R v Bartley; R v Deng; R v McCauley

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Bartley; R v Deng; R v McCauley
Citation:	[2019] ACTSC 392
Hearing Dates:	30 August; 10 October 2019
DecisionDate:	4 December 2019
Before:	Burns J
Decision:	See [186]–[202]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – pleas of guilty – three offenders – two counts recklessly inflicting grievous bodily harm by joint commission – one count assault occasioning actual bodily harm by joint commission – three victims – where offences occurred in daylight in place visible to public – where offending occurred in context where Family Violence Order taken out by mother of two of the offenders against one of the victims – consideration of hardship to two offenders’ families – respective roles of offenders distinguished
Legislation Cited:	Crimes Act 1900 (ACT) ss 20, 24
Parties:	The Queen (Crown) Kodie Bartley (Offender) Alex Bol Deng (Offender) Zac Lucas McCauley (Offender)
Representation:	Counsel S Naidu (30 August; 10 October 2019); P Dixon (4 December 2019) (Crown) J Pappas (30 August; 10 October 2019); C Harris (4 December 2019) (Offenders)
Solicitors ACT Director of Public Prosecutions (Crown) Aulich Law (Offenders)
File Numbers:	SCC 54 of 2019; SCC 53 of 2019; SCC 52 of 2019

BURNS J:

The offenders, Zac Lucas McCauley, Alex Bol Deng and Kodie Bartley have each pleaded guilty to the following offences by way of joint commission:

·
first, recklessly inflicting grievous bodily harm on Joseph Guicci on

19 August 2018;

· second, recklessly inflicting grievous bodily harm on Ryan Tonna on the same date, 19 August 2018; and

· finally, assaulting Peter Greenslade-Palmer and occasioning to him actual bodily harm on 19 August 2018.

The maximum penalty for the offence of recklessly inflicting grievous bodily harm, contrary to s 20 of the Crimes Act 1900 (ACT) (the Crimes Act), is

13 years' imprisonment. The maximum penalty for the offence of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act, is five years' imprisonment.

Mr Bartley first appeared in the ACT Magistrates Court on 19 October 2018 when he was charged with intentionally inflicting grievous bodily harm on all three victims. The matter was adjourned to 16 November 2018 and he was granted bail.

On 16 November 2018 he pleaded not guilty, and the charges were adjourned to

19 November 2018 at which time they were further adjourned to 14 December 2018. The charges were then adjourned to 8 March 2019 for case management hearing. On that date, the charges were committed to this Court for trial. A trial date of

30 September 2019 was set. Mr Bartley entered pleas of guilty to the charges now before me on 23 July 2019.

Mr Deng first appeared in the ACT Magistrates Court on 28 September 2018 when he was charged within intentionally inflicting grievous bodily harm on all three victims. The charges were adjourned to 26 October 2018.

On 26 October 2018 he pleaded not guilty, and the charges were further adjourned to 15 January 2019 for case management hearing. On that date, the charges were further adjourned to 8 March 2019 on which date they were committed to this Court for trial. He also entered pleas of guilty to the present charges on 23 July 2019 after the trial date was set.

Mr McCauley first appeared in the ACT Magistrates Court on 16 November 2018 when he was charged with intentionally inflicting grievous bodily harm on all three victims. The matter was subsequently adjourned to 19 November 2018.

The charges were further adjourned to 14 December 2018, when he pleaded not guilty and the charges were further adjourned to 8 March 2019 for case management hearing. On that date, the charges were committed to this Court for trial. He also entered pleas of guilty to the present charges on 23 July 2019 after the trial date had been set.

The facts

I will now turn to the facts. Mr Bartley and Mr McCauley are brothers and Mr Deng is friends with them. The Agreed Statement of Facts records that on 19 August 2018 the victim, Joseph Guicci, was at his home in Giralang, Australian Capital Territory (ACT). He was having a barbecue with his cousin, Ryan Tonna, and his friends Peter Greenslade-Palmer and OC. At about 4.00 pm that day, Mr Guicci was watching football on television in his lounge room with Mr Tonna and OC.

Mr Greenslade-Palmer was in the front yard where he was involved in an argument with Julie Bartley. Ms Bartley was the next door neighbour of Mr Guicci and the mother of Mr Bartley and Mr McCauley. Ms Bartley and Mr Greenslade-Palmer were previously in an intimate relationship which ended about six months prior to 19 August 2018.

I will interpolate at this point to note that Mr Bartley gave evidence at the sentence hearing that he had been told that during that relationship Mr Greenslade-Palmer had physically assaulted his mother. I am prepared to accept his evidence that this is what he had been told and what he believed. That he held such a belief is consistent with what occurred after 4.00 pm on 19 August 2018. It provides a motive for him to have attacked Mr Greenslade-Palmer and makes explicable his attack upon him. There was, moreover, evidence by way of medical reports establishing that Ms Bartley had presented at hospital in May 2018, reporting being assaulted by her partner and exhibiting injuries consistent with her complaint. In addition, Ms Bartley obtained a Family Violence Order against Mr Greenslade-Palmer in early 2018.

In a taped interview with police on 5 September 2018, Mr Guicci said that when he attempted to break up the argument between Ms Bartley and Mr Greenslade-Palmer in front of his house before the assaults occurred, Ms Bartley complained to him that Mr Greenslade-Palmer had kicked her. Due to the contemporaneous nature of that accusation, I am prepared to accept that he had kicked her on that occasion. I am satisfied that Mr Greenslade-Palmer assaulted Ms Bartley on 19 August 2018 and had previously assaulted her while they were in a relationship.

Returning to the facts of the offending, Mr Guicci could hear the argument in the front yard between Ms Bartley and Mr Greenslade-Palmer. He went outside to try to calm the situation down. He told Mr Greenslade-Palmer to stop arguing and to “get inside”. He also told Ms Bartley to return to her home. In doing so, Mr Guicci used quite rough language as appears to have been his habit. Mr Guicci then threw a bowl of water on Mr Greenslade-Palmer. Ms Bartley returned to her home and Mr Guicci went back to his home. Mr Greenslade-Palmer remained in the front yard.

It is clear from Closed Circuit Television (CCTV) footage of the events which occurred in the front yard of Mr Guicci's home, that Mr Greenslade-Palmer was heavily intoxicated. The events to which I now refer were captured on very clear colour CCTV footage from two cameras positioned at the front of Mr Guicci's home.

I have had the opportunity to view this CCTV footage on many occasions. A neighbour who saw these events, Thomas Parle, gave a statement to the police. This statement was tendered on behalf of the offenders at their sentence hearing. He said that both

Mr Guicci and Ms Bartley were loud neighbours and he would often hear them in front of their houses yelling or carrying on. I note that there is no suggestion in that statement that they were yelling at each other.

In fact, Mr Parle stated that whilst he had not had much to do with either of his neighbours they seemed to get along pretty well, and he assumed them to be friends. On 19 August 2018, he heard a commotion across the road in front of Mr Guicci's house. He could hear yelling and a voice he recognised as Mr Guicci's laughing. He went outside to have a cigarette and could see a person that he described as

Ms Bartley's son on the phone.

I am satisfied that this person was Mr McCauley. While he was on the phone, he kept turning around to Ms Bartley and saying to her “calm down mum”. A purple car then pulled up out the front of Ms Bartley's house. A male and female got out of the car. I am satisfied that the male was Mr Deng. Mr Deng had a conversation with

Mr McCauley. Then Mr Deng and the female got back in the car and left.

At around 4.37 pm, Mr Bartley and his girlfriend, Tenisha Reed, pulled up outside

Ms Bartley's house in a white car. He exited his car so quickly that he neglected to engage the handbrake. He removed his white shirt before running towards

Mr Greenslade-Palmer who was still standing in Mr Guicci's front yard.

Mr Bartley ran towards Mr Greenslade-Palmer and threw a punch with his right fist to Mr Greenslade-Palmer's head. Mr Greenslade-Palmer lost his balance and fell to the ground. Mr Bartley continued to punch him multiple times to his head and torso. The offender, Mr McCauley, was standing nearby watching on and supporting Mr Bartley. Mr Guicci ran out of the front door and attempted to pull Mr Bartley off

Mr Greenslade-Palmer. Mr McCauley tried to stop Mr Guicci from intervening, but

Mr Guicci was eventually successful in stopping Mr Bartley from attacking

Mr Greenslade-Palmer.

At that time, Mr Greenslade-Palmer lay hurt on the ground. Mr Bartley then turned his attention to Mr Guicci, punching him to the head with his right fist. Mr Guicci attempted to push Mr Bartley away and tried to evade the punches by leaning away. Mr Guicci and Mr Bartley then began throwing punches at each other.

At this point, Ms Bartley walked over and was yelling in Mr Guicci's direction. Ms Reed also approached carrying a long stick.

