R v Aiga

[2023] NSWDC 622

District Court

New South Wales

Medium Neutral Citation:

R v Aiga [2023] NSWDC 622

Hearing dates:

26-27 October 2023

Date of orders:

27 October 2023

Decision date:

27 October 2023

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See par [40].

Catchwords:

CRIME – SENTENCE – Causing grievous bodily harm – Being reckless as to causing actual bodily harm – Crimes Act 1900 s 35(2) and common assault – Glassing of a bar worker by a patron at a tavern – Offender was drunk – Long criminal history of alcohol related offences – Female victim left with a 6cm scar on left side of face.

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Callaghan v Regina [2006] NSWCCA 58

Filippou v The Queen [2015] 256 CLR 47

Texts Cited:

Nil.

Category:

Sentence

Parties:

Rex – Crown
Accused – Mr Filo Aiga

Representation:

Counsel:
Rex – Mr Bell.
Accused – Ms Cotton.

Solicitors:
Plaintiff – Office of the Director of Public Prosecutions (NSW)
Accused – Walsh & Blair Solicitors

File Number(s):

2022/00162082

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Filo Aiga stands for sentence as a consequence of pleading guilty to two charges. The first is a charge that on 4 June 2022, at Kogarah in this State, he did assault Aghil Sobi. That is an offence contrary to s 61 of the Crimes Act 1900 and carries a maximum penalty of two years imprisonment. The offence is commonly known as common assault. The more serious crime to which he pleaded guilty was that on 4 June 2022, at Kogarah in this State, he did cause grievous bodily harm to Kyree Bathurst and was reckless as to causing actual bodily harm to Kyree Bathurst. That is an offence contrary to s 35(2) of the Crimes Act 1900. The maximum penalty prescribed by Parliament for that offence is imprisonment for ten years. Parliament has fixed a standard non-parole period of four years for a case in which the offence was in the mid-range of objective seriousness and where there was a finding of guilt returned after a trial. It is not strictly applicable to a person who pleads guilty.

2. The facts are troubling. At the time of the offence, the offender was 28 years old. By the middle of 2022, he was in an intimate relationship with a lady known as Samantha Buckland. Ms Buckland was employed at the Kogarah Tavern at Kogarah as a manager. The victims, Kyree Bathurst and Aghil Sobi, also worked from time to time at the tavern. On 3 June 2022, Ms Buckland worked at the tavern from 8am until 5pm. After she completed her shift, she stayed at the tavern with the offender who had attended there, and they consumed a number of alcoholic beverages together. Ms Bathurst commenced working at the tavern as a barmaid at 7pm. Her shift was to end at 3am in the morning of 4 June 2022.

3. About 7.30pm or 8pm, Ms Buckland and the offender left the tavern with another friend and travelled to the Kogarah Hotel which is also in Kogarah. There they met a number of other friends, and they continued to take alcoholic beverages. After the others started going home, the offender and Ms Buckland began arguing. Ms Buckland decided to leave the hotel and the offender said that he would go with her. They then returned to the Kogarah Tavern, arriving there about 1am. Aghil Sobi was a security guard at the tavern.

4. He was on duty that night, at least between 1am when Ms Buckland and the offender returned to the hotel, up until the time of the crimes now in question. Mr Sobi had never seen the offender cause trouble before, nor behave in a manner which indicated to him that the offender was intoxicated. The first time Mr Sobi saw the offender in the early hours of 4 June 2022 was when the offender was standing at the bar waiting to order a drink. Ms Buckland walked past Mr Sobi and Mr Sobi greeted her. The offender then walked past him with a drink in his hand. At that stage, he thought that the offender may have been drinking earlier, but he still did not believe that the offender was intoxicated. He allowed the offender to stay at the tavern.

