Director of Public Prosecutions (NSW) v Lyttle

[2015] NSWLC 4

Local Court

New South Wales

Medium Neutral Citation:	Director of Public Prosecutions (NSW) v Lyttle [2015] NSWLC 4
Hearing dates:	15 April 2015
Decision date:	24 April 2015
Jurisdiction:	Criminal
Before:	Curran LCM
Decision:	Sentence the defendant to 13 months imprisonment, suspended on entering a good behaviour bond for 13 months, pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999
Catchwords:	SENTENCING - reckless inflict grievous bodily harm - importance of general deterrence - character references and victim impact statement - little use of supervision - contrition and remorse - guilty plea - no prior
Legislation Cited:	Crimes (Sentencing and Procedure) Act 1999 (NSW), ss 3A, 5, 12, 21A, 22, 23 Crimes Act 1900 (NSW), ss 35(2), 418
Cases Cited:	R v Palu (2002) 134 A Crim R 174 R v Young (Court of Criminal Appeal (NSW), 27 October 1993, unrep) R v Zamagias [2002] NSWCCA 17 R v Doan (2000) 50 NSWLR 115
Texts Cited:	New South Wales Legislative Council, Parliamentary Debates (Hansard), 28 October 1999 at 2326
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) (Prosecution) B Lyttle (Defence)
Representation:	Director of Public Prosecutions (NSW) (Prosecution) C Watson (Defendant)
File Number(s):	2015/1794
Publication restriction:	Nil

​JUDGMENT

​BACKGROUND FACTS

1. Patrick Lyttle, the complainant in these proceedings, is the younger brother of the defendant, Barry Lyttle ("Barry").  Patrick arrived in Australia on a working holiday from Northern Ireland in June 2014.  His intention was to travel around Australia for about a year, obtaining jobs in various places.  Before he left Northern Ireland his brother, Barry, promised Patrick that he would come to Australia, visiting him in late December 2014 and remaining here for sufficient time to travel together to the Gold Coast.

2. Barry decided that when he travelled to Australia he would be accompanied by his father, Oliver Lyttle, together with a mutual friend, Tony Abusow ("Tony").  The appropriate flight arrangements were made and the party arrived from Ireland to Sydney on 29 December 2014.  At this time, Patrick had been working in Perth and was to return to Sydney to meet up with the group.  Patrick expected to meet his brother Barry but the inclusion of his father in the group was meant to be a surprise for Patrick.  Having initially arrived in Sydney, the group stayed at a hotel in the city area but a few days afterwards, on 2 January 2015, they moved to a hotel at Kings Cross. 

3. The family is a close one. It was respected by the community from which they came, Belfast, Northern Ireland. The boys’ mother, Irene, had died in April 2008 as a result of a serious illness.  The regard in which the family, and in particular Barry, was held, is attested to by the many character references that were tendered at the sentencing hearing. These included the local representatives at the Parliaments at Westminster and in Northern Ireland. In addition to these two testimonials, there were other references from members of the extended family, employers, as well as teachers who knew the family, and in particular Barry, during the latter part of his school career.  As far as any antecedents are concerned, a report from Interpol indicates that some years ago the defendant was, on two occasions, the subject of cautions but has no criminal convictions.

4. The events that bring this matter before the Court occurred on the evening of 2 January 2015. On that occasion the complainant, Barry, Tony and the boys’ father, had left their hotel to have dinner at a nearby restaurant.  Drinks were consumed at the restaurant and after dinner the father returned to the hotel accompanied by the three others.  Once the father had been settled at the hotel, the other three went out. They visited a number of establishments where they had drinks, ending at Hugos Bar and Lounge in Bayswater Road, Kings Cross.  This establishment is monitored by a number of security cameras.  The CCTV footage recording the three at this bar was played in Court.  I have taken the opportunity of looking at this footage a number of times, not only in Court, but also in my chambers with the use of a slow motion device. The footage shows that the group arrived at Hugos Bar at 1.07 am on 3 January 2015.  It takes up continuing observation of the group from about 2.50 am, both inside the premises, and then as the group leaves at about 2.53 am.  Initially Barry and his friend Tony leave, followed a short time later by Patrick.  The various cameras tracked their movements out of the premises and the footage from a camera mounted externally captures the three walking towards this camera at about 3.02 am.  It is this footage that captures the defendant, Barry, striking his younger brother Patrick.  The punch is to the head area, a result of which is that the complainant falls to the ground and sustains very serious injuries to the head. 

