R v Toko

Early events at the birthday party

1. On 13 March 2021, another person, Justin Hall was hosting an 18th birthday party at Blue Haven. There were 50 attendees, including the offender, the victim and Ms Foster. The victim and Ms Foster arrived at the party together, between 7:30 and 8:00pm. During the party, the victim consumed a large quantity of drinks (12 beers and two pre-mixed vodkas); Ms Foster consumed 3-4 premixed whiskeys.
2. During the party, Ms Foster became embroiled in a brief physical altercation with the offender's former girlfriend; during which Ms Foster sustained a graze and scratch to her leg. Soon after, Ms Foster came across the offender, then in the company of three others, and they hugged, before slipping out to the front yard. They wanted to talk and avoid the loud music coming from the backyard. Ms Foster told him about her fight and showed the offender her injured leg.
3. The offender and Ms Foster returned to the backyard. It was then that the offender met, and introduced himself, to the victim. He did so in a strange fashion. The tone appeared sarcastic, if not at least unfriendly. He said to the victim "Nice to meet you Cooper Elkington. That name is gonna stick Cooper Elkington. Good to know." The victim interpreted this exchange as the offender being overly 'fake' and petty towards him.
4. The offender and victim walked away. As they were doing so, the offender grabbed Ms Foster by the hips, pulling her towards him, but she moved away. The offender pulled her towards him four or five other times that evening and after this, Ms Foster tried to avoid him.
5. At one point during the party, Ms Foster approached where the victim was standing. The offender followed her and when they were both in front of the victim, the offender again grabbed her. This led to the following exchange between the offender and the victim: "Offender: Kirsten (Foster) is my best friend, you're supposed to be looking out for her Victim: Nah mate, she's my best friend and I do look out for her."
6. The offender then took hold of the victim, by the back of the latter's head and whispered in the victim's ear "Don't ever make Kirsten mad or upset, you should be protecting her."
7. Ms Foster then intervened. She pushed the offender away and in the process, telling him that the victim had not done anything, but asked the offender to leave the victim alone. The offender responded, initially, by telling her to leave and then taking hold of her with both of his arms. Both the victim and the offender wanted her to go.
8. The offender picked up Ms Foster again, this time carrying her from the rear corner of the yard. The victim tapped the offender on the back, telling him "Mate just put her down". Ms Foster also asked the offender to put her down.
9. After the offender put her down, he approached the victim, who had been told (with apparent coercion) by two of the offender's friends to stand in a corner near the tree. The offender gestured with both of his hands with his face close to the victim's face.
10. Again Ms Foster intervened. She ran back to both victim and offender. After telling her to leave, the offender again picked her up and carried her in the direction of the offender's other friends. All the while, she demanded that the offender put her down, whilst striking the offender on his chest whilst doing so.
11. Two of the offender's friends then removed her from the offender. Ms Foster then became angry against them. The friends then physically restrained her.

The assault

1. Back near the tree, the offender spoke to the victim about Ms Foster. After he told the offender that he did not "want any beef" with him, the offender threatened him, saying "If you hurt her feelings, I will bash you" and the victim said he would never do that.
2. The offender then swung his right arm towards the victim, striking him in the left side of his face. The victim fell backwards and appeared unconscious. A short time later, the victim vomited. Later, one of the attendees inserted a finger into the victim's mouth, whilst he was unconscious, to clear it of vomit.

Aftermath to assault

1. After this assault, the offender stepped inside the house with other males. He explained to Coral Hall, when he was asked why he hit the victim, that "he (the victim) hit a girl … on the head". The offender later repeated that explanation to Mitchell Hall. Mitchell and Coral Hall were the host parents of the party. In the circumstances that occurred, at about 11:30pm, the offender was observed to have passed out on the front lawn of the Halls' next door neighbour.
2. The victim's parents arrived. The victim regained consciousness but, remained dazed, and continued to vomit, as he was driven by his parents to Wyong Hospital. He was admitted to the hospital and stayed overnight, being released at 7:30am the next morning (14 March 2021). However, when he returned home, the victim started vomiting again, so he was driven again to the hospital where he underwent a CT scan. A base skull fracture was identified. The victim was transferred to Gosford Hospital where he remained for a week (21 March 2021).