5. At some stage, Ms Bathurst poured Ms Buckland and the offender a beer each, but when the offender tapped his card to pay for the purchase payment was declined. The offender kept speaking to Ms Buckland and walked away, rather than responding to Ms Bathurst, pointing out, apparently, that the drinks had not been paid for. In the meantime, the offender and Ms Buckland continued to argue. At one stage the offender vomited at the bar and Ms Buckland cleaned up the mess. She asked the offender to go home and not embarrass her at her normal workplace. However, the offender continued to stay and made comments to her and about her, including calling Ms Buckland "a dog".

6. At one stage, he poured the remainder of his beer into Ms Buckland's glass. He was then yelling at Ms Buckland. He pushed a table which fell over and in turn knocked over two bar stools, which were two stools which had been arranged around the table. This was very close to where Ms Buckland was sitting, which was relatively close to the bar. The offender had with him what appeared to me to be a work bag as well as a construction safety helmet, generally known as a hard hat. The offender threw those away in what appeared to me to be a fit of pique. Ms Bathurst later told the police that she felt a little panicked by that action of the offender. At the time, Ms Bathurst was standing behind the bar in the staff area. The offender was standing on the other side of the bar in the patron area next to Ms Buckland. Ms Bathurst said to the offender "You're embarrassing yourself, just go, you gronk". That was ignored by the offender.

7. The offender then yelled at Ms Buckland, words the effect of, "Sammy, is that what you want." Mr Sobi and Mr Kedar Sharma, who was working at that time as the manager in that evening, then approached to where the offender and Ms Buckland were. Mr Sobi seemed to me to be intent upon returning the table which had been overturned to the upright position and picking up the stools which had been knocked over. At the time that Mr Sobi and Mr Sharma were walking to near the place where the offender and Ms Buckland were, Ms Bathurst walked down to near where they also were and said these words to the offender, "Big strong boy, you felt like a big man yelling at a girl, weak dog".

8. The offender was obviously incensed by what he perceived to be an insult, and yelled back at her, "Fucking dog." The offender then approached the bar where she was standing. He reached across the bar with his right hand and grabbed Ms Buckland's glass of beer which was standing on the bar between him and Ms Bathurst. He threw its contents in the direction of the cash register and Ms Bathurst, then reached across the bar, placing his left hand on the right side of Ms Bathurst's head. With the empty glass in his right hand, he smashed the glass into the left side of Ms Bathurst's face above her left eyebrow. The glass shattered, causing Ms Bathurst's injuries. She began bleeding profusely from her head.

9. Mr Sobi attempted to defuse the situation. The offender continued yelling at Ms Buckland, and he pushed Mr Sobi twice on the chest. That is the allegation of common assault. Mr Sharma, knowing that the offender had smashed a glass, but not realising that it had injured Ms Bathurst, encouraged the offender to leave the tavern and he did so. When it was realised that Ms Bathurst had been injured, Emergency Services were called and Ms Bathurst was taken by ambulance to the St George Hospital. Ms Bathurst sustained a 6cm laceration of her left temple. Before me are photographs taken in the Emergency Department which clearly show a major laceration to the left-hand side of Ms Bathurst's face, although the laceration did not appear to be so pronounced when one looks at the closed-circuit television which was played to me and is Exhibit B.

10. Computerised axial tomography was practiced on Ms Bathurst and identified a left temporal artery laceration and a haematoma in the temporalis muscle with multiple foreign bodies which were presumed to be glass from the broken beer glass. Plastic surgery was then undertaken and took place over five hours. It was necessary to remove the glass fragments from Ms Bathurst's head and repair the laceration to the skin, to repair the frontal branch of the facial nerve which had been severed, and to stitch up the left temporal artery which had been severed. If the temporal artery problem was not fixed promptly, the injury could have been fatal.

11. I do not know how long Ms Bathurst was in hospital. About a week later, as a result of the assault upon her, Ms Bathurst described having a constant pain on the left side of her face and pain on the left-hand side of her mouth that was causing her difficulty with tasks such as brushing her teeth and chewing on the left-hand side of her mouth. She could not move her left eyebrow and could not lay down on the left side of her head. She had poor sleep. She had not returned to work and feared returning to work, especially standing behind the bar, and she lost income due to the time that she spent off work.