5. Details of the injuries sustained are set out in the expert’s certificate/report of Dr Benjamin Jonker, a Consultant Neurosurgeon at St Vincent’s Hospital. The complainant was admitted to the Hospital at about 3.20 am. The report sets out details of findings on admission. The details of these were as follows:

a)         Right acute subdural haematoma with uncal herniation and dilated right pupil;

b)         Comminuted fraction orbital bone;

c)         Fracture right petrous bone.

6. These injuries required the following treatment to be carried out at the hospital:

1. Right decompressive craniectomy and evacuation of acute subdural haematoma and insertion of intra cranial pressure monitor.

2. It was noted that initially during admission the complainant had a left arm hemiparesis and right third cranial nerve palsy which recovered during the admission.

3. The complainant required a further operative procedure namely an autologous cranioplasty, which took place on 30 January 2015.

7. The complainant remained an in-patient at the hospital until 3 February 2015 when he was discharged to the Royal Ryde Rehabilitation Unit.

8. At the rehabilitation hospital Patrick Lyttle was under the care of a Registrar in rehabilitation medicine, Dr Arun Maran, who specialises in patients who have sustained brain injury.  This doctor was working under the supervision of Dr Arnold Clayton-King, who is Medical Director of the Brain Injury Unit at the hospital.  This doctor’s report was before the Court.  That report says that Mr Lyttle suffered from post-traumatic amnesia for the duration of 16 days.  The following is extracted from that doctor’s report:

“Mr Lyttle made significant progress during his in-patient stay and was discharged home on 27 February 2015.  At the time of discharge, he was independent with his mobility and all domestic functional tasks.  The neuro-psychology assessment noted subtle difficulties on complex problem solving tasks, however, it was not anticipated that Mr Lyttle will experience difficulty returning to his previous level of function and roles.

He presented for review in my clinic on 31 March 2015 and no outstanding issues were identified apart from gradual weening off his Pregabalin medication for resolving neuropathic pain.  He is medically cleared to return back to driving and pre-injury work roles.

In summary Mr Lyttle sustained a severe traumatic brain injury with significant improvements post injury.  His outcome after injury is very good and very likely not to have a serious impact on his vocational and recreational needs. “

9. A neuro-psychological report was also before the court.  It is signed by Ashley Young, a Provisional Psychologist from the Brain Injury Unit at the Royal Rehabilitation Hospital and also Joe Hanna, a clinical Neuropsychologist from the same unit.  Relevantly, their joint report says as follows:

“Compared to premorbid estimates of at least average to high average intellectual function, he remained well oriented and he performed in line with expectations across tasks assessing his attention, psycho-motor speed, working memory, mental arithmetic, visuo-constructional abilities, verbal and visual learning and memory.  In addition, he performed within or above expectations on higher-order measures of executive functioning, including his verbal and visual reasoning, inhibitory control, multi-tasking and complex planning skills…………. Overall, he possesses sufficient insight and demonstrated a capacity to take on feedback, and at this stage it is unlikely that he will require further intervention from a cognitive perspective.”

10. As can be appreciated from the medical material I have just referred to, the complainant suffered a very significant injury to his brain, but has, remarkably, made an extremely good recovery.  This was over a period of some two to three months.