At about this time, the car carrying Mr Deng and his girlfriend, Jessica Warren, returned. Mr Deng got out of the car and ran directly to the position where Mr Bartley and

Mr Guicci were struggling. Mr Deng punched Mr Guicci multiple times before Mr Guicci fell to the ground. The physical altercation continued behind a caravan which was parked in Mr Guicci's front yard and which obscured the vision from the CCTV camera.

As a result of the commotion in the front yard, Mr Tonna came out the front door of

Mr Guicci’s house and attempted to stop Mr Bartley and Mr Deng from attacking

Mr Guicci. Mr McCauley intervened and punched Mr Tonna to the face. Mr Tonna walked back towards the front door and Mr Bartley chased him and pushed and hit him on his back. Mr Tonna went back into the house where he asked OC to call the police.

Mr Greenslade-Palmer remained on the ground in the front yard, curled up in the same position where he had fallen. Mr Bartley walked over and stomped aggressively on the ground near Mr Greenslade-Palmer. Mr Guicci managed to regain his feet and was again approached by both Mr Deng and Mr Bartley who both continued to punch

Mr Guicci with closed fists multiple times to his head and face.

Mr Bartley then struck Mr Guicci to the face forcefully with his knee causing Mr Guicci to fall to the ground. While Mr Guicci was on the ground, both Mr Deng and Mr Bartley stomped aggressively on the ground near his stomach. Mr Bartley's left shoe fell off in the process. Mr Guicci again attempted to get to his feet and in response Mr Bartley struck him to the head with his left hand while Mr Deng used his right foot to forcefully kick Mr Guicci to the face.

Mr Guicci fell back onto the ground where Mr Deng then stomped on his head as he lay on the ground. Mr Guicci and Mr Greenslade-Palmer remained on the ground. The offenders then began to leave the property in the direction of Ms Bartley's house.

As Mr Deng was leaving, OC threw a glass bottle at him from inside Mr Guicci's front door. Mr Deng then approached the front door, kicked the door and pulled open the screen door and struck out with his left hand before walking away. Mr McCauley then picked up a water bottle and threw it at Mr Greenslade-Palmer who was still on the ground. The bottle struck Mr Greenslade-Palmer. All three offenders then left

Mr Guicci's property, leaving Mr Guicci and Mr Greenslade-Palmer injured on the ground.

Mr Guicci had a bloodied face and struggled to get to his feet. He stumbled towards his front door at which time Mr Deng and Mr Bartley returned to Mr Guicci's property and engaged in a verbal argument with him. Mr Guicci told him to get off his property. He then entered his house. Mr Greenslade Palmer remained curled up on the ground. The offender, Mr Deng approached him and stood over him in an aggressive manner whilst speaking to him. Mr McCauley then joined Mr Deng and spoke aggressively to

Mr Greenslade-Palmer.

A neighbour who heard the disturbance called triple zero. Shortly thereafter, a car-load of the offenders’ friends arrived at Ms Bartley's house. At 4.45 pm,

Mr Greenslade-Palmer managed to slowly crawl to Mr Guicci's front door.

The offender, Mr Deng, saw this and approached the front door while saying something to the occupants inside and pointing his finger. At about 4.49 pm, the police arrived with their lights activated. The offenders, Mr Bartley and Mr Deng, quickly left the area just before the police arrived.

The offender, Mr Bartley was arrested by police on 8 September 2018. He agreed to participate in a record of interview with police but did not make any comment throughout the interview. He was released the following day on bail by police.

On 14 September 2018, the offender, Mr Deng, attended the City Police Station with his lawyer. He was arrested and released on bail later the same day by police.

On 16 September 2018, the offender, Mr McCauley, attended the City Police Station where he was arrested. He was released on police bail later that day.

Injuries to victims

Mr Guicci

A medical report setting out the injuries sustained by Mr Guicci was prepared by

Dr Jane Van Diemen, a Forensic Medical Officer with the Clinical Forensic Medical Services in the ACT. The report notes that Mr Guicci was transported to hospital via ambulance and arrived at 5.36 pm on 19 August 2018. On assessment, he was found to have a displaced fracture of the right angle of his jaw with transection across the right mandibular canal and involvement of the 48 dental alveolus, as well as a comminuted fracture of his left mandibular angle extending into mandibular body, the left mandibular canal and involving the 36, 37 and 38 dental alveoli.

On 20 August 2018, Mr Guicci underwent the following procedure under general anaesthetic: open reduction and internal fixation of right mandibular angle fracture, open reduction and internal fixation of left mandibular angle/body fracture, excision of tooth 48 and insertion of four intermaxillary fixation screws. Mr Guicci also underwent radiological investigations including CT scans and x-rays and required opiate analgesia for management of severe pain.

He was required to take intravenous and oral antibiotics. A pureed diet was recommended for six weeks. He was documented as having been previously diagnosed with depression for which he received regular medication.

In her report, Dr Van Diemen noted that Mr Guicci's right mandibular fracture was markedly displaced requiring surgical realignment and repair. She stated that comminuted fractures are complex fractures where the bone has broken into several pieces and that Mr Guicci's left mandibular fracture was comminuted requiring complex surgical repair.

Multiple surgical incisions were required to repair the fractures both inside and outside of his mouth. The mandibular fractures were associated with dental trauma requiring permanent surgical removal of tooth 48, his lower right wisdom tooth. Damage was also noted on radiological imaging to the supporting structure of his teeth 36-38 on the lower left side.

Mandibular fractures that involve the teeth are considered open or compound fractures as they open into the mouth and are therefore contaminated. This contamination increases the risk of infection and antibiotic therapy is required to reduce this risk.

The plates and screws required to surgically fix the mandibular fractures are usually permanent and remain visible on radiological imaging. Complications of mandibular fractures include delayed healing or non-healing fractures, infection, nerve damage, reduced mouth opening and misalignment of the jaw which may, in turn, affect eating and speaking.

Dr Van Diemen stated that Mr Guicci may have permanent and long-lasting sequelae from his injury including scarring as a result of the surgery required to repair his complex fractures, a permanent loss of tooth 48, a possibility of further dental injuries or tooth loss, a possibility of ongoing pain and discomfort, a possibility of further reparative and/or cosmetic surgery at a later date, and a possibility of psychological sequelae related to the experience of the traumatic event.

Mr Tonna

Dr Van Diemen also prepared a report setting out the injuries sustained by Mr Tonna. Mr Tonna was booked for urgent elective surgery at The Canberra Hospital following assessment by the Oral and Maxillofacial surgeon on 20 August 2018. He was found to have suffered a right parasymphysis mandibular fracture. On 24 August 2018, he underwent an open reduction and internal fixation of that fracture under general anaesthetic. He also underwent radiological investigations including x-rays and was treated with opiate analgesia for management of severe pain. He also required intravenous and oral antibiotics.

He was discharged from The Canberra Hospital on 25 August 2018 to be followed-up with his specialist and his general practitioner. Dr Van Diemen stated that Mr Tonna may have permanent and lasting sequelae from his injury including scarring from the surgery required to repair his mandibular fracture, a possibility of ongoing pain and discomfort, and a possibility of psychological sequelae related to the experience of the traumatic event.

Victim Impact Statements

A Victim Impact Statement from Mr Guicci was read at the sentence hearing. Mr Guicci speaks of feeling unsafe in his home and reliving the incident every time he comes home. He states that he has contemplated selling and moving away. He feels guilty about what this incident has done to his parents, sister and extended family.

He said that he finds it hard to get motivated which causes problems in his business. He was unable to work for about six months. When he started working again, his father came with him because he found it hard to make work related decisions. He said that he has become very emotional and does not trust himself to make correct decisions. He does not trust people as he did in the past and no longer has many friends.

He underwent three operations to fix his broken jaw. After the first operation, he had metal plates inserted and was on a soft food diet for six weeks. In October 2018, he had to endure a more complex operation to reset his jaw and this time it was completely wired up and he was on a liquid only diet for another six weeks.

During these periods, he had numerous visits to the Outpatients' Clinic at

The Canberra Hospital for check-ups and rewiring. Due to problems with the metal plate on the right side of his jaw, it was removed in April 2019. He has been advised that he will need to have dental work done in the future.

During the period of about six months, he took strong pain medication, could only eat pureed foods and found it hard to speak. In October 2018, he was diagnosed with

Post-Traumatic Stress Disorder (PTSD) and was prescribed medication to help him deal with anxiety, anger, depression, guilt, sleeplessness and nightmares. He sees a psychiatrist and attends counselling on a regular basis. He has been told that his symptoms may last forever.

There was a suggestion on behalf of the offenders that some of Mr Guicci's treatment needs may have arisen from a later incident in September 2018 in which it was suggested that his jaw was re-broken in an incident with police. Mr Guicci agreed that he had been involved in incidents with the police in September 2018, at a time when he was upset about the present offences and he was on a lot of pain killers and drinking alcohol; but he did not accept that his jaw had been re-broken in any such incident. There was no evidence to support the assertion that Mr Guicci's jaw had been

re-broken at that time and I do not accept it.

