were amended to their present form after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39 and thus the provisions therein now specify that the standard non‑parole period for an offence is that which is included in the table to the provisions; the standard non-parole period represents the non-parole period for an offence in the table that falls within the middle of the range of objective seriousness, taking into account only the objective factors affecting the relative seriousness of the offence; the standard non-parole period is a matter to be taken into account when determining an appropriate sentence, without limiting the matters that are otherwise required or permitted to be taken into account; and the Court must record its reasons for setting a non‑parole period that is longer or shorter, identifying the factors taken into account.
Objective gravity will be assessed in this case upon the consideration of objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders but wholly by reference to the nature of the offending, bringing to account relevant factors provided in s 21A Crimes (Sentencing Procedure) Act, except for those that are essential elements or integral characteristics of the offence.
The fixing of a non-parole period in a sentence is but part of the task whereby the Court determines what is the appropriate sentence, regardless of whether guilt is admitted or established after trial, and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences. The Court must not embark upon an arithmetical or staged or tiered process of reasoning when assessing sentence but must identify all relevant matters bearing upon the question of the appropriate sentence in a process of intuitive synthesis, such as was discussed by McHugh J in Markarian v R [2005] HCA 25.
In determining a sentence for an offence for which there is specified a standard non-parole period, it and the maximum penalty are legislative guideposts for the sentencing court, along with other established sentencing practices and by reference to matters identified, where relevant, in ss 3A and 22A and 22 Crimes (Sentencing Procedure) Act.
I find applying these principles the objective gravity of this offence upon which I am to determine sentence falls slightly below the mid-range of objective seriousness. I should add to this discussion that these principles were discussed by Johnson J in Tepania v The Queen [2018] NSWCCA 247, particularly at para [110] and following, and with the additional reasons at para [112], which his Honour expressed in the following terms:
"In sentencing for an offence (whether or not a standard non‑parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence."
Thereafter his Honour referred to authority upon which those principles were offered and then embarked upon a discussion of what was meant by "moral culpability" including reference to portions of what the High Court said in Muldrock v The Queen ibid, to the effect that limited moral culpability might mean that retribution and denunciation do not require significant emphasis.
His Honour also referred to Munda v State of Western Australia [2013] HCA 38, where it was said that the circumstances of an appellant being affected by an environment in which the abuse of alcohol is common must be taken into account in assessing personal moral culpability, to be balanced with the seriousness of the offending.
Such is of application in this case where, upon the history I have, this offender was brought up in an environment where abuse of alcohol was an everyday occurrence, to which events in his life later contributed, and I speak of the loss of his partner, the death of his parents, and an industrial accident, after which he lost his work and suffered some financial imperilment. To a limited extent therefore his misuse of alcohol must be brought to account, notwithstanding the bald terms of s 25A (5AA) Crimes (Sentencing Procedure) Act, which makes clear that self‑induced intoxication is not a matter to be taken into account as a mitigating factor.
His background of alcohol abuse and the fact that he was intoxicated together with the victim on this occasion though is brought to account in the assessment of objective gravity and, for the reasons I will continue to develop, as I have said I find this to be an offence that falls below the mid-range of objective seriousness but perhaps only marginally so.
I should observe that it is always a matter of judgment as to where one would place an episode of misconduct upon the scale of seriousness and minds will differ, but bringing into account the matters of which the Crown has reminded me in its written submissions I am satisfied that this is where I should place this offence.
The Crown concedes there are no applicable aggravating factors to be drawn from s 22A (2) Crimes (Sentencing Procedure) Act. I agree with the Crown's submission that the extent of the injuries, the nature of the attack, which came by way of a surprise, the pleas by the victim for the offender to cease, the reason given for the attack, and that the offender left the victim in circumstances where he in due course called triple-0 for assistance, all lead to the conclusion which I have expressed as to where this offence should be placed.
[4]
The Facts
The facts are before me as a statement of agreed facts.
On 13 January 2018 the offender and the victim were at the victim's apartment. They were drinking copiously and must have been intoxicated. There was another person present. There was some discussion as to where the offender and the other person would sleep in the apartment, the victim being concerned that they might, through perspiration and body odour, soil his furniture. This attitude was described as the victim being cheeky, causing the offender to take offence. He rose from where he was seated and went to the victim's bedroom and called the victim in. When the victim entered, the offender swung at the victim and pushed his head against the cement wall and banged it on the wall. He punched the victim in the head about ten times. The attack took the victim by surprise. He felt pain as a consequence of this attack. He repeated "Please don't.", but the offender said the victim should not have been cheeky to him. He told the victim not to tell the police what had happened and the victim said that he would not.