11. Returning to the events of this night, shortly after the striking occurred police arrived on the scene.  The defendant was arrested and taken to Kings Cross Police Station.  He was then interviewed and the interview was audio-visually recorded.  A DVD of that interview was tendered at the sentencing hearing.  The interview commenced at 5.41 am.  However, this was subsequent to the defendant undergoing a test to assess the blood alcohol content of his blood.  It was found to be .078 grams per 210 L of breath.  In other words, this finding disclosed that the defendant was moderately affected by alcohol but by no means excessively so.  It is consistent with the description of the social drinking that had taken place which is apparent from the contents of the record of interview.

12. I now turn to three areas of the evidence that were tendered in Court which I think need a little elaboration.

THE CCTV FOOTAGE

13. The CCTV footage from Hugos Bar is, in my view, quite important, particularly what it shows of the events where the punch was delivered to the complainant by the defendant.

14. As I have said, the footage comes from a number of cameras that are mounted both internally and externally at Hugos Bar.  The initial footage captures the arrival of the three at the lounge.  They appear to be in good spirits; smiling and chatting as they are waiting to gain entry to the premises.  They arrive at 1.07 am.  Their arrival is captured from two cameras mounted at different angles.  There is further footage capturing events at about 2.50 am and shows the group talking and drinking.  However the footage also shows that at one point Patrick is gesticulating and proceeds to push the defendant. Although this is not a significant push, it is sufficient for a member of staff to come over and separate the two.  After this Patrick moves away from the other two, that is the defendant and Tony who both move towards the entrance.  Patrick remains briefly in the bar finishing off his drink.  A further camera mounted outside shows the two leaving, followed some short time afterwards by the complainant.  A further external camera captures both the defendant and Tony standing near the top of four stairs talking, and shortly afterwards the complainant approaches from the rear.  The complainant goes down the four stairs, and gesticulates in the direction of the defendant.  The group then proceed to walk down a ramp leading towards Bayswater Road.  However, as this takes place, Patrick moves around to the front of the other two and starts gesticulating again towards Barry.  He appears to obstruct the two leaving the premises, and at one point, Tony appears to move between the two brothers after Barry has pushed Patrick.  Shortly after they proceed further down the ramp.  The camera footage shows that this is at about 2.55 am.  A different camera mounted in a different position, again captures the interchange on the ramp that clearly shows that there is an exchange between the brothers as Patrick stands in front of them.  The next footage comes from a camera mounted outside the premises looking down Bayswater Road in an easterly direction, and captures the group as they move up the footpath heading in a westerly direction.  The group are moving towards the camera.  Barry is nearest the gutter, their friend is standing in the middle and Patrick is nearest the building alignment.  There appears to be a continuing verbal exchange with both brothers looking at each other.  Patrick can be seen gesticulating a number of times in the direction of his brother and at this time the defendant raises his hand pointing in a direction up the street, that is, in a westerly direction.  It is not pointed in the direction of Patrick.  The footage then shows Patrick gesticulating in the direction of Barry, and he points in the direction of Barry’s head.  This exchange continues very briefly and they are at this stage face-to-face. Patrick moves slightly in the direction of Barry and can be seen to push out at the defendant in the head area with his right arm which is outstretched.  The defendant can be seen to stumble briefly in the direction of the gutter and simultaneously lifts up his right hand and hits out at the complainant in the head area.  It is obviously a fist.  Immediately, the complainant goes to the ground and onto his back with his hands outstretched on either side. The defendant immediately turns and bends over his brother and moves his own head very close to that of the complainant.  The defendant can be seen to cradle his brother’s head.  Two other members of the public come to attend, and the body movements of the defendant appear to be consistent with being in a state of distress.  About a minute or so afterwards two police officers arrive, followed by many others, together with other members of the public.  At about two minutes after the event has occurred, an ambulance is seen to arrive and at about 3.12 am the defendant can be seen being escorted to a police truck and then put in the rear. 