Victim Impact Statements were also provided by Mr Guicci's father and mother. They speak in particular of the significant psychological consequences that these events have had upon Mr Guicci.

A Victim Impact Statement was also provided by Therese Tonna, the mother of the victim, Ryan Tonna. She refers to the significant impact that these events have had upon her son whose jaw was broken in the incident. She refers to the distress she suffered seeing her son in hospital. She was sick and completely distraught when she saw the video recording of the assaults and she now relives these images in her head every day.

After the assault, her son became increasingly distant and isolated from his family and friends. Ms Tonna was sick with worry about his condition. On one occasion, Mr Tonna broke his hand after hitting a wall stud out of frustration. The pain associated with the surgery her son had to undergo was considerable and he was unable to sleep. He lost weight and became very agitated.

He stopped taking an interest in things that had previously interested him. He lost his employment and was unable to continue living in his house as he was unable to pay rent. He was diagnosed with PTSD in November 2018. As at the date of the

Victim Impact Statement, 29 August 2019, Ms Tonna was continuing to try to have her son engage with services to assist him back into a normal life and to get him back to some type of work. Her relationship with her husband and other son had also been affected by this incident.

A Victim Impact Statement from Mr Tonna himself was also tendered. He states that since the assault on him, his life has been turned upside down. He feels very depressed and degraded as a person. He became too scared to leave his home even to go to work. He states that he witnessed his cousin, Mr Guicci, being viciously assaulted and despite his efforts to assist him, he was unable to stop the assault from continuing. He feels guilty about this and that his cousin was beaten badly. The events run through his mind constantly.

As a result of his broken jaw, Mr Tonna was on a soft diet and subject to physical restrictions for eight weeks which impacted his ability to return to work. He became increasingly depressed and was unable to sleep. He continues to have difficulty sleeping. He was placed on strong medication for pain. He has increased the security in his home, installing cameras, changing locks and getting a bigger gate and locks to secure his property.

He has lost his job and his house due to not being able to motivate himself to go to work and engage with appropriate services to assist in his recovery. He has difficulty getting out of bed. He does not believe that he will ever be the same again.

No Victim Impact Statement was prepared by Mr Greenslade-Palmer. He suffered abrasions, pain and tenderness to various parts of his body as a result of these offences.

Evidence from offenders

It is appropriate at this point that I consider the evidence given by the offenders,

Mr Bartley and Mr Deng, concerning the events of 19 August 2018.

Mr Bartley

Mr Bartley testified that on 19 August 2018, he was at a football game with his partner and her father. He missed three calls from his mother. He then received a phone call from his brother, Mr McCauley, saying that Mr McCauley had also received a call from their mother, Ms Bartley.

Mr McCauley told Mr Bartley that their mother had been crying and he, Mr McCauley, was going to her house to see if she was all right. Mr Bartley said that he subsequently received another phone call from his brother to say that he was “confronted by four men, that they were trying to bash him and his partner” and that their mother's house “had been smashed up”.

Mr Bartley said that he panicked and left the football game and raced to his mother's house to help his brother. He said that on the trip there he received a phone call from Mr McCauley's partner. He said that she was hysterical, screaming and was scared for her life and Mr McCauley's life. Mr Bartley said that when he arrived at his mother's house, Mr McCauley ran up to him and said that he did not know where their mother was. He said that he had checked her house and she was not answering. He said that he thought that the neighbours had her.

At that point, Mr Bartley said Mr Greenslade-Palmer then screamed out that he,

Mr Bartley, was there and to get weapons. Mr Bartley said that he only acted as he did thereafter because he was scared for his family's lives.

In cross-examination, Mr Bartley said that he did not recall speaking to Mr McCauley when he arrived and did not recall taking his shirt off. He said that he ran at

Mr Greenslade-Palmer “after I assessed the situation”. By that, he said that he meant that he saw everything outside his mother's house was smashed and that his mother was not there. He agreed that Mr Greenslade-Palmer was standing by himself in front of Mr Guicci's house and that there was no altercation occurring near him.

He agreed that Mr Guicci attempted to pull him off Mr Greenslade-Palmer and suggested that Mr Guicci was taunting him. He said that he saw Mr Guicci reaching for something in his back pocket, by which I understand him to mean that he believed that Mr Guicci had a weapon. He said that the fight was a bit of a blur although he recalled seeing Mr Guicci with blood on his face.

He said that he kept hitting Mr Guicci because he kept taunting him, saying that he was going to kill them. Mr Bartley also stated that Mr Tonna punched him twice in the ribs at a time when the camera was unable to record that incident because it occurred behind the caravan in the front yard. He said that it had not occurred to him to call the police. There are aspects of this version of events which I do not accept.

I do not accept that Mr Bartley believed that his mother was being held in Mr Guicci's house when he attacked Mr Greenslade-Palmer. As a question of fact, I am satisfied that Ms Bartley was never held inside Mr Guicci's house. Constable Van Oosten testified that he conducted a search of police records and can find no record of any complaint being made by Ms Bartley about such an incident.

Information provided by Ms Bartley to Constable Janssen at the scene on

19 August 2018, did not include any claim that she had been held against her will in

Mr Guicci's house. Ms Bartley did complain to Constable Janssen that her ex-partner, Mr Greenslade-Palmer, and Mr Guicci had been causing her issues. In addition, the CCTV footage shows Mr Bartley immediately advancing on and attacking

Mr Greenslade-Palmer after his arrival at his mother's house.

Mr Bartley did not attempt to enter Mr Guicci's premises or to make any inquiry of those in the premises as to where his mother might be. Mr Bartley gave no evidence of having questioned Mr McCauley at any time as to the basis of the beliefs supposedly held by Mr McCauley that his mother's neighbours were holding her, presumably against her will.

It is also abundantly clear from the CCTV footage that at this time, Ms Bartley was in her own home. It is impossible to believe that Mr McCauley, who arrived at and entered his mother's house before Mr Bartley arrived, was unaware of the fact that his mother was in her house. The statement provided to police by Mr Parle makes it clear beyond any doubt that Mr McCauley knew that his mother was not in Mr Guicci’s residence before the other offenders arrived.

It defies belief that Mr McCauley would not have told Mr Bartley that their mother was in her house when he spoke to Mr Bartley before the attack on Mr Greenslade-Palmer began. Part way through the incident, Ms Bartley emerges from her home and came over to the scene of the assaults. It is impossible to believe that Mr Bartley could have continued at that point to believe that his mother was being held in Mr Guicci's residence. Yet he, nevertheless, continued the attack.

It is also difficult to accept that Mr Bartley received a telephone call from Mr McCauley saying that Mr McCauley had been attacked by four men. There is nothing in any of the material before me, particularly the CCTV footage, to suggest that Mr McCauley had attended his mother's residence on 19 August 2018 until a few minutes before

Mr Bartley arrived.

It is theoretically possible that Mr McCauley may have lied to Mr Bartley about this matter, but in the absence of any explanation as to why he would do so, I consider this to be very unlikely. I also do not accept the implied assertion by Mr Bartley that he believed that Mr Guicci had a weapon.

Having carefully reviewed the CCTV footage, I am satisfied that when he emerged from the house, Mr Guicci attempted to separate Mr Bartley from Mr Greenslade-Palmer. At that point, Mr Bartley attacked Mr Guicci and in the course of that activity, Mr Guicci's pants began to fall down. Mr Guicci is seen to move his right hand behind his body, take hold of his pants and pull them up. He then put both hands in front of him clearly indicating that he had no weapon. At this point, Mr Bartley again attacked him, at which point Mr Guicci removed his glasses and held them in his right hand.

I do not accept any assertion that Mr Bartley believed that Mr Guicci had a weapon. I also do not accept the assertion that Mr Greenslade-Palmer yelled to the people inside Mr Guicci's house that they should get weapons. First, Mr Bartley is the only person who says that this occurred. His credibility is significantly weakened by what I am satisfied was deliberately false evidence that when he arrived at his mother's house and attacked Mr Greenslade-Palmer, he believed his mother was being held in

Mr Guicci's house, and that he only attacked Mr Guicci because he believed that he had a weapon which he was going to use. In addition, none of the people who subsequently emerged from Mr Guicci's house carried weapons. Indeed, the only weapons produced during this incident were produced by those supporting the offenders.

Mr Deng

I do not accept the assertion that Mr Tonna attacked Mr Bartley behind the caravan. Only Mr Bartley gave evidence to such an attack and I am satisfied that he is not a credible witness. Finally, I reject Mr Bartley's assertion that he acted as he did on this occasion because he was afraid for the lives of his family. He was the initial aggressor and he maintained a high level of aggression throughout this incident. Contrary to his evidence, he made no assessment of the situation when he arrived and immediately attacked Mr Greenslade-Palmer.