The offender left the apartment some time later. Before he did so, the victim asked the offender to fill his drink.
The offender left and went downstairs to another apartment, where another friend or associate was living, and knocked on the door. This person noticed the offender had a wound, which was bleeding, on his forehead. It is not further described and there is no explanation as to how it occurred. The offender told this person that he'd had an argument with the victim and that they had had a fight. He said that the victim started on him for some reason, which ultimately caused the argument and the fight. The inconsistency between that representation and the facts upon which I am to determine sentence might well be explained by the level of intoxication that the offender had achieved.
The victim, back in his apartment, continued drinking to try and numb the pain that he was feeling. He called triple-0 on his mobile phone about 30 to 45 minutes after the offender left the apartment. The victim decided he was going to need to go to hospital and an ambulance arrived and transported him to Liverpool Hospital where he was found, upon assessment, to be with ongoing agitation and reduction in the Glasgow Coma Scale from 15 to 13. He was sedated and intubated. An initial assessment revealed that he had a large right-sided extradural haematoma. The victim underwent emergency surgery for the extradural haematoma to be evacuated on 14 January 2018.
The victim suffered the following facial injuries:
A left zygomatic arch bone fracture,
A left orbital wall bone fracture,
Anterior and posterior walls of maxillary sinus fracture, and
Right skull vault fracture non-displaced.
The victim was transferred to Liverpool Brain Injury Unit on 6 February 2018. About three months post-injury he had made reasonable progress, with a further recovery of up to two years post-injury to be expected. Given the severity of the brain injury initially shown and the need for immediate surgery, he is expected to have residual permanent impairments, requiring supervision for high level cognitive function such as budgeting and open employment. The prognosis given is of an increased risk of post-traumatic seizures. However, at the time of the most recent expert statement by Dr Yong He Kim on 8 August 2018, there had been no such development. All of the injuries were the product of the assault perpetrated by the offender.
The offender was arrested on 18 January 2018. He participated in an interview. He admitted being at the apartment and drinking with the victim. He admitted being in the bedroom and calling the victim there and then having a fight because he retaliated to something the victim said but could not remember what that was. He had a vague memory that he thought he said that the victim should not have said whatever it was that triggered the offender to behave as he did. He had limited memory about the evening generally. He did admit that he knew that he had punched the victim to the face once or twice but could not remember if the victim had struck him. He expressed devastation that he had actually struck the victim. He said he picked the victim up off the floor where he had fallen to see if he was all right. He saw the victim on the bed and noticed he had blood coming from his nose. He felt uncomfortable and did not know whether to stay or go but ultimately left the apartment after pouring another drink for the victim in response to the request the victim made.
There is then reference to specific responses to questions in the electronically recorded interview in which the offender said, amongst other things, that he felt bad and that is why he went down to see the other person downstairs. He said he did not know his own strength, especially when drinking. He thus could not tell how hard he had struck the victim. He asked whether the victim would be all right. He could not believe that what he did was so serious. He again said that he hoped the victim would be all right and acknowledged that the fight should never have happened.
[5]
The Offender
The offender was born in 1976. He has a record of antecedents in New South Wales extending in the antecedent report to 22 pages. This is the most serious matter upon which he has been put before a court, and, as the Crown submitted, there is something of an escalation in what occurred here. The first appearance in court was in a Children's Court in 1990 for stealing and goods in custody. He continued in Children's Courts for stealing offences and malicious damage, goods in custody, failing to appear and being a child in need of care. There are traffic offences that he committed as a child. He appeared for offences of breaking, entering and stealing and using a firearm, possession of cannabis, carrying a cutting weapon, again malicious damage, attempting to steal a motor vehicle, possessing implements to enter a conveyance.
His first entry into the adult criminal justice system was in 1995 when he was charged with resisting arrest. That was taken into account for the determination of a sentence upon an offence of break, enter and steal. He has been before the court for street offences such as offensive language and assaulting police and resisting arrest, further traffic offences, including driving whilst cancelled, drink-driving, possessing prohibited drug, failing to appear, further offences of assaulting police officers, assault occasioning actual bodily harm, hindering or resisting police officers, failing to provide a name and address in circumstances where he was obliged to do so, further offences of assaulting police. There are repeats of these offences across his history. His drink-driving offences extended to high range prescribed concentration of alcohol and middle range prescribed concentration of alcohol, there are various types of driving offences, and multiples of assaults across his history but no more serious than assault occasioning actual bodily harm and assaulting police officers in execution of duty, which are of themselves serious enough, I might say. He has had various sentencing options employed, including conditional liberty and custodial sentences.