THE AUDIO-VISUAL RECORD OF POLICE INTERVIEW

15. Whilst the audio-visual record of the interview was not played in Court, a transcript of the interview was tendered, together with the DVD.  I have taken the opportunity to view the audio and video recording of that interview in chambers.  It is patently obvious from observing that interview that the defendant is extremely distraught by what has taken place about two and a half hours before.  As to the cause of the verbal exchange that occurred in the bar, the defendant says as follows:

“It, it just, it, there was, I can’t really recall, to be honest. It was just an argument in a bar and um it it carried on outside and it you know it just, we just both got head strong, and obviously what happened happened and, to be honest, if you want any more detail, I just I can’t at this stage.”

16. He goes on to say at a later stage:

“We just argued, we were told to go outside, and I, I just remember really, that he had, he, he, he pushed me or he shoved me or he hit me and I, I , and I just, I just started to hit him back”.

17. Again the following is said:

“…..I can recall that he shoved me or punched me, or done something, that I , it was just a reaction...what I was trying to do was walk away from the situation but I wish I could have been stronger and stronger and and walked away even more without lashing out.  Why would I do that……I just remember Patrick falling, and I, I just , it was, it was just so devastating.  I’m just, I’m just so concerned and so worried that all I can do was just, I love him, hold him in my arms and scream for him to be ok and squeeze his hand and hope he is alright.  And I’m praying that he’s ok.”

18. The interview continues and the following is said:

“He, he fell backwards, and hit his head on the ground. I, then I see blood coming out, I was really really concerned anyway I just rushed, I held him and hold him and I’m screaming for help, I’m screaming for an ambulance, and it just, you’ve no idea how this feels for me, you’ve no idea the situation I’m in because, you know, he’s my only brother and he’s the love of my life, and , you know this is just heartbreaking, totally fucking heartbreaking, and I’m praying and I’m praying that he’s ok and I just hope he’s ok, I just want to hug him……..”

19. In terms of the background relationship between the two of them and the occasional exchanges they have had in the past, he says the following:

“But it was always, it was always like, in the, it was, you know, after everything we, we sort of hugged each other and shook hands and just …you know, I know we both felt terrible after we, we used to fight, in, in the past and you know, you know I love my brother and, I came over, to see him…Used to… the same, and…where we fought….the same because I knew it would be important to him in the first year away from his family and ….this is just freaking devastating for me and devastating for my family, devastating for……. I know that this happened and I’m so ashamed of myself.  I’m so ashamed of myself.”

20. Further he states as follows:

“I love my brother very, very, much, more than anything in the world, and no matter how argumentative he can be or how frustrating he could be I love him very very much.”

21. He was questioned about his plans in Australia and trips they were going to take together while he was briefly here. He was also questioned in relation to the amount of drinking that had occurred that night.  The defendant went into some detail in setting this out.  At one stage the interviewer makes the following comment:

“Alright I, I understand.  I, I thank you for your honesty too because I know it’s a stressful situation.”

22. I have looked, as I said, at the recording of the interview and I have no doubt whatsoever that the events were extremely upsetting for the defendant and I have no doubt whatsoever that the remorse expressed during the course of that interview is sincere. He was obviously contrite.  Much of the interview was disrupted by crying.

THE VICTIM IMPACT STATEMENT

23. During the sentencing hearing, the complainant wished to make a victim impact statement.  This was obviously a very emotional experience as far as he was concerned.  He commenced the statement in the following way:

“This incident has had an adverse impact on all of my family. I am especially concerned how the health of my father is suffering. That health impact will only end when this ordeal is all over for my family.  In regards to my father, who has been our rock, there for me and my brother every step of the way, he does not want to go home without his two sons. If unable to do so it will have a detrimental effect on my dad. That in turn will have a massive effect on my recovery.  When my family is healed I will be healed.”

24. He goes on to say that in Ireland he had been in voluntary youth work and expresses his interest in utilising this past experience to be involved in programs to explain to young people “how any reckless behaviour can have a profound impact on people’s lives.”