Mr Deng gave evidence that he is the best friend of Mr Bartley. In 2013, Mr Bartley came to his assistance in a brawl with a group of Sudanese youth. Mr Bartley was injured in that incident.

Mr Deng testified that on 19 August 2018, he received a telephone call from

Mr McCauley. He said that Mr McCauley was crying and saying, “[p]eople are trying to bash me” and were at the front of his mother's home. Mr Deng said that he then drove to Mr McCauley's mother's house and when he got there the whole front yard was “smashed up”.

He went to the door and knocked and Mr McCauley was there and said he was fine. Mr Deng told him to stay inside the house. He then went next door and said that when he arrived everyone was fighting. He said that there were three people, with two people holding Mr Bartley on the car and he ran to save Mr Bartley. He said that the people who were fighting with Mr Bartley had a knife and were yelling racist stuff at him.

In cross-examination, Mr Deng agreed that in 2016 he was involved in an incident at a nightclub where he knocked out a male person with one punch causing the male person to fall and strike his face on a metal table. The male person suffered a fractured jaw. He agreed that he was sentenced to a term of imprisonment to be served by way of an Intensive Correction Order. Mr Deng said that he became involved in the incident on 19 August 2018 because he felt obliged to Mr Bartley because of what he had done to help him in the 2013 incident.

In cross-examination, Mr Deng also agreed that when he and Mr Bartley were throwing punches at Mr Guicci, he was not saving Mr Bartley at that time. He said that he had let his anger “take over”. As with the evidence of Mr Bartley, there are aspects of the evidence of Mr Deng that I do not accept. I do not accept the assertion that a knife was produced by any of the occupants of Mr Guicci's house during this incident.

Having viewed the CCTV footage carefully, I am prepared to accept that when Mr Deng came around the end of the caravan towards where Mr Bartley was struggling with

Mr Guicci, Mr Deng may have thought that Mr Bartley and Mr Guicci were fighting. It is important to note, however, that no punches at that time were thrown by Mr Guicci. The actions of the offender, Mr Deng, thereafter in joining in a brutal assault on Mr Guicci, leads me to conclude that he did not engage in this violent activity because of any fears for the wellbeing of Mr Bartley. Even if Mr Deng had momentarily believed that

Mr Bartley was in need of assistance, within a few seconds it must have become apparent that Mr Bartley was the aggressor.

I also do not accept Mr Deng's evidence that he went to Mr Bartley's mother's house because he received a telephone call from Mr McCauley in which Mr McCauley said that he was being attacked. The evidence clearly establishes that Mr McCauley was never attacked in that way and there is no logical reason why he would have lied to

Mr Deng about that matter. In addition, Mr Deng's credibility was weakened by his assertion that one of the occupants of Mr Guicci's house, who was involved in the incident that afternoon, was armed with a knife.

Consideration

Mr Deng, Mr Bartley and Mr McCauley were heavily muscled and apparently fit young men at the time of this incident. Mr Guicci was older, less muscled and less fit than they were. Mr Greenslade-Palmer was heavily intoxicated, unable to properly defend himself. This was a cowardly attack by a group of fit and strong young men carried out in daylight in a suburban street within sight of the general public.

It caused significant injury to Mr Guicci and Mr Tonna; the effects of which continue to this day and will likely do so indefinitely. The injuries inflicted on Mr Guicci and

Mr Tonna do not fall within the worse type of injury that may be categorised as

grievous bodily harm, but they were, nevertheless, serious injuries. The difference in appearance of the offenders, Mr Bartley and Mr Deng, between 19 August 2018 and the sentence hearing on 10 October 2019 was striking. Both were much more heavily muscled on 19 August 2018.

It comes as no surprise to learn that Mr Bartley told the author of a Pre-Sentence Report that he used steroids from the ages of 17 to 23 years; 23 years being his age at the time of these offences. The Agreed Statement of Facts notes that Ms Bartley and

Mr Greenslade-Palmer engaged in an argument in front of Mr Guicci's house on the afternoon of 19 August 2018 before any of the offenders arrived at the scene. The Agreed Statement of Facts also reveals that Mr Guicci had sworn at Ms Bartley when he told her to go home. It is likely that the offender, Mr McCauley, was contacted by

Ms Bartley because she was angry with Mr Greenslade-Palmer and perhaps Mr Guicci.

I am satisfied that the offenders, Mr Bartley and Mr Deng attended the premises with a view to assaulting Mr Greenslade-Palmer. This is consistent with the CCTV footage which demonstrates both offenders immediately rushing in to attack those in front of

Mr Guicci's house. Whether the offenders had some grudge against Mr Guicci concerning his interactions with Ms Bartley that afternoon, or whether he was simply collateral damage, I am unable to say.

I am, however, in no doubt that both of these offenders premeditated violence before attending the scene. The actions of Mr McCauley in following Mr Bartley to Mr Guicci's front yard, not attempting to stop Mr Bartley's attack on Mr Greenslade-Palmer and in stopping others from coming to the assistance of those victims, satisfies me that he also premeditated violence before attending Mr Guicci's front yard.

Subjective Features

Mr Bartley

I will now consider the subjective features for each offender. The offender, Mr Bartley, has no prior criminal history. He is currently 24 years old and was 23 years old at the time of these offences. A Pre-Sentence Report reveals that he was born and raised in Canberra. His childhood was marred by his mother's drug use, mental health issues and domestic violence perpetrated by her partners. As a consequence, the offender moved around a lot and was homeless for some periods.

His biological father left the family home when he was five weeks old. He first connected with his biological father when he was 15 years old before again losing contact for a number of years. He has recently reconnected with his father and described their current relationship as stable.

He advised that his relationship with his mother has been strained throughout his life and he has had no contact with her since these offences. He has three step-sisters with whom he had limited contact. He identified his step-father, who primarily raised him, as a positive support in his life.

He also reported he has been in a relationship with his current partner for six years. He described their relationship in positive terms. He has no dependants. Mr Bartley reported that he resides with his partner in a property that they are purchasing. In his evidence at the sentence hearing, he stated that if he was incarcerated as a result of these offences, his partner will probably not be able to continue to afford the mortgage payments.

Mr Bartley told the author of the Pre-Sentence Report that he left the formal education system at the start of Year 10. After leaving school, he commenced a flooring apprenticeship but did not complete it. He subsequently obtained a Certificate III in flooring and has a consistent employment history in construction related employment. For the last 18 months, he has worked as a sole trader in the flooring business. He makes regular payments towards his mortgage and car loan from his earnings. He apparently has a substantial debt to the Tax Office.

Mr Bartley reported he first consumed alcohol at the age of 14 years and would binge drink on weekends with friends until he turned 17 years old. He denied any alcohol use prior to committing the current offences. He also reported experimenting with MDMA and cocaine on one or two occasions when he was intoxicated. He also disclosed the use of steroids from the ages of 17 to 23 years.

The Pre-Sentence Report notes that Mr Bartley has participated as a

volunteer fire fighter. The Report notes a report had been prepared by a psychologist,

Dr Danielle Clout, to which I will refer in a moment. The offender told the author of the Pre-Sentence Report that he experienced suicidal thoughts due to his childhood and the present court proceedings, but also stated that he would not act on those thoughts due to his partner and family. He volunteered that he was prepared to engage in mental health treatment as required.

He reported having a lower back injury for which he had sought treatment from the Canberra Spine Centre. A letter from that Centre, dated 20 August 2019, confirmed that he is likely to suffer recurring episodes of low back pain. With regard to the present offences, the Pre-Sentence Report noted that the offender acknowledged that his actions were inappropriate and he did not attempt to justify his offending behaviour.

The author of the Report noted that the offender presented with a number of pro-social factors including family support, stable accommodation and a consistent employment history. His mental health and anger management appeared to be his main criminogenic risks. He was assessed as being a medium-low risk of general reoffending, which could be improved if he continued interventions to address mental health issues and engaged in an appropriate anger management related program.

A report dated 20 August 2019 from Dr Clout was tendered on behalf of the offender. The report refers in greater detail than the Pre-Sentence Report to the abuse and deprivation to which Mr Bartley was subjected in his childhood. The report also addresses the offender's prior drug and alcohol use. In that regard, the information that he provided to Dr Clout was generally consistent with the information that he provided to the author of the Pre-Sentence Report, except that he apparently provided no history to Dr Clout of steroid abuse.

On the basis of the history provided to her by the offender, Dr Clout stated that the offender was currently suffering from symptoms consistent with the diagnostic criteria for Major Depressive Disorder with anxious distress (recurrent episode, current

severity – severe), and PTSD. Dr Clout said that at the time of the offending, the offender's PTSD was characterised by severe re-experiencing and avoidance symptoms, along with negative emotional states and cognitions, and significant

hyper-arousal symptoms such as hypervigilance, exaggerated startle response and irritability.