Grievous bodily harm

1. Investigations carried out at the hospital revealed that the victim suffered from: a fracture to the left side of his occipital bone with associated pneumocephalus, a fracture through the left petrous temporal bone, a small focal non-occulusive clot in the left jugular forearm, left sided hearing loss, requiring a cochlear implant and swelling to the left lip.
2. The victim received medical advice not to return to contact sports for three months, and not to drive nor return to work for at least two weeks.
3. The victim now has no memory of what happened to the victim from shortly before the assault. I note that the victim was not called to give further evidence as to disabilities he is currently subject to.

The offender's ERISP

1. The appellant was arrested on 15 April 2021. He agreed to participate in an ERISP. A large number of statements, some admissions, and some denials, were referred to in the Agreed Facts (being aggregated in Agreed Fact 58). Amongst other things, he admitted that he was drunk (having consumed an entire bottle of vodka) and that he was on 'ice' at the party. He admitted having an unpleasant exchange with the victim during the party (asking the victim "what are you looking at cunt?") and his hostile attitude towards the victim (Agreed Fact 58(m)). He admitted punching someone during a later brawl in the street, but did not identify the victim in particular. He stated things that Ms Foster had told him which, on the offender's version, suggest that Ms Foster was seeking his protection (see Agreed Fact 58(k) and (l)) and was dissatisfied with her relations with the victim (Agreed Fact 58(g)).

Culpability

1. Later in these remarks, I refer to the report of the offender's forensic psychologist, Ms Leah Vircoe, which sets out, at length, the offender's background. To anticipate somewhat, I note that the offender reported to her that on the night of the offending, he was intoxicated by both ice and alcohol. He had been on a 'break' from a long-term girlfriend and considered that he was in the process of initiating a new relationship with Ms Foster. He asserted that Ms Foster had complained that the victim had 'emotionally' abused her and that, out of a sense of loyalty and protection, he responded accordingly. Further, he believed that the victim should have told him that he was in a sexual relationship with Ms Foster. He considered that the victim disrespected Ms Foster. Although he was talking through his 'issues' with the victim, he felt increasingly annoyed by Ms Foster's attempt to interrupt their conversation.
2. None of this explanation materially reduces the offender's culpability, least of all his self-induced intoxication (by drugs and alcohol). Ms Foster was perfectly capable of deciding who she may want to be romantically involved in. Indeed, according to the Agreed Facts (Agreed Fact 6), it appears that the offender was delusional about the extent of his association, which to that point, according to the agreed fact, was grounded in his being a social media friend of Ms Foster. The fact is, as the Crown submitted, that in the throes of romantic fantasy, and in a state of intoxication, the offender made an unprovoked attack on the victim.
3. Nevertheless, as the Crown fairly conceded, when reference is made to the offender's traumatic childhood, set out in further detail later in these remarks when considering his general background, that background mitigates the offending to some degree. In particular, the development of a code of values, including protectiveness towards friends and a hypervigilance or sensitivity to real or perceived threats can be seen to have played a role in the offending, and this was apparent well before the offending and can be viewed as being connected with that childhood. This might appear foolish to an objective observer: in society, we have little tolerance to persons who act like a latter day knight-errant who feel they have to right real or perceived wrongs to others [1] . It would be too simplistic, however, to write off the offending as the result of self-induced intoxication without taking into account this 'code'. As Ms Vircoe opined, his intoxication (itself stemming from a substance use disorder that arose, in part from his background) reduced his 'frustration tolerance' and perception that his values of protection and respect had been compromised. Put another way, it was a necessary condition of the offending that the offender had an impaired frustration tolerance and 'code' for the offending to have occurred. His intoxication brought these things out. I find that there is a connection between his dysfunctional background and his offending.
4. Applying the principles from cases such as R v Fernando (1992) 76 A Crim R 58 and Bugmy v R (2013) 302 ALR 192, I find that the offender's culpability is lessened on account of his deprived or dysfunctional background, which had a connection with the offending; and thereby lessened the gravity of the offending and the force to which general and specific deterrence have as considerations in the sentencing exercise.