25. In relation to this matter, certain documentation was tendered, in particular a letter from Mr Harry Maguire.  He is the Director of Community Restorative Justice in Northern Ireland.  His letter indicates the contact that has been made with his organisation by the two brothers, and their desire to be involved in that organisation and their programs and in particular, programs which centre around the theme of “one punch can kill”.  Further Professor John Braithwaite, of the Australian National University, who also specialises in restorative justice, gave brief evidence before the Court in relation to the sort of programs that the two brothers could be involved in back in Ireland. 

SENTENCING PRINCIPLES AND CONSIDERATIONS

26. I will now turn to the principles governing sentencing in the circumstances of this particular case.

27. The defendant has been charged pursuant to the provisions of s 35(2) of the Crimes Act 1900 (NSW). This section states as follows:

"35   Reckless grievous bodily harm or wounding

...

(2) Reckless grievous bodily harm

A person who:

(a)  causes grievous bodily harm to any person, and

(b)  is reckless as to causing actual bodily harm to that or any other person,

is guilty of an offence."

28. ​The section goes on to indicate that the maximum penalty is one of imprisonment for a period of 10 years.

29. The two essential elements of this offence are the fact of grievous bodily harm and, secondly, that it was recklessly inflicted.  There is absolutely no doubt that the nature of the injuries, details of which have already been set out, constitute grievous bodily harm and indeed, serious grievous bodily harm.  However, as I have also noted, the complainant in this matter has made an extremely good, if not remarkable, recovery from these serious injuries.  It would seem, on the medical material, the recovery is almost complete.

30. Further, there is no doubt whatsoever that the actions of the defendant were reckless in punching the complainant to the head area.  However, given the particular circumstances of this case, I will comment upon this further in due course. 

31. Looking at the statistics on the appropriate penalty to impose in relation to this matter, in the Local Court, 38% of all offenders are dealt with by a period of imprisonment, this period to be served.  When these statistics are refined further, they show that an individual, with no prior convictions, who pleads guilty, and is in the age range in which the defendant falls, 29% of that group are sentenced to full time custody. However, the sample for this refinement is very small.  The median penalty for this group is a Community Service Order.  The median penalty for all offenders is one of a gaol term which is suspended, subject to supervision.

32. Statistics such as these are of value, but only limited value.  The individual circumstances of every case have to be factored into how the court determines to deal with a matter.  The sentence has to be tailored to most adequately and justly deal with the individual case.

33. The Crimes (Sentencing and Procedure) Act 1999 (NSW) ("Sentencing Act") governs sentencing in this state.

34. The starting point for all sentencing is set out in s 3A of the Sentencing Act. That section is headed “Purposes of Sentencing”.  It states as follows:

"3A   Purposes of sentencing

The purposes for which a court may impose a sentence on a defendant are as follows:-

a)    To ensure the offender is adequately punished for the offence,

b)    To prevent crime by deterring the offender and other persons from committing similar offences,

c)    To protect the community from the offender,

d)    To promote the rehabilitation of the defendant,

e)    To make the offender accountable for his or her actions,

f)     To denounce the conduct of the offender,

g)    To recognise the harm done to the victim of the crime and the community.”

35. Section 5 of the Sentencing Act states as follows:

"5   Penalties of imprisonment

“5(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.”

36. The purposes of sentencing that the Court hopes to fulfil as set out in s 3A of the Sentencing Act have conflicting and contending objects when considered in the context of a particular case, and these matters frequently present difficulties in their resolution. 

37. There is no issue that the charge to which the defendant has pleaded guilty is a serious one.  This brings into consideration all of the purposes of sentencing, especially subss (a), (e), (f) and (g) as set out above.  On the evidence before me the following matters are relevant in this regard:

1. The medical material before the court sets out the nature of the grievous bodily harm.  However, fortuitously, the sequelae seem to be minimal. Given the remarkable recovery of the complainant, he does not have to cope with ongoing serious physical problems.

2. There is no doubt that to strike with force by way of a punch to the head area is an action which exposes the victim to the risk of serious injury.  This would either be from the punch itself, or any subsequent event such as a fall to the ground and the hitting of the head. 