She expressed the opinion that due to the nature and extent of his past trauma and the distress he reported experiencing when triggered, his level of reported PTSD symptomology was indicative of a disorder in the severe range. Dr Clout stated that PTSD is commonly associated with impairments in cognitive processes including attention, memory, judgement, information processing and decision making skills.

In addition, one of the primary causes of disinhibition is being in a negative emotional state and PTSD is further associated with reckless and angry behaviours. She expressed the opinion that the offender's symptoms are particularly likely to have impacted on his offending behaviour, given the context of a significant environmental trigger at the time, and the subsequent aggravation of his symptoms.

She considered that because of the diagnosis that she made, the offender is likely to find a sentence of full-time imprisonment more onerous than a person without those conditions. Specifically, she said that his current symptoms are likely to impair his ability to cope with the challenges and limitations of a custodial environment, and it is likely he will be more adversely affected by the environmental restrictions, isolation and stigmatisation of imprisonment.

She stated that his negative self-evaluation is also likely to worsen in the custodial environment and the loss of his protective factors, such as his house, job and partner support, will increase his overall level of symptomology and risk of harm to self.

Dr Clout stated that despite the extensive nature of the offender's background trauma, the likelihood of a positive treatment outcome and full remission and rehabilitation from his PTSD is significantly higher than for most of Dr Clout’s clients with his background in the criminal justice system.

She stated that he does not present with complicating factors that can be associated with severe trauma such as borderline personality disorder traits or substance abuse. Dr Clout stated that the offender's PTSD predated the offence but that he identified the onset of the Major Depressive Disorder in August 2018 following the offence.

It is difficult to know how much weight should be given to Dr Clout's report and her opinions. Dr Clout's opinions are largely based upon self-reported symptomology by the offender Mr Bartley. I am satisfied that significant aspects of the version of events provided by Mr Bartley are not true.

This casts doubt upon the opinions expressed by Dr Clout. For example, when asked by the offender's lawyers to express an opinion in her report concerning whether any condition suffered by the offender would explain his offending to any extent, Dr Clout referred to the offender's reported belief that his mother and brother were in danger. I do not accept that to be the case.

Dr Clout also referred to the offender's asserted belief that his brother was in danger as providing a likely explanation for him attending his mother's house on

19 August 2018. For the reasons I have given, I do not accept that that was the case. These were clearly statements designed to minimise responsibility.

I am willing to accept that the offender's childhood was generally marked by exposure to abuse and neglect. This is consistent with what appears to be the accepted evidence that Ms Bartley was a person who abused illicit drugs and had been involved in abusive relationships. I am therefore prepared to accept that the offender, Mr Bartley, probably had a pre-existing condition of PTSD. The extent to which that condition operated on him on 19 August 2018 at the time of these offences is difficult to assess. I accept the opinion of Dr Clout that there is an association between PTSD and aggression.

There is also a significant link between witnessing violence during developmental years and later aggressive behaviours. On balance, I accept that the offender's early development was such as to pre-dispose him to violence in dealing with conflict. The extent to which steroid abuse may have influenced the offender at the time of these offences simply cannot be known as this information was apparently not given to

Dr Clout.

The fact that Dr Clout was unaware of the offender's steroid abuse and was provided with incorrect information by the offender, acts to obscure the suggested link between the offender's PTSD and the present offences. There is no evidence that the offender was unable to control his actions on 19 August 2018. The most that can be said is that he had a predisposition to addressing conflict by violence resulting in a reduced capacity to control his anger. I have taken this into account in assessing his moral culpability for these offences, but I am not satisfied that his condition of PTSD significantly reduces that culpability.

A letter from Chelsea Dickins, a chiropractor at the Canberra Spine Centre, was tendered in support of the proposition that the offender has experienced back pain and is likely to continue to experience back pain in the future. This was not the subject of any challenge.

A letter from Lesa Reed, the mother of Tenisha Reed, speaks of Mr Bartley's dysfunctional family background and his development over the last nine years. She speaks of his ability to work hard and his strong values. She refers to him as a tremendous support to her daughter and having had a positive and steady influence on her. She describes them as a mature, responsible and hard-working young couple who spend most of their spare time with each other. She speaks of the current offences being out of character for the offender.

She is, naturally, concerned about how her daughter will manage if the offender is to go to prison. She does not believe that her daughter will be able to earn sufficient money to continue to pay the mortgage. She says that she has spoken to the offender and he has expressed the view that he must accept responsibility for what he did. She considers that he is remorseful and has shown a desire to move past these offences in a constructive and successful manner.

In a letter dated 20 August 2019, Jessica Bartley, the cousin of the offender, said that she was both shocked and extremely upset to learn of these charges. She said that he is normally a responsible family-oriented man and this behaviour was very much out of character. She described the offender as a highly valued member of the family, known for his loving and compassionate nature. She describes him as very hard working and states that he has overcome a lot of adversity to start his own business and buy a house with his partner. Despite the present offences, she considers him to be a responsible, rational and level-headed person. She said that the offender has expressed a lot of shame and guilt to her about this matter.

The offender's partner, Tenisha Reed, also provided a testimonial. She speaks of him overcoming a disadvantaged background to build a life for himself and his family. She speaks of the practical, emotional and financial assistance that he has provided to her and her family. She also speaks of his success in starting his own business and in buying a home.

The offender has told her how stressed he is at the prospect of being sent to prison, mainly because of the effect this will have on her and their future together. He is also worried about the effects that it will have on his business. She says that the offender has displayed extreme remorse and regret and he is deeply ashamed of his behaviour. She stated that the offender has now opened up to her about the events of his childhood and has started to see a psychologist. She believes that he can overcome the adversity of his childhood. She also provided a table of her monthly income and expenditure demonstrating that without the offender's income she will not be able to pay all of her regular expenses.

Tikarra Looke, a cousin of the offender's partner, provided a further testimonial. She has known him in the capacity of a close family friend for ten years. She describes him as a generous, kind-hearted, genuine and caring person. She also says that he is patient, attentive and caring towards his partner.

She has always admired the offender's work ethic and drive to provide financially for his family. She knows that he contributes to charities in the community. She was shocked by the present charges because such conduct is completely out of character for him. She states that the offender feels immense regret for what has occurred and is stressed and embarrassed about the present proceedings. Ms Looke also speaks of the financial and emotional difficulties her cousin will face if the offender is imprisoned.

I am satisfied that the offender became angry when advised by his brother that

Mr Greenslade-Palmer had assaulted their mother and damaged her property. He went to his mother's premises with the intention of assaulting Mr Greenslade-Palmer and did so. When Mr Guicci attempted to stop him, he has turned his aggression on Mr Guicci.

The offender has no prior convictions and no history of violence. I do not accept the Crown's submission that I should view his intervention in the incident involving the offender, Mr Deng, some years ago as evidence of prior violent behaviour.

As is clear from the testimonials provided on behalf of the offender, he has many positive and admirable qualities. His commitment to his brother through the trials of their childhood and his efforts to support his family through honest work, speak of a different character to that revealed in these offences. I am satisfied that he has demonstrated remorse for these offences albeit he has attempted to reduce his responsibility somewhat. The offender's prospects for rehabilitation are reasonable.

Mr Deng

I now turn to the case of the offender, Mr Deng. A Pre-Sentence Report dated

26 August 2019 was tendered at the sentence hearing. The offender is 25 years old, and was 23 years old at the time of the offences. He was due to turn 24 years old less than two weeks later. The offender has been known to ACT Corrective Services since February 2017 when he participated in a Pre-Sentence Report interview for an earlier offence of recklessly inflicting grievous bodily harm. He was subsequently sentenced to a term of imprisonment to be served by way of an Intensive Correction Order in

May 2017. His overall compliance with that Order was described as satisfactory.

Mr Deng was born in Sudan and is one of three children. He reported a difficult childhood mainly due to the war in Sudan and having a father who was abusive towards his mother. He migrated to Australia with his mother and siblings when he was

10 years old. He had no contact with his father but described the relationship with his mother and siblings in positive terms. He has been in a relationship with his current partner for two and a half years and he has no children.

He completed Year 12 and has subsequently held consistent employment. He has been employed in the flooring industry working as a contractor. He not only supports himself, but he also helps to support his sister and his mother. He has debts totalling approximately $62,000 which he is currently paying off.

The offender reported that he regularly engaged in binge drinking between the ages of 16 and 20 years old, but currently rarely consumes alcohol. He reported past cocaine and MDMA use but claimed to have been drug free since 2016. He completed alcohol and drug related programs during previous periods of supervision.