Assessing the gravity of the offending

1. It has been said that the gravity of the subject offence is affected by the seriousness of the injuries (McCullough v R (2009) 194 A Crim R 439 at [37]), but also the nature of the attack and surrounding circumstances are highly relevant: McCullough v R at [37]. In Stevens v R [2017] NSWCCA 216, the Court of Criminal Appeal affirmed these principles, emphasising that the result of the offending is scarcely the only consideration to take into account. Bellew J (Hoeben CJ at CL and Davies J agreeing) also adverted (at [41]-[42]) to other considerations including the degree of violence and the ferocity of the attack; whether the attack was unprovoked and whether it may have been perpetrated against someone innocently going about their business.
2. I am mindful of the circumstance that I am sentencing the offender for an offence whose mental element is recklessness, rather than the (more serious) offence of specific intent under s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). But that does not mean that the Court should ignore the circumstance, if it arises, that the offender intended to cause actual bodily harm in the victim: (R v Channells (unreported, 20/9/97, NSWCCA).
3. The offender's legal representative submitted (in written submissions) that relevant considerations were the fact that there was a single punch, the attack itself was brief and that the harm which resulted was more severe than what could have been expected. Nevertheless, the offender acknowledged that the 'injury' is long lasting. Overall, he accepted that the offence was in the middle range of offending for an offence of this kind.
4. The Crown accepted that the assault was of a short duration; although that did not greatly assist the offender. The Crown emphasised that the single punch was directed at the victim's head; so the violence was significant. The Crown emphasised that the attack was unprovoked and, moreover was sudden: there was no obvious sign that it might occur. This meant that the victim was unguarded. The Crown submitted that the injury to the victim was extremely severe; well above the mid-range of injuries constituting the expression 'grievous bodily harm'.
5. I find that the gravity of the offending was such that it fell within the mid-range of offending, although I am inclined to think that it was at the lower end of that mid-range. I am mindful, in particular, of the very serious injuries in the victim, as admitted. That said, there was no evidence of current disabilities in the victim nearly a year on from the assault. I also accept the brief nature of the attack. The circumstance that it was not premediated does not materially assist the offender: single punch assaults by an intoxicated person rarely are. Further, the assault did not involve the use, or threatened use, of any weapon. The offender was drunk which, to any sober person, might have instilled greater fear. But the victim also had had a lot to drink (Agreed Fact 13) so this factor was not quite so readily applicable. I am not convinced the victim's position was fully analogous to the innocent bystander walking down a street at night and attacked from behind. There had been earlier unfriendly exchanges that the victim had with the offender. In hindsight, he might have been best to have left the premises. So to state is not to blame the victim: he had every right to remain at the party and to do so without any kind of molestation. The observations are made simply to distinguish him from the type of victim who walks down a street minding their own business. Further, given the latent, or perhaps even patent, hostility exhibited by the offender to the victim during the evening, an attack may not have been entirely surprising (although I accept that this is easier to say with the benefit of hindsight).
6. There was, a significant degree of recklessness regarding the risk of harm associated with the impact of the punch, directed, as it was, to the victim's head. But although I accept that the victim did not have real opportunity to defend himself given the unprovoked nature of the assault, it was not the worse kind of single punch where the assailant punches from behind the victim.

Aggravating circumstances

1. The offender accepts that he was on bail for other offences (violent in nature) at the time of this offence, which aggravates the seriousness of the offending (per s 21A(2)(j) of the Crimes Sentencing Procedure Act 1999 (NSW)). What makes the circumstance particularly appalling was that offender had only received bail on 4 March 2021, less than 2 weeks before the subject offending.
2. I note that no victim impact statement from Mr Elkington was relied upon. Even if it had, given the element of grievous bodily harm was integral to the offence, care would need to have been exercised lest the existence of harm in the victim be double counted in the sentencing exercise. Plainly, though, as indicated at the end of these remarks, his interests are relevant to the sentencing exercise.