There is a record of antecedents from Queensland beginning in 2006 through to 2016 in the nature of street offences, drug offences and again assaulting and obstructing police officers in execution of their duty.
He has an interesting custodial record. He has been in custody for various reasons beginning - at least in adult centres - from 14 July 1995 and continued to return to custody between that date all the way through to October 2005. Then there was a gap of some five years to May 2010 and then he was in and out of custody for longer and shorter periods through to December 2010. Thereafter he was at large until September 2018 and then in and out of custody until he finally came into custody on 27 September 2018 after he failed to appear on multiple occasions and the Crown sought a detention order that was granted by the court. For this matter he has been in custody since 27 September 2018 and so the sentence I impose today will commence on that date.
The sentencing assessment report provides a balanced assessment of the offender in my view, and thus, notwithstanding the care that one must take when assessing representations attributed to an offender who has not given evidence and has not presented the information to have it tested by cross‑examination, and bearing in mind what was said by Smart AJ in Qutami [2001] NSWCCA 353, on the material I have I am confident that I can accept as reliable what has been attributed to the offender. The representations that are attributed to him could not be said to be self-serving. They paint a somewhat tragic life of someone who, as Mr Coyne put, the courts have unfortunately been required to deal with on a regular basis.
The report records that the offender endured the deaths of his parents, stepfather, stepbrother and his fiancée, who passed away next to him in bed following an epileptic episode in 2009. He has now a new partner in a relationship of some four years, which is positive by all accounts, and she is present in court offering her support. He has, as is recorded here, a number of violent offences on his record, including hostility toward police officers. He acknowledges that he has a problem with anger management. This has been supported by the information provided by his family upon investigation by the author of the report. He said that while it takes a lot for him to get angry, when he is intoxicated it is a different story. In this case he is at a loss to explain his motivation for the offence. I venture the opinion that it was as a consequence of his ingestion of excessive alcohol and the offence that he took at what was said by the victim, which caused him to take the unfortunate decision to perpetrate this egregious crime, leaving his friend profoundly injured. He is a chronic cannabis user, which could not be providing him any benefit at all. There is reference to his lack of parental modelling in any positive terms through his formative years. The modelling that was provided was to perhaps normalise violence and the abuse of alcohol. He has accessed addiction support meetings during his current period of custody and I am told from the bar table that he has been abstinent from alcohol during that period of time, and he presents in court as someone who appears to be so. He acknowledged that he does not have a good mastery of his impulses and he becomes violent in the context of alcohol intoxication.
He has been the subject of various forms of conditional liberty, including community service orders, parole orders, and section 12 bonds. Although he has completed several orders, there have been breaches initiated for failure to complete programs.
There is a medium risk of re-offending, supervision will be needed for him, and at his age his decision has to be to recognise that he might be at the crossroads of his life and, if he does not take the opportunity this sentence might provide for him, he might well accept that he will be spending the latter part of his life now that he is well past middle age in custody from time to time because of the misconduct upon which he has shown a propensity to engage.
It was put to me that he has been in custody for nine months and he should be released into the community very soon to allow him to pursue rehabilitation. That cannot be accommodated. He has to stay in custody for a little longer. The objective gravity of this misconduct is such that there must be an appropriate measure of punishment.
I will find that there are special circumstances allowing an adjustment in the custodial component below the ratio set in s 44 Crimes (Sentencing Procedure) Act. I have noted the submissions by the Crown urging the Court to embrace a measure of circumspection in this decision, but it does seem to me that I should find special circumstances in light of the material that I have.
There is a psychological assessment from Anita Duffy, psychologist, written on 11 June 2019. I am familiar with Ms Duffy's services and, as on previous occasions, I found her report to be objective and balanced, with an explanation for why I am in court today about to sentence this man for this misconduct. This report provides greater detail of his past life, including the relationships that he has formed and the birth of his two daughters, with whom, I am told he has reconnected, and with whom he is now enjoying an ongoing relationship. There is reference to the loss of his partner in 2009 and the development of his new relationship in 2012, which continues. There is reference to his education and employment and the industrial accident, after which he lost his work following eight months on compensation. There is reference to the close relationship he had with the victim in this case and, importantly, there is the history of the drinking upon which he embarked as a teenager, which developed in circumstances where his parents and his stepfather, after his mother and father separated, in his formative years normalised such conduct. His stepfather was prone to violence, all of which has contributed to the psychology of this man.
