REGINA v. ANDREW [2002] NSWSC 489

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: The offender has pleaded guilty in this Court to one count of assault occasioning actual bodily harm. That offence is punishable by a maximum sentence of imprisonment of five years. The essential facts are not in contest. 2 The offence was committed on 19 May 1990 when the offender was then aged 16 and was a boarding school student. Shortly prior to that date the deceased, a teacher had, as far as I can ascertain from the agreed facts and the material provided on the plea, using alcoholic liquor, seduced the offender into homosexual acts and infected the offender with a venereal disease. 3 Disturbed about that infection and the deceased's acts with him the offender had complained to his best friend. The two of them went to the deceased's premises. The offender had prior to doing so discussed with his friend that he might hit the deceased with a small baseball bat that they took with them to the premises. 4 However, on arrival at the premises he did not do that. He sought to speak to the deceased who was a teacher and an older man, concerning his feelings about what had occurred. He was under considerable distress. The deceased did not wish to talk to him but instead suggested they watch a video. The offender understandably, having regard to what had occurred on the previous occasion, conceived the idea that the video was likely to be a pornographic video and that he might be the subject of a further homosexual approach. 5 In a mixed emotional state involving on his part some degree of fear, some degree of anger, some degree of frustration, he struck the deceased to the head with the baseball bat splitting his scalp and causing some bruising. He also struck the deceased a couple of times to the back. The evidence does not permit me to conclude that the blows to the back occasioned the deceased any injury. 6 Thereafter the offender's friend did the acts which killed the deceased. 7 In consequence in due course they were both charged with murder. After a trial the offender was acquitted of murder but convicted of manslaughter, the jury making a recommendation for leniency. 8 He was sentenced to six years imprisonment with a minimum term of four years. His companion was convicted of murder and sentenced to imprisonment for 13 years. 9 The offender successfully appealed that conviction and following the appeal being upheld was acquitted at a further trial of the charge of manslaughter. 10 Both at his murder trial and his manslaughter trial he gave evidence of the facts of the offence. I have been provided with a summary of that evidence by the Crown which is exhibit A and short extracts from the offender's evidence. It is on that evidence that the Crown relies to make out the offence. 11 The involvement of the offender and his companion in the events did not come to light until some seven years after the occasion of the killing. It occurred in consequence of the co-offender having split from his wife and she informed the police. 12 The offender when first interviewed did not admit his role but has admitted his role, as I have set it out, in his evidence in the two sets of proceedings and by his plea before me. 13 Some moths after acquittal on the manslaughter charge, notice was given by the Director of Public Prosecutions of an intent to lay an ex officio indictment charging the offender with malicious wounding with intent to cause grievous bodily harm and malicious wounding, the latter charge in the alternative to the former. 14 On arraignment, the offender pleaded not guilty to those two charges. Thereafter, the matter came before me to determine pre-trial issues including the availability of a plea raising a res judicata or a plea in bar or whether the proceedings should be stayed. This last was said to arise in consequence of evidence put before me concerning the effects of the proceedings upon the offender where he had not been charged with the charges contained in the ex officio indictment in the earlier proceedings so as to permit one or other of the two juries to have considered those charges as possible alternatives to murder or manslaughter. 15 I was provided with an affidavit of 22 May 2002 by Christopher John Hammond, solicitor, which sets out the chronology to which I make summary reference by consent of both parties for the purposes of this sentence. 16 The offender following his arrest spent some days in custody and then was released on bail until 28 April 1999. He thereafter was detained in custody until 19 April 2000 when he was released to conditional bail with a condition involving some reporting until his acquittal on the manslaughter charge. He was, of course, unconditionally at liberty following that acquittal until the ex officio indictment was presented. 17 Following the presentation of the ex officio indictment he was placed on unconditional bail. That bail, however, as do all bails, required him to be of good behaviour. 18 Prior to being taken into custody on 28 April 1999 and after his apprehension on 16 May 1997 he was on conditional bail which not only required that condition but also required him to report daily. 19 During the argument concerning the application to stay or otherwise to determine the appropriateness of the indictment for malicious wounding questions arose concerning the ambit of the facts to which regard might be had in the light of the prior acquittals and which might support the allegation of malice contained in both charges in that indictment. 20 In consequence of that debate, the Director of Public Prosecutions determined to proceed no further with the indictment in that form and a nolle prosequi was entered. 21 A new indictment was preferred containing the present charge and it is to that charge in that indictment the offender has pleaded guilty. 22 There has been tendered on his behalf, without objection or challenge by the Crown, the report of Dr. Skinner dated 21 May 2002 and the two reports of Dr. Susan Hayes dated 28 March 2002 and 29 April 2002. 23 There have also been tendered, similarly without objection or challenge, three statements from persons who had known the offender for most of their and his lives. Those statements testify to the anguish the events have caused to him and the support of his family to him. They testify to his being an asset to society. Not only do they refer to the pain and suffering the unfortunate events caused to him but to his present commitment to embark upon an occupation designed to relieve the pain and suffering of others. 24 I have also been provided with his affidavit sworn 17 April 2002. The Crown has not sought to cross examine him on that affidavit, its contents are unchallenged. 25 In particular in paragraph four it refers to matters which had been the subject of statements made by him to the psychiatrists and on which they have relied as history, that is, that he had suffered immensely from depression and had attempted suicide but had been talked out of it by a police officer and then removed to a psychiatric hospital. 