THE OFFENDER'S SUBJECTIVE CASE

1. The offender was 18 years of age at the date of the offending.
2. His background was commented upon in the report of a forensic psychologist, Leah Vircoe, dated 6 February 2022, following an assessment of him carried out (by AVL) on 10 January 2022. Ms Vircoe has had 13 years' experience as a psychologist and has worked with offenders who are young and who have committed violent offences; both categories being applicable to the present offender. She noted, and the Court is conscious, of the limitation that she was reliant for the "majority" of her assessment on what the offender told her. Nevertheless, the Offender swore on his oath that what he told her was true.
3. The offender reported to her a 'pretty rough' childhood: he was the only child born to his parents; but had never met his biological father. His mother was a drug addict. He had two older half-siblings. He claims to have been exposed to a range of traumatic events and Ms Vircoe noted that documents obtained from the Department of Communities and Justice indicated that during his early development, concerns had been raised about parental neglect and absence of supervision, and parental drug and alcohol abuse. He gave evidence of himself and other family members being sexually assaulted. His mother persuaded upon him to administer drugs to her. Indeed, he was removed twice from his mother's care, the second time occurring in 2006. There followed periods where he was removed to the care of other family members (his Aunt and Uncle) until he was 15 after which he was 'transient', living between friends' homes. He has had no contact with his mother since 2014. The offender also reported to her that his siblings had also had difficulties with the criminal justice system.
4. Although not free from difficulty, it appears that the offender feels most connected with his Aunty and Uncle; so much so that he has been reluctant to inform them of his recent offending. This followed the pattern from when he was younger when he was reluctant to divulge to them some of the traumatic events that he was exposed to.
5. Not surprisingly, for a child with this background, his schooling history was disjointed. He attended no less than 4 primary schools. The offender considered that he had difficulties concentrating; although he had no particular social difficulties. His learning problems became more pronounced when he reached high school. In Year 7, he reported to Ms Vircoe that he was expelled. He attended another school but that was not a success: he became argumentative with teachers, attained low grades and frequently engaged in truancy. He was suspended on an occasion for smoking cannabis.
6. Despite problems with schooling, the offender was reported to be outgoing and social. Curiously, the offender was not of the type who would divulge past difficulties with his peers. To that extent, and in other respects, his friendships were superficial. That said, it appears that he exhibited, and received, loyalty to and from his friends. At the time of his arrest, he retained connections with his peer group from school. There was nothing markedly antisocial about them. However, more disturbingly, he had another group of associates who had encountered difficulties with the criminal justice system; although, he said in Court today that he is no longer friends with these people anymore. He said it was the 'bad' friends who were with him on the night of the offending.
7. He left school in the first term of 2018, when he intended to commence an apprenticeship as a plumber. That fell through and he instead commenced an apprenticeship as a landscaper. That did not work well either and after 3 months, he commenced employment as a furniture removalist. Upon his release, according to what he said to the psychologist, the offender has his sights set on becoming a real estate agent. I note in Court today, when asked about employment prospects, he spoke of involvement in furniture removal.
8. He started taking cannabis when aged 12 and developed an addiction to the point that he was taking it on a daily basis; although he claimed to have ceased taking it up to a point 3 months prior to the offending. He informed Ms Vircoe that he experimented with other drugs for recreational purposes. He was using buprenorphine within the custodial setting, until 2 weeks before the offending. As indicated in the agreed facts, he agreed that he was intoxicated by ice on the night of the offending.
9. Ms Vircoe diagnosed him as having PTSD, a Generalised Anxiety Disorder and a Substance Use Disorder. The offender informed her that he had never previously received a diagnosis of any mental health condition or prescribed psychotropic medication. He saw a psychologist for a short period when he was 12, but that was not very effective.

Prior criminal history

1. The offender has little prior criminal history (save for a prior set of charges for which he awaits sentence). But the Crown submits that these other charges are such as to disentitle him from the leniency that would otherwise be accorded to a person of good character, in relation to offending that occurred on 18 February 2021, which was in the nature of a street fight.
2. It is very troubling to the Court that within the space of a month, the offender should have committed multiple serious offences.
3. The offender is, of course, young. I find that a lack of development, or maturity in the offender is a factor in mitigation, and moderates, to a degree, the force of general and specific deterrence. I agree with the submissions of the offender's legal representative in this respect. Although he eschewed submission that he is of good character, his legal representation said all of the offending occurred within a short time when he mixed with bad company which, according to the offender, he is no longer associated with. committed all of these crimes whilst associated in bad company, which, according to the offender, the offender is no longer associated with.