12. On 5 October 2022, four months later, a medical officer at the hospital, Dr Flood, saw Ms Bathurst for a brief consultation. He reported that Ms Bathurst "has had good recovery of muscle function following the repair of the left frontal branch of the facial nerve." Dr Flood was not able to comment on the recovery of the frontalis function. I assume by that it is meant that she could not give any prognosis, but she did say that there would be a permanent scar from the 6cm laceration of the side of Ms Bathurst's face. Unfortunately, there is no victim impact statement, so I do not know whether there is any continuing problem that Ms Bathurst has other than the permanent scar that was diagnosed by Dr Flood on 5 October 2022. I do not know whether she has returned to work. I can accept, however, that the violence practiced upon Ms Bathurst will probably remain a stressor with her for many, many years.

13. On the morning of 4 June 2022, the police attended the offender's residence which was in Kogarah and arrested him. He has been in custody ever since. At the time of his arrest, he had cuts and dried blood on his right hand, presumably from the effect of smashing the glass against the left-hand side of Ms Bathurst's head. The offender declined to participate in an interview with the police, but that was his right. It is accepted that he pleaded guilty at the earliest available opportunity and is therefore entitled to a 25% discount of the sentence to be passed upon him for the utilitarian value of his plea of guilty. I am required to sentence the offender not only for the common assault on Mr Sobi, but for inflicting grievous bodily harm upon Kyree Bathurst due to his recklessness in that regard.

14. The offender has a criminal record. On 22 September 2013, he committed two offences. The first was the destruction or damaging of property, for which he was fined $800. The second offence was a crime of violence, affray, for which he was placed on a bond to be of good behaviour for a period of two years. That bond was imposed on 4 November 2013. However, it would appear that in breach of that bond he committed on 22 April 2014 the offence of robbery in company. For that he was sentenced by this Court sitting at Campbelltown to imprisonment for two years and six months, commencing on 20 May 2015 with a non-parole period of 12 months concluding on 19 May 2016.

15. Before entering into custody on 20 May 2015, the offender committed some further offences. On 21 August 2014, he drove whilst unlicensed, for which offence he was fined. Earlier he had used offensive language in or near a public place on 9 April 2014 for which he was fined. After being discharged from custody after the sentence for robbery in company, the offender committed an offence on 23 September 2018 of entering enclosed land without lawful excuse, and destroying or damaging property for both of which he was fined. Those offences were committed on 23 April 2018 and resulted in imposition of a community corrections order for a period of 18 months, commencing on 12 November 2018 and concluding on 11 May 2020. Inter alia, that community corrections order required the offender to abstain from alcohol for the period of 18 months.

16. On 8 October 2019, he was dealt with for a breach of the community corrections order. That led to a fresh community corrections order being imposed for a period of 12 months, which extended it until 7 October 2020. That again required abstention from alcohol for the period of 12 months. On 15 August 2019, the offender drove with a mid-range prescribed concentration of alcohol in his breath or blood. That clearly was a breach of the earlier community corrections order, which led, no doubt, to the imposition of the second community corrections order. For the PCA offense, the offender was given a further community corrections order, again for a period of 12 months, commencing on 8 October 2019 and ending on 7 October 2020. Again, there was a stipulation of abstention from alcohol.

17. However, that community corrections order was breached and that was dealt with by the Waverley Local Court on 17 June 2020 which imposed a further community corrections order for a period of 18 months commencing on 17 June 2020, concluding on 16 December 2021, and that required abstention from alcohol for six months concluding on 6 December 2020. On, it would appear, the night of 24 October 2019 there was a second offence of driving whilst his licence was suspended for which he was fined $1,000 and disqualified from driving for a period of six months commencing on 28 January 2020. There was another offence of the same nature committed on 17 February 2020 for which a community corrections order was again imposed for a period of 12 months commencing on 25 August 2020 and expiring on 24 August 2021.