3. The action was undeniably reckless. However, I have set out in some detail the circumstances of the event. It is one which is recorded visually and what occurred is obvious. The punch was immediately preceded by the striking out by the complainant at his brother with sufficient force to cause him to momentarily lose his balance. Further there is evidence of physical exchange between the two taking place over the prior ten minutes, which mainly involved the complainant gesticulating towards and pushing the defendant. In other words this is not a case of gratuitous, unexplained violence on the part of the defendant. I mentioned in Court when I first watched the CCTV footage that there appeared to me to be evidence upon which s 418 of the Crimes Act could be engaged, this provision allowing for the defence of self-defence.  It seems to me that this would have been a matter for some deliberation by the legal advisors of the defendant. The defence indicated it was indeed a consideration.  However, I also noted that the reaction of the defendant was apparently disproportionate, hence the plea.  The defence agreed with this proposition.  I say this so as to contextualise the events, not to justify them.  However these considerations do affect the degree of the defendant’s culpability.

4. Alcohol was not a major factor in these events, at least in relation to the defendant.  His blood alcohol reading was 0.078.  Further, apart from his obvious upset during the interview with police, there is no suggestion in his language or demeanour of being affected by alcohol at this time.  This would not appear to be an alcohol-fuelled act of violence.  There is no evidence at all before the Court to suggest this.

38. A matter of considerable importance is subs (b), that is, the object to prevent crime by deterring the offender and other persons from the community of committing similar offences.  The first is referred to as subjective deterrence, i.e. to the defendant, and the second, is referred to as objective deterrence, i.e. deterrence of others.  Related to this are the purposes set out in subss (c), (f) and (g).  In relation to subjective deterrence, I note the following:

1. The reference material before the Court comes from the following people, all of whom know the defendant and his family, and have for a significant period of time:

1. Dr Alistair McDonnell, the leader of the Social Democratic and Labour Party in Northern Ireland.  He sits in the Parliament at Westminster.

2. Mr Paul Maskely, MP, the Local Member who sits in the Northern Ireland Parliament.

3. Ms Patricia Greene, the girlfriend of the defendant.

4. Mr John Lyttle, an uncle of the defendant, as well as an employer.  He has employed the defendant over a period of time, this employment being that of a Quality Surveyor.

5. Dr Conor Corr, a Consultant Radiologist, and a cousin of the defendant.

6. Ms Nora Harte, a Director of Jigsaw Northern Ireland, an organisation involved in the care of the disabled.  She is also the Governor of a Comprehensive College.

7. Ms Cecilia Gormley, who was the Deputy Principal of the college that the defendant and his brother attended.

8. Ms Barbara Ward, OBE, who is the present principal of the same college.

2. Further I have referred to the recording of the interview and what can be seen on the CCTV of the assault. I would conclude that both these pieces of evidence support the proposition that the defendant showed immediate remorse, a realisation of what he had done, and contrition. His plea is further indicative of this, particularly bearing in mind what I have said about the possibility of a s 418 defence pursuant to the Crimes Act; that is, self-defence.  To this has to be added the lack of any antecedents.

3. Finally there is the contact with the Restorative Justice organisation I have referred to.  This was at the initiative of both the brothers.  On the defendant’s part this is consistent with his remorse.

39. For these reasons I would conclude that subjective deterrence is not a major purpose to be satisfied in the circumstances of this case.  Further, these matters go towards satisfying purposes subss (c) and (d).  In my view, given what I have said as to his good character and his realisation and acceptance of responsibility for his actions at an early stage, I would conclude that protection of the community from this offender and his rehabilitation are also not major considerations.

40. However, objective deterrence is, in my view, a very important consideration.  The community is rightly concerned about male violence, particularly when it involves punching to the head in venues such as Kings Cross that are all too frequent.  These venues are also places that young people attend.  It is important that people realise such violence is to be abhorred and has serious consequences.  People have a proper expectation that they should not have to witness this sort of behaviour nor, more importantly, be subjected to it and its consequences.  This behaviour cannot be allowed to provide some sort of negative and perverse example to others, particularly the young.  This, in my view, as I have said, is a very important consideration in the circumstances of this case.  However, it must not be allowed to suborn the other considerations in relation to the purposes of sentencing.