Remorse/contrition

1. Ms Vircoe reported that the offender had expressed remorse to her. Specifically, he told her that his actions were not consistent with the way he liked to be perceived by others. He had not informed other family members; because of his fear of their reaction. I agree with his legal representative's submission that this reflects a sense of shame.
2. He gave evidence that he looked down upon himself and said he felt sorry for the victim. Further, there is plausibility in what he said to Ms Vircoe, set against the description of his background. I accept that there is some remorse, although it is somewhat limited.

Plea of guilty

1. The offender pleaded guilty in the Local Court. The Crown accepted that he is entitled to a 25% discount on account of that plea.

Rehabilitation prospects

1. Ms Vircoe noted the offender's willingness to engage in therapy after his release from custody, to help him come to grips with the trauma endured through his developmental years. She recorded that he had demonstrated insight into factors associated with his offending and a desire to desist from further offending and to cease substance abuse. Ms Vircoe set out, in substantial detail, recommendations for treatment.
2. A short note from the Chaplain of the Bathurst Correctional Centre positively reported on the offender's behaviour, manifested partly in his attendance at regular chapel service.
3. The offender's legal representative also relied upon his completion of a safe working course he completed in August 2020.
4. There is little objective evidence before the Court to indicate that beyond a statement of aspiration, the offender will be able to follow through with the implementation of treatment options. The offender has completed an addiction course whilst in custody. He said he would like to address his drug issues further upon his release. He states that he has no use for alcohol upon his release. It is troubling, though understandable, that the offender has not confessed his offending to the aunt and uncle who may be able to help him. He has spoken to some family members. He says he expects to engage in furniture removal work upon his release.
5. Given the other recent offending, for which he remains to be sentenced, I am unable to confidently predict that he has low prospects of re-offending.
6. I find that his rehabilitation prospects are somewhat guarded.

Hardship to the offender

1. The legal representative for the offender alluded to the offender's mental health conditions in conjunction with restrictions on offenders arising from management of the Pandemic in correctional centres. The offender said there were currently no contact visits.
2. I accept that for someone with his conditions, and his patent need for treatment, he may find custody more onerous than someone without the extent of his conditions; although given that many of offenders who come before this Court regularly do so with some underlying mental conditions, this particular factor has limited weight. It does, however, have salience when considering whether to vary the non-parole period.