18. There was another driving a motor vehicle whilst disqualified offence on 8 May 2021 for which there was an intensive corrections order imposed for a period of six months commencing on 16 September 2021 and 15 March 2022. The current offences were clearly in breach of the community corrections order for a period of two years which expired on 16 June 2022. A standard term of community corrections order is not commit any offence. The offender's record, therefore, shows two earlier crimes of violence, affray and robbery in company and a protracted course of disobedience to the law by driving whilst unqualified to do so or whilst his license was cancelled or suspended or disqualified.

19. The offender's personal circumstances can be gleaned from a report of Anita Duffy, a psychologist who interviewed him by AVL on 31 July 2023 for two and a half hours. The offender was also examined by Dr Richard Furst, a forensic psychiatrist again by AVL for a period of 60 minutes on 9 October this year. The history obtained by Dr Furst is much more succinct than that obtained by Ms Duffy and I will use it as the basis of my description of the offender's personal circumstances.

20. At the current time, the offender is 29 years old. He was born in Auckland, New Zealand, but is of Samoan ancestry. His parents are from Samoa. They originally migrated to New Zealand before migrating further to Australia. The offender has been in a relationship for some three years with Ms Taiya Taufahema, and they have two daughters, one aged two and another aged one. They were living together at the time of the offender's arrest on 4 June 2022. If the agreed facts be correct, and I must assume they are, the offender's intimate relationship with Ms Buckland was a breach of his relationship with Ms Taufahema. According to the history obtained by Dr Furst, the offender has worked in the construction industry since completing his schooling and has also worked in carpet-laying, landscaping, scaffolding, concrete formwork and glazing.

21. The offender is the second youngest of seven children. He has two brothers and four sisters. His parents are still married and live together in Campbelltown. His father is a bus driver and his mother works in a factory. They migrated with their family members to Australia in either 1998 or 1999. They have been living in the Campbelltown area since that time. There were apparently no birth complications for the offender. He attended John Warby, Public School in Airds, and won an athletic scholarship to St Gregory's College at Campbelltown, based, I assume, on his prowess at playing rugby league or his perceived ability to play that game well. He was at St Gregory's from Year 7 up to the beginning of Year 10. He was then sent to Samoa to live with his grandparents and attended a high school in Samoa between 2009 and 2011. The offender described his behaviour at school in this fashion to Dr Furst:

"Mr Aiga was below average in his work at school and found it hard to pay attention. He described daydreaming and having trouble listening to his teachers. He did not apply himself much and said, 'There was too much writing.' He described coming into school late, listening to music, talking to his friends, and drawing pictures in class. However, he was better with hands-on subjects and did well with football, including concentrating when playing and training. There does not appear to be a clear pattern of restlessness or hyperactivity, because he would alternate between feeling calm and feeling restless or irritable, especially if annoyed by teachers and/or fighting with other students."

22. Dr Furst then comments upon the offender's playing of rugby league. He points out that the offender played representative level rugby league and continued playing football until he was about 20 years old. Dr Furst observed that things did not work out well for the offender at St Gregory's and that led to his moving to Samoa to live in the care of his grandparents and his extended family there. Dr Furst's history continues in this fashion:

"His home environment in his childhood and teenage years at Airds was unstable. Mr Aiga described his parents being strict Catholics who did not drink and who did not smoke. He witnessed domestic violence on a regular basis. He stated that his father would hit his mother very hard, and that he and his siblings also received 'hidings' [physical punishment] and verbal dressing downs [like emotional abuse]. Even though the physical beatings were hard to take, the emotional abuse and yelling he suffered was even harder to tolerate.

Mr Aiga was living with his grandparents in Samoa as a teenager, ie between the ages of 15 and 17 years. His grandfather was the chairman of the Churches of Samoa, being a well-respected religious leader. Filo was drinking from the age of 16 quite frequently [and] would get into trouble for missing evening prayers and for drinking instead. This was a further source of stress for him.

He returned to Sydney in 2011 and enrolled in Airds High School, completing his HSC."

23. The doctor then referred to the offender's work history, but pointed out that he often missed work because of excessive drinking.