The offender reported that he had engaged with Headspace during a prior period of supervision. He reported experiencing some stress in relation to his current court matters and financial situation. He also reported suicidal ideation following these offences, but he had not attempted to act on these thoughts. He further reported attending a psychologist for an assessment but was yet to attend any regular sessions.

The offender reported that he had engaged with EveryMan to address his anger issues. He acknowledged that he had difficulty controlling his anger. He is currently on a waiting list for the next Violence Prevention Program at EveryMan.

The author of the Report noted that the offender agreed with the facts relating to the offences and appeared to take responsibility for his actions. The offender attributed his actions to a desire to protect his friend. He expressed a willingness to address his anger management issues and expressed some victim empathy and acknowledged the impact of his actions on the victims.

The author of the Report noted that the offender appears to have several protective factors in the community including a supportive family, stable employment, accommodation and an absence of substance use. His criminogenic factors appear to be related to his mental health, anger management issues, possible past trauma and financial difficulties. If he addresses those issues, his risk of reoffending will be reduced.

A psychological assessment report dated 16 August 2019 and prepared by

Dr Alison Christie, a clinical psychologist, was tendered on behalf of the offender.

Dr Christie, based upon the information provided to her, expressed the opinion that the offender is currently suffering from symptoms consistent with the diagnostic criteria for Major Depressive Disorder (recurrent episode, severe) and PTSD.

The offender identified the onset of the present episode of Major Depressive Disorder in September 2018, following his arrest for the current charges. Dr Christie was of the view that the offender's PTSD had affected him to varying degrees since childhood. The report sets out details of traumatic events said to have been experienced by the offender in the course of his childhood. The offender was born in Sudan and his mother left his father when he was about three years old and travelled to a number of African countries where they spent much of his early childhood living on the streets and in a refugee camp in Uganda.

They were sponsored to come to Australia when he was 10 years old, in 2003. At that time, he spoke no English. The offender told Dr Christie that he had regularly seen his father physically and sexually abuse his mother as a child. He was also exposed to non-family violence in Sudan and in the refugee camp. I accept that the offender's description of these events is generally true.

Dr Christie stated that the offender's trauma history and his PTSD symptoms may explain his responses during the present offences. When confronted with a situation associated with a traumatic event, she said, a person with PTSD can experience a reduction of executive function, that is, ability to think clearly and make good judgements, and high levels of arousal or dissociation. Anger and aggression are also common responses to this hyper-arousal experienced by those with PTSD, particularly men.

Dr Christie noted that repeated childhood trauma, such as that experienced by the offender, can cause the fear centre of the brain to be hypersensitive to perceived threats which can lead to the activation of the fight or flight response, and therefore hyperarousal, anger and a reduced ability to regulate behaviour. Dr Christie went on to express the opinion that it is possible that both the offender's worry about his mother's health and a subliminal association between his past trauma with his father and to the threat to the lives of his friends, particularly by an older male, contributed to his impulsive and aggressive response and his lack of control in the situation.

Dr Christie stated that the offender expressed significant guilt, shame and remorse for his offending behaviour. He told Dr Christie that up until the time that he saw the CCTV footage of the incident a few months after the events, he believed that he was acting to defend Mr Bartley. He said that when he saw the footage and realised that Mr Guicci had been trying to stop the fight, he felt shocked and confused. He expressed regret for the injuries he had inflicted on Mr Guicci and was ashamed by his actions. He blamed himself for Mr Guicci's injuries as he felt the situation worsened when joined in.

In her report, Dr Christie responded to a number of questions posed by the lawyers who retained her to provide a report on behalf of the offender. Dr Christie referred to the offender's statement to her that he had assumed that Mr Guicci was the guilty party before attacking him. He stated that once the fight had started, he acted as if on “autopilot” and the level of aggression was beyond anything required to defend his friends.

Dr Christie went on to say that the offender's trauma history and PTSD symptoms may explain his inability to adequately judge the situation and his aggressive behaviour in the situation. She also said that it was possible that his level of worry about his mother's health and the subliminal association between his past trauma inflicted by his father and the threat to the lives of his friends, particularly by an older male, contributed to his impulsivity, aggression and lack of control.

In response to another question from the offender's lawyers, Dr Christie stated that it is possible that the offender's past traumatic experiences of domestic violence directed at his mother, along with his role of provider and protector in his family, may have influenced his protectiveness of Mr Bartley. She considered it likely that his actions had been influenced by his protectiveness of Mr Bartley to whom he felt indebted since

Mr Bartley came to his aid in the earlier incident.

Dr Christie believed that the offender would benefit from individual psychological therapy designed to address his experiences of childhood trauma as well as his

Major Depressive Disorder. Given his severe levels of risk to suicide, treatment and support for suicide prevention should be a major priority. Dr Christie was unaware whether trauma-focused therapy is available at the Alexander Maconochie Centre (AMC), but noted that such interventions are not recommended in a custodial setting.

She believed that his risk of reoffending would be low if he engaged in treatment for PTSD. In response to a question from the offender's lawyers, whether any mental impairment or conditions may have affected the offender's moral culpability, Dr Christie stated that it is possible that the offender's PTSD and cognitive load associated with worry about the deterioration in his mother's health contributed to his actions in reducing his moral culpability. She said that the PTSD may have impaired his judgement, his ability to make calm and rational choices and to think clearly, and reduced his ability to regulate his behaviour. She noted that the offender stated that he assumed his friend was the victim in the situation which is consistent with the hypervigilance and over-estimation of threat affecting those with PTSD.

She believed that the offender is likely to find a sentence of full-time imprisonment more difficult than someone without the conditions from which he suffers. His current symptoms are likely to impair his ability to cope with the challenges and limitations of a custodial environment and he is likely to be more adversely affected by the environmental restrictions, isolation and stigmatisation of prison than others without this condition.

Dr Christie stated that she believed the added worry and stress associated with his inability to fulfil the role of supporter and carer for his mother and wider family would further impact negatively on his depression, seriously increasing his risk of harm to self and suicide. She recommended that if he was to be given a sentence of full-time imprisonment, that he be assessed by the forensic mental health team on entry. A further letter from Dr Christie dated 9 October 2019 states that the offender has attended three weekly appointments at Lantern Psychology, Deakin, ACT, to address his psychological issues.

It is again difficult to determine the weight to be given to the opinions expressed by

Dr Christie because some of the material upon which she based her opinions is, I am satisfied, factually incorrect. I do not accept the proposition that the offender became involved in this incident because he feared for the lives or even the wellbeing of his friends. I do accept the proposition that the offender believed that he was indebted to Mr Bartley for Mr Bartley's assistance when the offender was attacked some years ago.

I accept that this acted upon his mind when he became involved in this attack. I have already indicated that I accept that it is possible that the offender believed that there was a fight occurring between Mr Guicci and Mr Bartley when the offender first saw them together. But even before he became involved, it must have been apparent to him that Mr Bartley was acting as the aggressor and was distinctly advantaged in the altercation.

I simply do not accept the proposition that he was acting to defend Mr Bartley. I observed that Dr Christie, as with Dr Clout, was not provided with a copy of the CCTV footage to allow her to make her own observations. The fact that Dr Christie's opinions, particularly concerning the effect of his PTSD on the offender's mental functioning on 19 August 2018 and any consequent reduction in his moral culpability is based upon incorrect information, casts doubt upon the validity of her opinions.

I accept that the offender suffers from PTSD due to exposure of violence and other stressors in his childhood. I accept that it is possible that this condition may have negatively affected his judgement and his impulse control on 19 August 2018. I also accept that at the time of these offences, the offender was subject to stress in his family life which may also have negatively affected his judgement and impulse control. I do not accept, and nor has it been suggested by Dr Christie, that he was unable to control his actions. I accept that by reason of his PTSD, the offender found it more difficult to control his impulsivity and aggression than a person without such a condition. I take into account this fact in determining the objective seriousness of the offence, but in my opinion, it does not significantly reduce his moral culpability.

A report from Dr Leslaw Buczynski, a medical practitioner, dated 14 August 2019 provided information in relation to the health of the offender's mother. She apparently suffered a fall in June 2016 while working and injured mainly her left shoulder. Subsequent investigations revealed a tumour at cervical spine level, and she was referred to specialists for further evaluation and treatment.

She was seen by Dr Buczynski on 13 August 2019, having returned from Ethiopia the previous day. She complained of chronic pain related to her shoulder and symptoms related to the tumour in her cervical spine. She complained of right sided body weakness and shooting pain in the upper torso and the lower limbs affecting her function. She also complained of right sided tingling of her body, her balance was affected and she needed to use a walking stick and to be very careful so as to avoid a fall.

Her ability to attend to activities of daily living are significantly affected. Prior to

13 August 2019, the doctor had last seen the offender's mother in November 2018. According to a certificate which she produced to the doctor on 13 August 2019, the offender's mother had spent three months in hospital in Ethiopia. Her condition is serious because of the location of her tumour and her prognosis is guarded.