INSTINCTIVE SYNTHESIS

1. I take into account both the maximum penalty and the identification of the standard non-parole period. As the decision in Muldrock v The Queen (2011) 244 CLR 120 at [24] informs the Court, even if the offending falls within the mid-range of offending, as it does here, where an offence carries a standard non-parole period, that does not mandate the length of sentence given that it relates only to the objective gravity of the offending.
2. I also take into account the various considerations in s 3A of the Crime (Sentencing Procedure) Act 1999 (NSW). In that context, the Crown emphasised the observations of Hoeben CJ at CL in Pattalis v R [2013] NSWCCA 171 concerning the incidence of one-punch assaults, fuelled by an excessive consumption of alcohol, and his Honour's emphasis upon denunciation, or retribution. Similarly, whatever be the personal circumstances of the offender, his offending conduct here, following so soon upon other offending conduct for which he presently awaits sentence, indicates an augmented need to protect the community.
3. The Crown also drew attention to the notorious decision in R v Loveridge [2014] NSWCCA at [103], the Court of Criminal Appeal also emphasised the significance of general deterrence in 'one punch' cases.
4. Whilst I acknowledge the force of those observations with respect, care must be exercised not to pigeon-hole offending for this offence into discrete sub-categories for sentencing purposes: that is, applying a reasoning process that posits because the characteristics of the offending comprised an unprovoked single punch assault, in circumstances of intoxication in the offender, a certain sentence, or range of sentence, should follow. That would be an affront to our system of individualised justice. Further, I observe that in Pattalis and Loveridge, the sentencing courts were dealing with entirely senseless episodes of assaults perpetrated upon victims with whom the offender had no connection whatsoever. Whilst the assault here was appalling, it is inaccurate to characterise the offending here as being perpetrated upon a complete stranger even if the victim was blameless. In the minds of the offender, at least, he and the victim were rivals for the affections of a woman.
5. General and specific deterrence are applicable, if moderated because of his background. Pulling in another direction, however, is the concern that a sentence needs to be imposed which makes the offender accountable and recognises the enduring harm perpetrated upon Mr Elkington, to whom the Court expresses its sympathy.
6. Finally, I need to factor in the significance of rehabilitation prospects. The offender is a young adult and for someone of his background, and a first time offender, it is in the community's interest that he not become institutionalised.
7. The legal representative for the offender concedes that the s 5 threshold is crossed, but submits that consideration be given to a term of imprisonment being served by an order for Intensive Correction. In so submitting, the legal representative acknowledged the difficulty that would arise if such submission was acceded to, due to his being on remand for other offences which may require a gaol term. I agree that the s 5 threshold is crossed.
8. Before consideration is given to the desirability of a sentence of imprisonment being served by ICO, it is first necessary to consider the length of the term. In that respect, it is wrong to commence with a preconceived notion that imprisonment by ICO is a desirable outcome before working back to fix the length of the term.
9. As to the term of imprisonment, the Crown drew the Court's attention to JIRS statistics, and specifically indicated that nearly 75% of offenders for this offence were sentenced to full-time imprisonment for terms ranging from 2 to 8 years. But in the next breath, as it were, the Crown acknowledged that the statistics were of limited utility given the wide range of objective seriousness of offending. It might also be noted from the JIRS statistics that 24.3% of offenders received a term of imprisonment served by ICO.
10. I have, independently, considered two others cases where intensive corrections orders were imposed by sentencing judges in this Court for the subject offending. These are R v Bird-Walton (A pseudonym)(no 2) [2021] NSWDC 23 (Grant DCJ) and R v Rosamond [2019] NSWDC 827 (Norrish SC DCJ). A common denominator of those cases was the very close prior personal connection, indeed bonds of love or affection, as between offender and victim and the fact that the circumstances (a foster mother's frustration in dealing with a child in Bird-Walton and an offender's sense of personal betrayal of trust by the victim in Rosamond) which led to the offending conduct, whilst not such as to deny criminal responsibility, at least mitigated the conduct to a substantial degree. Although, as I have found, there is a reduced level of culpability in the offender, it remains the case that the offending was very serious: involving enduring harm to a person to whom the offender had little connection and who afforded no provocation to the offender. The offending was aggravated further by the circumstance of it occurring when he was on bail, which evinced a disobedience or disregard to lawful restrictions. In my view, a starting period of imprisonment should be 3 years imprisonment, which, taking into account the discount for the plea of guilty, yields a term of imprisonment of 2 years and 3 months.
11. That effectively disqualifies the offender from serving the term by intensive correction (s 68(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)). For completeness, I would add that given the recent violent conduct, the aggravating circumstance I have alluded to and my concern about his rehabilitation prospects, even if the term fell under the 2 year threshold for such orders, I would not have been inclined to think that community protection would warrant his term of imprisonment being served in this way.
12. I find that special circumstances exist on account of the offender being a first time offender and his young age and significant need for rehabilitation in relation to his drug and alcohol issues; as well as his underlying issues relating to his background. The Crown concedes that special circumstances exist.
13. There was some dispute about the time he has spent in custody. The offender's representative said he had been in custody since 15 April 2020 and asked the Court to backdate the sentence to commence to that date. The Crown argued that, with reference to the subject offending, he had been in custody since 15 March 2021. I prefer the Crown's submission and will backdate the sentence to commence from 15 March 2021.

Orders

1. Mr Toko, please stand.
2. On the offence of reckless grievous bodily harm, you are convicted.
3. Taking into account the plea, you are sentenced to a term of imprisonment of 2 years and 3 months, commencing on 15 March 2021 and expiring on 14 June 2023. The non-parole period is 1 year 4 months and 7 days expiring on 21 July 2022, after which you may become eligible for parole.
4. I direct that the report of Ms Leah Vircoe dated 6 February 2022, insofar as it contains detailed recommendations for your treatment, be brought to the attention of those within Correctional Services responsible for your supervision.

Endnote

1. Famously depicted in M de Cervantes' Don Quixote 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: 01 March 2022