24. The psychologist, Ms Duffy, diagnosed a generalised anxiety disorder, alcohol use disorder, and adult ADHD. Dr Furst did not agree with the diagnosis of ADHD, but made a diagnosis of a complex post-traumatic stress disorder and an alcohol use disorder. Anyone who drinks too much is described as having an alcohol use disorder, just as anyone who takes illicit drugs has some form of substance abuse disorder. It is almost axiomatic. The important thing to note is the complex post-traumatic stress disorder diagnosed by Dr Furst. According to Dr Furst, symptoms of that condition may include:

1. difficulty regulating emotions, including intense feelings of shame, guilt and anger,

2. a distorted self-image or self-sense of identity, including feeling isolated or disconnected from others,

1. difficulty forming and maintaining close relationships,

2. hypervigilance which includes constantly being on alert for danger and feeling easily startled or agitated,

3. chronic feelings of emptiness, hopelessness and despair.

4. dissociation, which is a feeling of being detached from oneself or one's surroundings.

5. difficulty with impulse control and self-destructive behaviours.

25. One of the questions asked of Dr Furst was whether the offender's alcohol abuse was linked to any psychiatric illness he might have. The answer the doctor gave to that question is this:

"People who have experienced childhood trauma, and/or children and teenagers who have complex post-traumatic stress disorder, have a much higher rate of drinking and/or drug abuse compared to people without such a history, including a two-three fold increased rate of drinking and/or drug abuse compared to people in the community with no such childhood trauma and/or complex PTSD history.

Additionally, having a strong family history of addiction or alcoholism, as is the case for Mr Aiga, places that individual at a much higher intrinsic risk of developing alcohol dependency [and/or addiction to drugs of abuse] in their adolescence and adult life. In terms of the variant/causation, approximately 50% of the causation in addictive disorders, and alcoholism is thought to be genetic/inherited.

Mr Aiga's family/maternal history of alcoholism is strong indeed. Therefore, I would suspect that for Mr Aiga individually, there is an even higher rate of genetic variance/causation behind his drinking, somewhere in the order of 70%, with his traumatic experiences and chronic post-traumatic stress disorder, effectively precipitating and maintaining his alcoholism, ie his dependence on alcohol is a consequence of his intrinsic vulnerability to alcoholism coupled with the effects of trauma and negative peer influences making him abuse alcohol from a young age."

26. It must be remembered, however, that the offender's parents are teetotal and there is nothing to suggest that in the offender's nuclear family there was any alcohol abuse. The only familial history referred to by Dr Furst is of problems with drinking amongst the offender's mother's extended family.

27. According to the history obtained by Ms Duffy, the offender was introduced to "home brew" by older cousins when he went to Samoa, and he developed a taste for alcohol there which he continued to use after his return to Australia. In company with his friends in Airds, he drank beer, spirits, cask wine and from his mid-teens would come home drunk. That could only be when he was there after his sojourn in Samoa. Ms Duffy also had a history that there were periods of abstention from alcohol, but when the offender resumed drinking he did so heavily. Although the offender has experimented with cocaine and used another illicit drug in custody, he admitted to Ms Duffy that "alcohol is my poison."

28. Of course, it has been submitted on behalf of the offender that his criminal activity for which he stands for sentence is the direct result of his alcoholism which is the direct result of his chronic post-traumatic stress disorder. However, I have some difficulty in accepting that. Many young men in our society start drinking alcohol in their teenage years, albeit it is unlawful for them to do so. Many young men develop a taste for alcohol and can take alcohol to excess. One does not need to be suffering from chronic post-traumatic stress disorder to suffer from alcoholism or a taste for the drink.