The circumstances of the offence are discussed. He is attributed with remorse and his ongoing contact with the victim since the event.
He was assessed psychometrically. He has such alcohol consumption that he is placed at the high risk level, requiring intensive counselling, including group programs, pharmacotherapy and other strategies to manage cravings and provide relapse prevention. Intervention with anger management programs is also recommended. He was also assessed for depression, anxiety and stress. He meets the criteria for alcohol use disorder; the "Conclusions" section in the report deals with that, together with the pattern of maladaptive substance use that is manifested in such cases and demonstrated here. There is again reference to both parents as heavy alcohol consumers and his exposure to domestic violence by his mother's partner following the separation from his father.
[6]
Findings
I accept the assessments made by the psychologist. There is ample scope to find special circumstances upon that material, together with the documents that demonstrate he has undertaken courses in custody to address his problems.
There is a document from the victim in this case speaking of the friendship that he has had with the offender. He speaks of this conduct as being totally out of character for the offender. That does not sit comfortably with the record of antecedents that I have before me, but perhaps within the context of their relationship it might have been out of character. This refers to things getting out of hand and he has accepted that the offender is very sorry for what he did and is in need of help rather than punishment.
The offender has provided a letter expressing remorse and contrition and the impact of his custody since he was taken in and how he thinks about what he has done every day.
There is a document provided by his partner, who is present in court. She has written eloquently and elegantly, I might say, of her perception of the offender and the changes that he has made since he has been taken into custody. She deals with the circumstances that they enjoy in their relationship, including the re-connection with his children.
The Crown's submissions refer to the degree of violence, which was extreme, I accept. There were multiple blows, the attack was by surprise. There could be no justification for it at all. The extent of the injuries places this grievous bodily harm at a high level, bearing in mind that the grievous bodily harm one might suffer in the commission of crime can extend from nothing more than permanent scarring up to what was suffered by this victim and worse.
His record disentitles him to leniency. It is an aggravating factor specified in s 21A (2) (d) Crimes (Sentencing Procedure) Act, but it does not increase the objective gravity of the offence or the punishment to which the offender is exposed. It does inform though the need to focus upon specific deterrence and to impose a sentence and a structure of sentence that will do what it can to make clear to the offender that he must not submit to the temptation of alcohol, with the consequence that it seems to have for him, involving an inability to control his anger aroused by the least offensive of remarks.
It is conceded that he is entitled to a discount of 25% for the utility of the plea of guilty. The discount is applied to the sentence after the synthesis of objective and subjective material, including the prospects of rehabilitation, such as they might be, and his expressions of contrition and remorse, which I accept. The discount of 25% applied to the starting point that I had resulted in a sentence expressed in years and months. I have rounded the sentence down to years, with the non-parole period expressed in a year and months.
The line in s 5 Crimes (Sentencing Procedure) Act was clearly crossed and all of the purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act are engaged. General deterrence has a role to play. The courts must make clear that they will not tolerate violence at whatever level or in whatever circumstances, and if people decide to engage upon misconduct such as this there will be consequences that must be faced. The conduct must be denounced, there must be punishment, there must be recognition of the harm that was done, there must be appropriate consideration given to the prospects of rehabilitation.
I accept that the offender is sincere in his wish to rehabilitate. History, however, challenges any finding that his prospects are good. It will be a matter for him to demonstrate in the next few years of his life that he can implement what I accept to be his sincere goal: to rehabilitate from the pattern of offending that he has so far demonstrated in his life. As I indicated, he is past middle age now and, unless he does something to redirect his path, his future, in my assessment, is bleak.
[7]
The Sentence
Mr Thomas, you are convicted of this offence. I am specifying a non-parole period of 1 year and 6 months, commencing on 27 September 2018, to expire on 26 March 2020. I impose a further period of imprisonment of 1 year and 6 months to commence at the expiration of the non-parole period. That shall expire on 26 September 2021.
Being a sentence of three years, you will be entitled to have your parole implemented at the expiration of the non-parole period. It will be supervised in accordance with the regulations and the legislation under which they are made, with the parole authorities identifying your particular criminogenic needs at that point. Of course it remains for you to continue to behave in custody to get your parole when you are due for it and, when you are on parole, to maintain an appropriate pattern of behaviour so you do not put yourself at risk of going back into custody.
I listened to what Mr Coyne had to say about imminent release, but the circumstances of this offence are such that I do not believe I could impose any lesser period of imprisonment and custody for this matter.
[8]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 22 July 2019