The doctor expressed the opinion that stress could exacerbate the offender's mother's condition and that she was showing signs of depression. He believed that she required a lot of assistance in her activities of daily living and she would not be able to look after herself without any assistance.

The offender's mother has executed an Enduring Power of Attorney appointing the offender as her attorney. This was done on 6 February 2019.

A number of testimonials were tendered on behalf of the offender. A letter dated

16 August 2019 from Ellen Arena-Mikac states that she has known him for approximately two and a half years. She is the godmother of the offender's partner,

Ms Warren. She speaks of the significant improvement of her goddaughter's life after he became involved and of his family values and determination to overcome his past. She describes him as polite, respectful and helpful.

She speaks of him being reticent in the past to speak about his childhood trauma as he found it too difficult to talk about. She believes that he is now open to the idea of seeking professional help. She also speaks of the difficulties which will be experienced by his partner and his mother should he go to prison. She worries about how his partner will cope in such an event. She also speaks of the remorse that he has expressed to her over this incident. She is aware of the 2016 conviction, but nevertheless does not believe that these events truly reflect his character.

An undated letter from the offender's older sister, Helen Deng, provides confirmation of the circumstances of the offender's childhood and speaks of her fears that the events of his childhood still haunt him. She describes the offender as kind-hearted and loving by nature, reliable, trustworthy and always putting others before himself. She says that he is very protective of their family. She speaks of the fatherly role that the offender plays in the life of her and her children, with her husband being absent in Ethiopia.

He provides financial support and helps with other practical support. She also refers to the support that he provides to their mother who is incapacitated because of the tumour. She states that their mother has recently deteriorated with unexplained bruising all over her body and vomiting blood. She has been hospitalised on occasion.

A letter dated 27 August 2019 from the offender's partner, Ms Warren, speaks of the remorse that the offender has exhibited over his conduct on this occasion. She is concerned about his mental health, stating that he has already made attempts on his life in the two and a half years since she has known him. She refers to the offender as the backbone of his family, financially, emotionally and, in his mother's case, physically. She states that the offender continues to live with his mother so as to provide her with assistance. He cooks, cleans and fixes things around the house, does her grocery shopping and other shopping and drives her around.

The offender apparently has not told his mother much about these proceedings because he is concerned that it will have a detrimental effect upon her. Ms Warren also speaks of the significant emotional support that the offender has provided to his sister and her children.

Ms Warren states that the offender has always been reluctant to talk about his childhood, but she was able to obtain some information from Ms Deng on that issue. It was only after she provided this information to the offender's lawyers that a recommendation was made that a psychological assessment be undertaken. It was during that psychological assessment that he spoke of what had occurred to him as a child for the first time.

Ms Warren states that she has ongoing mental health issues which commenced about the age of 14 years. Apart from her godmother, the offender is her only source of support. She describes the offender as a good person, loving, loyal and selfless.

A letter dated 16 August 2019 from Thomas Reaby stated the offender has worked as his contractor for two and a half years. He refers to the high standard of the offender's work and that he is a pleasant, respectful person to have on the job. He states that the offender has recently gone out on his own with the intention of being able to provide for his family working as a sole trader.

He refers to the offender as an extremely reliable and hardworking individual known for his kindness and loyalty. He describes the present offences as being very out of character for the offender. He says that the offender has expressed remorse for what happened on more than one occasion.

Finally, a letter from Stewart Marshall dated 22 August 2019 speaks highly of the offender as a flooring contractor. Mr Marshall was surprised when he found out about the present offences. He said that the offender was clearly embarrassed to have to tell him about these offences and was not proud of his conduct.

I am satisfied that the offender became involved in these offences out of a sense of misplaced loyalty to his friend, Mr Bartley. His actions convinced me that he arrived at the scene expecting violence. He has, unfortunately, a history of violence causing serious harm which disentitles him to leniency in sentencing for the present offences.

The offender undoubtedly has many admirable qualities, not the least of which, is his commitment to overcoming the hardships he has endured in his childhood. I have no doubt that he has the capacity to lead a law abiding and useful life. It is heartening that he has actively sought out assistance for his PTSD and is undertaking treatment. I accept that he has demonstrated remorse for participating in these offences.

I accept that the offender's PTSD contributed to his participation in these offences, but not in a directly causal manner. I am satisfied that the disorder negatively affected his judgement impulse control and that he had a reduced capacity to control his aggression. His prospects for rehabilitation are reasonable. The offender's history does, however, suggest that personal deterrence is a relevant sentencing consideration.

Mr McCauley

I will now turn to the case of the offender, Mr McCauley. Like his brother, this offender has no criminal record. A Pre-Sentence Report states that the offender is 21 years old. He would have been 20 years old at the time of these offences. He was described as cooperative and forthcoming with information in the preparation of the

Pre-Sentence Report. He confirmed the information given by his brother regarding the dysfunctional nature of his childhood, having been exposed to drug abuse and violence as a child.

His father gained custody of him when he was about 10 years old, and he describes his life after this as positive and prosocial. He has had limited contact with his mother since the day of the offences and has no intention of reconnecting with her. He shares a close relationship with his step-brother, father and grandparents. He is currently in a relationship which commenced in mid-2019 and has no children.

He completed Year 10 education in the ACT and commenced an apprenticeship which he did not complete due to becoming a sole trader laying floors in late 2018. More recently he has started secondary employment as a delivery driver.

He reported no drug use and that he rarely consumes alcohol. He is involved in playing touch football and regularly attends the gym. He reported that he was of good general health and mental health. He accepted blame for his actions and responsibility for his impulsive behaviour. He was assessed as a low risk of general offending.

A reference dated 21 August 2019 from Jarrad Drennan, the fiancé of the offender's cousin, speaks of his shock when he learned about the present offences. He described the offender's conduct on this occasion as completely out of character.

He described the offender as a kind-hearted and good-natured person, and

mild-mannered. He speaks of the offender's commitment to touch football which he has played at a state and national level. He also speaks of the offender's work ethic.

Mr Drennan stated that the offender has been stressed and anxious since the offences and has expressed a lot of shame and guilt. The offender also blames himself for calling for help in the first place and getting the others involved. He has expressed remorse for his victims.

A further reference dated 21 August 2019 was provided by Kobi Herring who has played with and coached the offender in touch football for the last three years. He knows him to be an impressive young man of great aspirations and commendable character. He was surprised by the charges because he believed the conduct involved was inconsistent with the offender's character. Mr Herring refers to the offender as someone who is committed to his sport both on and off the field. The offender has demonstrated remorse regarding this incident and Mr Herring believes that he will not reoffend.

The offender has been a volunteer at various motor sport events and a reference was provided by Chris Lenihan who supervised him in Motorsport Fire and Rescue for the last two years at motorsport events. He was surprised by the present charges as these events are out of character for the offender. Mr Lenihan said that when he spoke to the offender about these offences, it was obvious that the offender was embarrassed and he expressed a lot of remorse and appeared genuinely ashamed of his actions.

Mr Lenihan does not consider the offender to be a violent or impulsive person despite these offences.

A further reference from Ms Reed, Mr Bartley's partner, dated 9 October 2019 was tendered on behalf of the offender. She was present at the time of the offences and was later personally charged with an offence of affray. She stated that the conduct of the offender on 19 August 2018 was out of character. She described him as being very respectful and with a kind and very gentle nature.

She confirmed his commitment to sporting activities. He has also demonstrated commitment to his family. She referred to the offender's unsettled childhood largely brought about by his mother's drug use and mental health issues. The hardship shared by the offender and his brother has resulted in a strong bond between them. She describes the offender as a hard worker committed to his family and also to sporting and work endeavours. She states that the offender has been stressed by the offences and the court proceedings. He has also recently suffered health issues resulting in hospitalisation for three weeks and requiring surgery. As a result, he lost his employment.

Finally, a reference from Noel Bartley, the offender's grandfather, states that the offender's childhood placed him in many vulnerable situations both physically and emotionally where he witnessed episodes of domestic and sexual violence against his mother. The offender has expressed remorse to Noel Bartley over his participation in these events. Noel Bartley is concerned that a term of imprisonment will have a negative impact on the offender's efforts to rise above the difficulties of his childhood.

The offender was still quite a young man at the time of these offences and had no previous convictions. I am satisfied that his involvement in these offences was situational, arising out of the assault on his mother and perhaps damage to her property resulting in her being distressed. I am satisfied that he is not ordinarily a violent or aggressive person. His prospects for rehabilitation are good. There is no evidence of any prior personal animosity between the offender and the victims.