29. It must be pointed out that the offender started drinking at the Kogarah Tavern on the evening of 3 June 2022, at least at 5pm when Ms Buckland finished her shift, and was still taking alcohol at the time of the assault upon Ms Bathurst at 2.20am. In other words, he was drinking alcohol for over nine hours at either the tavern or the hotel at Kogarah. He could have been disinhibited from the alcohol whether he had chronic post-traumatic stress disorder or not. However, I am confident that by now the offender realises the extent to which his abuse of alcohol has caused him difficulties. He has now been in jail since 4 June 2022 for these offences, the direct result of his over ingestion of alcohol. It is clear from the numerous community corrections orders that were imposed that the Local Court at times perceived that his problems were drink related and made orders to try to require the offender to abstain from drinking, but he appears to have failed to do so.

30. What I can accept is, firstly, that the offender's experience of custody because of his chronic PTSD will make his experience of it more onerous. Dr Furst has said that. I am quite prepared to accept that. It is also clear from what the offender told both Ms Duffy and what he told Dr Furst that he wants to participate in courses to try to wean himself from alcohol addiction. He has already done two courses in custody to assist him in that regard and he is supported by both Ms Duffy and Dr Furst in his desire to engage in the intensive drug and alcohol treatment program at the John Morony Correctional Centre at Windsor. I certainly will recommend that to the Department of Corrective Services which would mean moving the offender from where he is currently incarcerated at Kempsey to the John Morony Correctional Centre.

31. I therefore accept that the prospects of rehabilitation are fair as they are at the moment and the more the offender does to stay away from alcohol the easier he will find his life to be. Equally, it is easier to get a hold of alcohol in the community than it is in custody. Therefore, an extended period of supervision by community corrections after release from gaol is appropriate. An extended period of supervision whilst in the community will assist the offender to remain abstinent from drugs. The major question argued on behalf of the offender is the extent of the criminality involved in the current major offence, recklessly causing grievous bodily harm.

32. As I have mentioned to the offender's solicitor, his conduct was both cowardly and unmanly. His response to Ms Bathurst appears to have been provoked by what she said to him but verbal provocation of that nature can in no way justify the violence he perpetrated upon her. Unfortunately, glassing is very common in our society. It was one of the first crimes, when I started sitting in the criminal jurisdiction of this court, that I was called upon to sentence people for and I continue to sentence people for 19 years later. The authorities to which I have been referred by both the Crown and the offender contain a large number of cases in which a glassing sentence has been the subject of an appeal.

33. One of the critical things in sentencing, for the infliction of grievous bodily harm, is the extent of the harm. Here, but for modern surgery, the offence could have been life-threatening. It would appear that most of the physical problems caused by the offending will go away, except that the victim be left with facial scarring, which is unacceptable for a person of either sex, but it appears to me to cause greater concern for women and girls rather than for men. One can understand a person in the position of Ms Bathurst not wanting to return to working behind a bar because of fear that, again, she may be assaulted in the same or a similar fashion. The psychic trauma may stay with her for some time.

34. There are a number of "aggravating factors" which the Crown has pointed to. The first was that the offence involved the actual use of a weapon, namely a glass, which is correct. Grievous bodily harm can be inflicted without the use of a weapon. It can sometimes be inflicted by a punch, which causes people to fall to the ground, or onto a roadway or to hit another structure which causes damage amounting to grievous bodily harm. The Crown also has submitted that the record of previous convictions was an aggravating factor. But the common law principle has been still administered by the superior courts that it is not an aggravating factor, but one which denies the sentencing court the ability to impose a lenient sentence. The offence was also committed while the offender was at conditional liberty which is both, under the Crimes (Sentencing Procedure) Act 1999, an aggravating factor but also is an aggravating factor at common law.

35. In Filippou v The Queen [2015] 256 CLR 47, the Court said that a "sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability." Clearly the offender had been taking alcohol for a long time. He knew in the past that that had caused him problems. He should have reduced his alcohol intake. He was arguing and had been arguing with Ms Buckland for hours. He was argumentative and was pursuing, no doubt, his own opinions about things. It has been submitted on behalf of the offender that his moral culpability was lessened substantially by the fact that he was not responsible for his alcoholism because his chronic post-traumatic stress disorder. I cannot conclude that is what here occurred. He had been drinking for so long it could have happened whether he had chronic post-traumatic stress disorder or not. In could have happened in any event because he had been angry for a period of time with Ms Buckland, with whom he was arguing. However, I do take it into account that it may have been a causal factor, but I cannot conclude that it was the causal factor.