41. Section 21A of the Sentencing Act sets out what are considered aggravating, mitigating and other factors to be taken into account in sentencing. Amongst the aggravating factors relevant to the circumstances of this case are as follows:

1. The offence involves actual use of violence

2. It is in a public place

3. The injury was substantial

42. However, the first and third of these matters are inherent aspects of the charge that has been laid against the defendant.

43. Amongst the mitigating factors set out relevant to the circumstances of this case are as follows:

1. The offence was not planned

2. The offender has no prior convictions and is of good character

3. The offender is unlikely to reoffend.

4. The offender has shown remorse reflected, particularly in the police interview.

5. The fact of the plea itself, but as circumscribed by s 22 of the Sentencing Act.

44. Further, the record of interview involved many admissions on the part of the defendant which would have assisted the police in their investigations, a matter that should be given consideration as allowed for in s 23 of the Sentencing Act.

45. On consideration of all of the above matters, particularly, but not only, the need for general deterrence, I have come to the conclusion that this is a matter where s 5 of the Sentencing Act is applicable; that is, there is no other alternative by way of sentence other than one of a period of imprisonment.  Having reached this conclusion, there are two further matters that have to be considered. They are as follows:

1. How long should be the prison term.

2. How is the term to be served.

46. As was said earlier, the maximum penalty for this offence is 10 years.  This Court has a jurisdictional limit of two years, but the principles set out in R v Doan (2000) 50 NSWLR 115 must be applied when considering the appropriate term. The Director of Public Prosecutions ("the Director") has elected to have this matter dealt with in the Local Court, and there is a jurisdictional limit in this Court of two years only.

47. The decision of the Court in that case was delivered by Grove J, a decision with which the Chief Justice, Justice Spiegelman, and Justice Kirby, agreed. At paragraph [35]. His Honour states as follows:

“The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for an offence triable within that jurisdiction. In other words where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate with subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. “

48. That conclusion, it noted, is compatible with the observations of Allen J (Smart and Dunford JJ agreeing) in R v Young (Court of Criminal Appeal (NSW), 27 October 1993, unrep):

“It is not the function of Local Courts to give less than appropriate sentences because the matters are being dealt with in the Local Court rather than in the District Court or the Supreme Court.”

49. This means the starting point is that this is an offence attracting a maximum sentence of 10 years. 

50. I must set a term reflective of the objective seriousness of the offence bearing in mind that the worst case attracts a 10 year sentence, and in so determining, merely ensure that what I determine to be the appropriate period does not exceed two years, the jurisdictional limit of this Court.

51. Having considered all the matters that I have set out above, both objective and subjective, it seems to me that this case is somewhere in the range of that 10 - 20% of a worst possible case.  I would conclude that the appropriate starting point for the term of imprisonment would be somewhere in the range of one to two years.  There can be no mathematical certainty about the exact time to be served, but bearing in mind all that I have said I would conclude that the appropriate term is one of 18 months.

52. This has to be further reduced for the fact of the plea.  Whilst this was not at the earliest opportunity, it did occur very shortly after the Director elected not to proceed on indictable (hence limiting the possible penalty that can be imposed).  I might say that in my view of the facts, this was a proper decision, allowing for a more speedy resolution of this matter.  This is a case in my view that if it had proceeded to a hearing would have involved the issue of self-defence to which I have already referred.  This will not now occur and the benefits of time to the Court, and the upset and worry of the complainant and others who would have to be called to give evidence has been avoided.  In the circumstances, it seems to me to be appropriate to give the usual discount for a plea of guilty, namely, 25%.  This means that the appropriate sentence should be one of 13 months.