Further consideration

The offenders, Mr Bartley and Mr McCauley may have held a grudge against

Mr Greenslade-Palmer because of his prior treatment of their mother, but the same cannot be said of the other victims. It appears to be claimed that Mr Greenslade-Palmer damaged the property of Ms Bartley on 19 August 2018 as well as kicking her. There is evidence that Ms Bartley was visibly upset by what had happened between herself and Mr Greenslade-Palmer on 19 August 2018.

It is probable that Mr McCauley became aware that his mother was upset perhaps because she called him. It is then probable that Mr McCauley called his brother and

Mr Deng to inform them what had happened. The offender, Mr Bartley, became angry and drove to his mother's house with the intention of assaulting Mr Greenslade-Palmer and did so. The victims, Mr Guicci and Mr Tonna were assaulted because they attempted to stop Mr Bartley assaulting Mr Greenslade-Palmer. Mr Deng became involved due to his misplaced sense of loyalty to Mr Bartley.

I consider the offender, Mr Bartley, to be the most culpable of the offenders. He initiated the attack on Mr Greenslade-Palmer and on Mr Guicci. The others joined in to support him. The offender, Mr Deng's, culpability is only slightly less than that of Mr Bartley. Whilst the offender, Mr McCauley, was not as physically involved in this attack, he acted as a facilitator trying to stop other occupants of Mr Guicci's house from intervening to stop the attacks on Mr Guicci and Mr Greenslade-Palmer, and assaulting those who attempted to do so.

It is, of course, an aggravating feature with respect to the offences committed on

Mr Guicci that they occurred at his own residence, a place where he was entitled to feel safe. The offences occurred in daylight in a place visible to the public. They also occurred over a period of a minute or so. I would assess the offences against Mr Guicci as slightly above the mid-range and the remainder of the offences as at the mid-range. I am satisfied that there was a degree of pre-meditation on the part of each of the offenders.

Counsel for the offenders submitted that their pleas should be treated as having been entered at the earliest opportunity because they were entered after negotiations at the Criminal Case Conference. I do not accept that submission. The offenders have the benefit of pleading to the negotiated charges and the fact is that the pleas were not entered until a trial date had been set. I accept their pleas, nevertheless, had significant utilitarian value and I will reduce by approximately 15 per cent the otherwise appropriate sentences to reflect their pleas.

I accept that by reason of their PTSD, both Mr Bartley and Mr Deng will find imprisonment more difficult than someone without such a disorder. That does not mean that sentences of imprisonment cannot or should not be imposed. It is simply one factor to be taken into account in determining the sentences to be imposed.

I accept that the imposition of immediate terms of imprisonment is likely to have a significant detrimental effect on the financial position of the offenders, particularly

Mr Bartley and Mr Deng. This is the unfortunate consequence for many people convicted of serious offences and does not justify the imposition of a sentence that does not adequately reflect the objective gravity of the offending.

I also accept that the imposition of terms of immediate imprisonment will cause hardship to third parties, in particular, the offenders' partners and Mr Deng's mother and sister. This again is a common consequence of the imposition of a term of imprisonment. Hardship to others is almost inevitable in such cases. The offender,

Mr Deng's mother has her other son to assist her as well as the offender's partner. The hardship to be suffered by third parties in this case is not so exceptional as to warrant a change in the nature of the appropriate disposition.

There are, in my opinion, cogent reasons to distinguish between the offenders,

Mr Bartley and Mr Deng on the one hand, and Mr McCauley on the other, in sentencing for these offences. Mr McCauley's relative youth and lesser role justifies shorter sentences than those appropriate for his co-offenders and also the immediate suspension of those sentences. While the offender, Mr Bartley's moral responsibility for these offences is greater than that of Mr Deng, the offender, Mr Deng, has a history of violence which, in my view, balances that out. Having considered all alternatives available, I am satisfied that the seriousness of these offences and a need to deter the commission of offences of serious violence calls for terms of imprisonment with regard to the offenders, Mr Bartley and Mr Deng, at least some of which must be served by way of full-time imprisonment.

Sentence

Mr Bartley

Mr Bartley, for the offence of recklessly inflicting grievous bodily harm on Mr Guicci (SCCAN 2019/3755), you are convicted and sentenced to two years and six months' imprisonment, which I have reduced from three years in order to reflect your plea of guilty. In order to reflect the period of one day which you spent in presentence custody, the commencement date for that sentence will be yesterday, 3 December 2019. That sentence will expire on 2 June 2022.

For the offence of recklessly causing grievous bodily harm to Mr Tonna

(SCCAN 2019/3756), you are convicted and sentenced to two years and one month’s imprisonment, commencing on 3 February 2021 and expiring on 2 March 2023. I have reduced this from two years and six months' imprisonment because of your plea of guilty.

For the offence of assault occasioning actual bodily harm to Mr Greenslade-Palmer (SCANN 2019/36), you are convicted and sentenced to six months' imprisonment, commencing on 3 December 2019 and expiring on 2 June 2020. I have reduced this from eight months' imprisonment because of your plea of guilty.

The aggregate sentence which I have imposed is therefore one of three years and

three months' imprisonment, commencing on 3 December 2019 and expiring on

2 March 2023. I order that 12 months of that sentence be served by way of

full-time imprisonment, commencing on 3 December 2019 and expiring on

2 December 2020.

The balance of the sentence is to be suspended. There will be a

Good Behaviour Order for a period of three years from 2 December 2020, requiring you to accept the following conditions:

(a)the supervision of the Director-General or that person's delegate for that period of three years or such lesser period as deemed appropriate by your supervising officer; and
(b)to obey all reasonable directions of each such person, particularly regarding assessment for and participation in appropriate counselling or treatment for mental health issues and anger management.

Mr Deng

Mr Deng, for the offence of recklessly inflicting grievous bodily harm on Mr Guicci (SCCAN 2019/3753), you are convicted and sentenced to two years and

six months' imprisonment, reduced from three years' imprisonment to reflect your plea of guilty. That sentence will commence today, 4 December 2019 and expire on

3 June 2022.

For the offence of recklessly inflicting grievous bodily harm on Mr Tonna

(SCCAN 2019/3754), you are convicted and sentenced to two years and

one month’s imprisonment, commencing on 4 February 2021 and expiring on

3 March 2023. I have reduced this from two years and six months' imprisonment because of your plea of guilty.

For the offence of assault occasioning actual bodily harm to Mr Greenslade-Palmer (SCANN 2019/34), you are convicted and sentenced to six months' imprisonment, commencing on 4 December 2019 and expiring on 3 June 2020. I have reduced this from eight months' imprisonment because of your plea of guilty.

The aggregate sentence which I have imposed is one of three years and

three months' imprisonment, commencing on 4 December 2019 and expiring on

3 March 2023.

I order that 12 months of that sentence be served by way of full-time imprisonment, commencing on 4 December 2019 and expiring on 3 December 2020. The balance of the sentence is to be suspended.

There will be a Good Behaviour Order for a period of three years from

3 December 2020, requiring you to accept the following conditions:

(a)supervision of the Director-General or that person's delegate for a period of three years or such lesser period as deemed appropriate by your supervising officer; and
(b)to obey all reasonable directions of each such person, particularly regarding assessment for and participation in counselling or treatment for mental health issues and anger management.

I direct that a copy of the report of Dr Christie accompany the warrant accompanying you to imprisonment in the AMC. I further direct that the warrant committing you to imprisonment be marked that you are to be treated as at risk until such time as a full Mental Health Assessment has been conducted at the AMC.

Mr McCauley

Mr McCauley, for the offence of recklessly inflicting grievous bodily harm on Mr Guicci (SCCAN 2019/3750), you are convicted and sentenced to one year and eight months' imprisonment, commencing on 4 December 2019 and expiring on 3 August 2021. I have reduced this from two years' imprisonment because of your plea of guilty.

For the offence of recklessly inflicting grievous bodily harm on Mr Tonna

(SCCAN 2019/3751), you are convicted and sentenced to 15 months' imprisonment, commencing on 4 November 2020 and expiring on 3 February 2022. I have reduced this from 18 months' imprisonment because of your plea of guilty.

For the offence of assault occasioning actual bodily harm on Mr Greenslade-Palmer (SCANN 2019/32), you are convicted and sentenced to three months' imprisonment, commencing on 4 December 2019 and expiring on 3 March 2020. I have reduced this from four months' imprisonment in order to reflect your plea of guilty.

The aggregate sentence which I have imposed is therefore one of two years and

three months' imprisonment, commencing on 4 December 2019 and expiring on

3 March 2022.

I order that the sentence be wholly suspended with a Good Behaviour Order for a period of three years from 4 December 2019 requiring you to accept the following conditions:

(a)supervision of the Director-General or that person's delegate; and
(b)obey all reasonable directions of each such person for that period of three years, or such lesser period as deemed appropriate by your supervising officer.

I certify that the preceding two-hundred and two [202] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

Date:

[2019] ACTSC 392

4 December 2019