26 It refers to him as being appalled by and feeling guilty because of the conviction and sentence of his friend. It refers to the experience he underwent when in gaol while he watched the violence and barbaric behaviour of certain of the inmates, in particular when he was placed, notwithstanding his age, in a secure gaol and for some time with a person whom he believed was likely sexually to assault him and where he was placed in the same gaol as a person he witnessed being killed by other inmates using sardine can lids. 27 He refers to his inability to live an independent life and to study. He refers to the difficulties he has had obtaining employment when the circumstances of his outstanding charges have come to the knowledge of employers. 28 All of what he says accords with the observations of him made by the psychiatrists. Because of his involvement in this matter and because of the two trial, he has been the subject of wide publicity which has contributed to his depression. He has attempted suicide on other occasions to that to which I have already referred. 29 The psychiatric reports refer to the consequences to him of the venereal disease with which he had been infected by the deceased. The medical consequences of that matter have been grave to him primarily because in the context of what had happened to the deceased and in the context of his own embarrassment he was unable to disclose that the disease affected him for some years during which time its consequences for his health were most severe eventuality requiring surgical intervention. He has from time to time of necessity had to resort to anti depressant medication. 30 It is apparent that an important aspect of his life physically and emotionally has gone as a consequence of what had happened to him and the conduct in which he participated. 31 Both psychiatrists shared the view that for him to go to trial again was to invite not only a suicide attempt but the real prospect of a completed suicide. 32 He has, it is clear, suffered severe emotional and psychological scarring but that is not all that I must take into account. If that were all I took into account I would be falling into error. I must have regard also to the objective culpability of what he did in assaulting the victim and I do so. 33 The fact that he took the baseball bat with him clearly evidences some degree of planning if on a contingency for the infliction of violence to the victim. It was a planned assault in that sense. Having regard to the acquittals and the principle in The Queen v. De Simoni (1981) 147 CLR 383) I do not regard it as appropriate for me to take into account that he and his friend additionally took to the premises duct tape. 34 Similarly, I do not regard it as appropriate to take into account against him the other consequences of their attendance at the premises. He has been acquitted of an involvement in the killing and necessarily I must not aggravate his sentence by finding facts reflecting any complicity in it. It would be contrary to legal principle to regard his culpability as in any way aggravated by what occurred in the premises other than that encompassed in this charge and to which I have referred, since so to do would be to have regard to matters associating him with the co-offender's crime. 35 Taking those matters into account I also must have regard to the fact that at the time had he been dealt with in a children's court for this offence the regime then applicable in that court might have allowed him to be dealt with according to law but it is unlikely. 36 Indeed, it is probable having regard to the regime as it then was, to which I must have regard in the light of the decision of the Court of Criminal Appeal in MJR v. The Queen [2002] NSWCCA 129 that there would have been a finding that the facts made out the offence but there would not have been a consequential conviction having regard to his lack of prior record. 37 It is highly likely that in the circumstances a court then dealing with this charge would have imposed no other sanction other than possibly a reprimand. 38 Such as I understand it is recognised by the Crown Prosecutor who, having regard to the custody in which the offender has been placed over the years and the terms and conditions of bail, has submitted that no further custodial sanction need be imposed. When senior counsel for the offender informed the Court that he sought that s.10 of the Crimes (Sentencing Procedure) Act 1999 be applied the Crown Prosecutor informed me that on the Crown's behalf no submissions were made in opposition to that course being taken and that I would not be falling into appellable error were I minded to exercise in these circumstances the discretion conferred upon me by that section. 39 In addition, the Crown has conceded, having regard to the fact that the offender has not again come under notice notwithstanding the stringency of his conditional liberty during this long period, that it would be inappropriate to impose any further restrictions by way of bond on the offender for the future. 40 It is necessary then that I give consideration to whether without proceeding to conviction I should make an order under s.10(1)(a) directing that the relevant charge be dismissed. I am, in that regard, referred by s.10(3), to the person's character, antecedents, age, health and mental condition, the trivial nature of the offence, the extenuating circumstances in which the offence was committed and any other matter that the court thinks proper to consider. 41 I do not consider that this offence was of a trivial nature. I do consider that there were highly extenuating circumstances, and I particularly have regard to the offender's age, health, mental condition, his lack of any prior adverse record whether at school or otherwise, and the good character he has enjoyed prior to and since the offence. 42 It is not only in the circumstance that the offence is a trivial one that s.10 might operate. The width of the discretion to make an order under s.10 is wide. 43 I have concluded, having regard to the effects on the offender, having regard to the contrition, remorse and guilt that he has expressed, particularly to the psychiatrists and evidenced so clearly over the years, having regard to the extenuating circumstances to which I have referred and those other matters to which s.10 speaks, that this is a proper case in all the circumstances for the making of an order under s.10. 44 Benjamin Bruce Andrew, without proceeding to conviction, you having been found guilty on your plea, I make an order directing that the charge of assault occasioning actual bodily harm referred to in the indictment be dismissed under s.10 of the Crimes (Sentencing Procedure) Act, 1999. **********

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