36. Bearing in mind the nature and gravity of the offending, I believe that this case is slightly above the mid-range of objective seriousness. I intend to start the main sentence with a theoretical head sentence of six years. I reduce that by 25% for the utilitarian value of the offender's plea of guilty at the earliest available opportunity. That reduces the head sentence to four years and six months. Applying the statutory ratio, the non-parole period should be three years and four months. Here I accept that there are special circumstances. I

37. believe that the offender should be on parole for a period of two years, during which he will be under the supervision of Community Corrections to ensure that he does not relapse to offending behaviour. The non-parole period will then be two years and six months. I also have to sentence the offender for the common assault upon Mr Aghil Sobi. I intend to impose a one-month fixed term for that offence. The question then becomes when the sentences ought to commence.

38. On 20 March 2023, the offender was found to be in possession of an offensive weapon or instrument whilst he was in jail. It was a jail-made stabbing implement commonly known as a shiv. For that offence, the offender was dealt with by the Blacktown Local Court on 27 June 2023 which imposed a fixed sentence of four months in prison commencing on 20 March 2023 and concluding on 19 July 2023. The Crown has submitted that I ought exclude that period of four months from the sentence to be passed on the offender by me because it was completely different offending. The Crown's submission is this:

"The Court has the discretion to backdate the sentence imposed in the present matter to be totally or partially cumulative with the sentence for the unrelated in custody matter: Callaghan v Regina [2006] NSWCCA 58. The Crown submits that there should be no concurrency between the sentence for the present matter and the sentence for the unrelated offence for the following three reasons. Firstly, the possess offence of weapons/instrument in a place of detention offence was committed on a different date and involves separate offending and hence warrants separate punishment. Secondly, the offending occurred in custody and while the offender was on remand for the present offences. Thirdly, being on remand was not sufficient to deter the offender, demonstrating a complete disregard of the law."

39. The shiv was found underneath the pillow of the offender's bunk in his cell. He freely admitted that it belonged to him. One can accept that the need for the offender to have something with which to protect himself may arise out of the feelings generated by the chronic post-traumatic stress disorder, the symptoms of which as detailed by Dr Furst I have already recited. For example, of those seven symptoms, the fourth is the relevant one: hypervigilance, which involves constantly being on the alert for danger and feeling easily startled or agitated, perhaps having fear of some other inmate doing harm or practicing violence upon him. However, that does not mean that I ought completely ignore that offence. The offender was taken into custody on 4 June 2022. I intend to commence the fixed term sentence for the common assault on 4 July 2022 and the sentence for the current matter on 4 August 2022.

40. Filo Aiga, for the offence that on 4 June 2022 at Kogarah you did assault Aghil Sobi you are convicted. I sentence you to imprisonment for one month commencing on 4 July 2022 and expiring at 3 August 2022. On the charge that on 4 June 2022 at Kogarah in this State you did cause grievous bodily harm to Kyree Bathurst and were reckless as to causing actual bodily harm to Kyree Bathurst you are convicted. I sentence you to imprisonment. I set a non-parole period of two years and six months commencing on 4 August 2022 and expiring on 3 February 2025. I impose a further period of imprisonment of two years to commence upon the expiration of the non-parole period and expiring on 3 February 2027. The total sentence is therefore four years and six months, comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release on parole at the expiration of the non-parole period. I recommend to the Department of Corrective Services that you be admitted to the intensive drug and alcohol treatment program conducted at the John Morony Correctional Centre.

41. Any other orders sought?

42. BELL: No, your Honour.

43. HIS HONOUR: Registrar to provide a copy of the reports of Ms Duffy and Dr Furst to the Department of Corrective Services. Anything else you want, Ms Cotton?

44. COTTON: No, your Honour.

45. HIS HONOUR: Good luck to you, Mr Agia.

**********

Decision last updated: 16 April 2024