53. I now turn to how this is to be served.  There are a number of possibilities available:

1. The defendant is to serve the term, subject to the setting of a non-parole period.

2. The defendant should serve the term by way of an Intensive Correctional Order, or Home Detention.

3. The period of sentence is to be suspended with or without supervision.

54. Given the defendant is a citizen of the United Kingdom and not resident in New South Wales, realistically the only two possibilities are the first, that is a full time custodial sentence, or, in the alternative, the last of the matters I have referred to, but without supervision.

55. The determination of this issue is one of considerable difficulty.  I have set out a number of matters that bear upon this decision.  I will reiterate them briefly.  They are as follows:

1. The defendant is of good character.

2. Because of this, supervision would seem to be of little or no use.  Further, in my view, he is unlikely to reoffend.

3. His contrition is self-evident and it was immediate, both in how he reacted to his brother after the event had occurred and what was said in the interview with the police some two hours later.

4. Importantly, this was not an offence without context.  The actions of the complainant in the short time before the event giving rise to the charge, was such as not to give rise to self-defence, as indicated by the plea, but are at least, in my view, sufficient to amount to provocation.  His actions immediately before the hit by the defendant could, in isolation without the reaction of the defendant, be considered as sufficient to constitute an assault upon the defendant, albeit a minor one. If the defendant had fallen over he may well have been seriously injured.

5. There are various statutory considerations that I have referred to as set out in section 21A of the Sentencing Act.  Further, there is the limited assistance of the statistical material that I have referred to earlier in this judgment.

6. The need for objective deterrence.  There is a need for the public, and particularly for people who get themselves involved in these situations, to exercise self-restraint.  If they do not, they must realise that their behaviour will very likely attract a gaol term.

56. I have considered this matter at some length.  I should also say that I have obviously been aware of, and taken into account, the very emotional victim impact statement that was given by the complainant during the course of the sentencing hearing. However, the evidentiary status of this statement, and the use the Court can make of such a statement, is problematic.  It is an untested statement, and probably rightly so. 

57. Whilst I obviously take into account what the complainant says in relation to the effect that this matter has had upon both himself and his father, and what appears most certainly to be forgiveness extended to the defendant, I must also take into account that which was said in R v Palu (2002) 134 A Crim R 174, by Howie J, with whom Levine and Hidden JJ agreed. His Honour said as follows at [37]:

“The attitude of the victim cannot be allowed to interfere with the proper exercise of the sentencing discretion.  This is so whether the attitude expressed is one of vengeance or forgiveness…. Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution.  In particular, crimes of violence committed in public are an affront to the peace and good order of the community and require deterrent sentences… matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim.”

58. Section 12 of the Sentencing Act allows for suspended sentences, with or without supervision. Needless to say, the term of 13 months imprisonment is arrived at without consideration of the manner in which the sentence will be served.

59. In the Second Reading Speech for the Crimes (Sentencing Procedure) Bill 1999 (NSW), New South Wales Legislative Council, Parliamentary Debates (Hansard), 28 October 1999 at 2326, the then Attorney General (NSW), the Honourable R J Debus, said as follows:

“The primary purpose of suspended sentences is to denote the seriousness of an offence and the consequences of reoffending whilst at the same time providing [offenders] an opportunity, by good behaviour, to avoid the consequences.  Their impact on the offender is, therefore, weightier than that of a bond.”

60. Further, I note the comments of Howie J in R v Zamagias [2002] NSWCCA 17 at [28]:

“…the appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflect the objective seriousness of the offence and fulfils the manifold purposes of punishment.  The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil the purposes of punishment”.

61. Further, his Honour says as follows at [32]:

“A sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender.  Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment…it is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. Such a case for suspended sentence may be particularly effective and appropriate.”

62. After consideration of all these issues, the circumstances of this case persuade me that this is such a case that is appropriate to be dealt with by way of a suspended sentence.  This, of course, will be predicated upon the defendant entering into a good behaviour bond for the period of the sentence, namely 13 months.

G Curran

Magistrate

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Decision last updated: 30 June 2015