R v Christian Alfred Wooley

[2019] NSWDC 474

District Court

New South Wales

Medium Neutral Citation:	R v Christian Alfred Wooley [2019] NSWDC 474
Hearing dates:	8 August 2019
Decision date:	06 September 2019
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [66]
Catchwords:	Causing grievous bodily harm with intent
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
Cases Cited:	R v De Simoni (1981) 147 CLR 383
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Christian Alfred Wooley (Offender)
Representation:	Counsel: T Pickering (Crown) P Little (Offender)   Solicitors: E Navea (ODPP) F Falcomata (RMG Law)
File Number(s):	17/32937
Publication restriction:	Nil

REMARKS ON SENTENCE

1. On 18 March 2019, the offender pleaded not guilty to two counts on an Indictment at the Moree District Court. The two counts were as follows:

Count 1 – On or about 16 January 2017, at Bingara, in the State of New South Wales, did cause grievous bodily harm to Stephen Clarke, with intent to cause grievous bodily harm.

The offence was pursuant to s 33(1)(b) of the Crimes Act 1900.

Count 2 – On or about 16 January 2017, at Bingara, in the State of New South Wales, did recklessly cause grievous bodily harm to Stephen Clarke.

This offence is pursuant to s 35(2) of the Crimes Act 1900. Count 2 was in the Alternative to Count 1.

2. On 28 March 2019, the jury delivered a verdict of guilty to Count 1 on the Indictment. The maximum penalty for an offence pursuant to s 33(1)(b) is 25 years imprisonment. There is a Standard Non-Parole Period proscribed of 7 years imprisonment.

3. The following facts may be derived fairly from the jury verdict.

4. At approximately 11.30pm on 16 January 2017, a confrontation took place between the offender and the victim, Stephen Clarke, at the intersection of Cunningham Street and Maitland Road in Bingara, New South Wales. That intersection was the main intersection within the small town of Bingara. The confrontation occurred because the victim had sent a message to the offender, with whom there had been a history of animosity. That animosity stemmed from their involvement with the same woman. The victim had demanded the offender come to the IGA park, adjacent to that intersection, to “work out their differences”, otherwise the victim would go around to the offender’s house and do so.

5. The offender arrived at the IGA park with his brother-in-law, Ernie Kilgour. The offender parked his car adjacent to the park on the eastern side of the intersection. The vehicle was an unregistered supercharged V6 Holden. The offender had been in the area for some time, not knowing that the victim had secreted himself in bushes next to a walkway along the eastern side of the IGA park.

6. A number of people who had been at a birthday party for the victim’s sister, Kylie Topp, earlier in the evening, approached the intersection along Cunningham Street on the western side. They were aware that the victim had earlier left his premises with a chainsaw. The offender at first thought that the victim was with that group of people. He was heard to yell out whilst in the intersection:

“Where the fuck are you? I’m going to kill you. You run your mouth and don’t back the fuck up.”

7. At least one of the persons, who were at a point adjacent to Byrnes Lane, to the west of the intersection, yelled to the offender that Stephen Clarke was not there with them and that he should go home.

8. The offender and Mr Kilgour made their way towards the offender’s car to leave, and as they did so, the offender observed Stephen Clarke in the bushes adjacent to the laneway. As Stephen Clarke emerged from the bushes, he activated the chainsaw and revved it up. The offender retreated onto the roadway and on the eastern side of the intersection, the two men confronted each other. There were varying accounts as to what happened in the intersection, however, it was clear that Stephen Clarke thrust the chainsaw in the direction of the accused a number of times.

9. Kylie Topp intervened and persuaded her brother to back away and to turn the chainsaw off. Stephen Clarke did so and then walked through the intersection, west along Cunningham Street towards their home.

10. The accused made his way towards his car with Mr Kilgour and said the following:

“It’s not over. Your chainsaw is no match for a car. Youse are all dead, it’s not over.”

The accused got into his vehicle with Mr Kilgour and, notwithstanding that his house was in an easterly direction and therefore going home would have involved him turning right from where he was parked on Cunningham Street, he revved the engine and the tyres screeched as he set off in a westerly direction, in the direction of the complainant and other witnesses who were nearby on the north-western corner of the intersection.

11. The vehicle crossed the intersection at speed and came very close to Kylie Topp and Rodney Seage, forcing Kylie Topp to push Rodney Seage out of its way and onto the ground, and for herself to dive out of the way.

12. The accused continued to drive west on the incorrect side of the road towards the victim, and the victim reacted by striking the vehicle with the chainsaw, before retreating to the northern kerb, standing near the brick wall of a building on Cunningham Street.

13. The vehicle continued to the west along Cunningham Street, towards Byrnes Lane, where it made a turn to the left and skidded whilst it did so. The vehicle came to a position opposite the brick wall on the northern side of Cunningham Street. The offender then drove straight at the victim, who was standing on the footpath in front of the brick wall on the northern side of Cunningham Street. The vehicle, which was travelling at a speed of between 30 and 40 kilometres per hour, mounted the kerb and guttering and smashed into the victim, pinning him against the wall.

14. There was no issue at trial that the victim suffered really serious injuries which are outlined below. At the time of the offence the offender was disqualified from holding or obtaining a NSW driver’s licence.

15. The defence case at trial was that the vehicle was out of control as it went along its final path towards the point of impact, and the offender had little, if any, input into its direction of travel at that time. The offender’s case was that the offender lost control of the vehicle in the intersection of Maitland Road and Cunningham Street, and beyond that intersection, as he headed in a westerly direction, he accelerated to try to recorrect his error, and lost control of the vehicle. Instead of correcting the course of travel, the offender’s case was that that put him into a broad slide and the vehicle did a 180 degree turn and stalled in the middle of the road. At that point, the offender’s case was that Stephen Clarke approached the vehicle with his chainsaw going and swung it down and struck the bonnet of the car. The offender’s case was that he locked the car into either neutral or park and started the vehicle’s engine, turning the steering wheel all the way around, and “planted it”, meaning accelerated severely. The offender’s case was that as the vehicle turned around, it gained traction and then veered to the left and back to the right, and before he knew it he had mounted the footpath and hit the wall, and the victim was in between the wall and the car.

16. The offender’s case therefore was that he had neither the requisite intention to intentionally cause Stephen Clarke grievous bodily harm, nor did he have the specific intention so as to recklessly cause the victim grievous bodily harm. The offender’s case was that the vehicle he was driving was out of control immediately prior to the impact and the impact was not a direct result of an intentional path adopted by the driver of the vehicle, but occurred as a consequence of the loss of control and spinning of the vehicle.

17. It is clear from the jury verdict that the jury rejected that defence.

The sentence hearing

18. The sentence hearing took place on 8 August 2019. The Crown Sentence Summary became Ex A. It included a Certificate pursuant to s 166 of the Criminal Procedure Act 1986, which included four backup charges which were to be withdrawn following sentence (Sequences 1, 3, 4 and 10), together with the following related offences:

H122753501 - Sequence 2 – fail to stop and assist after vehicle impact causing GBH.

H122753501 – Sequence 5 – drive motor vehicle during disqualification period.

H122753501 – Sequence 6 – use unregistered registrable Class A motor vehicle on road.

H22753501 – Sequence 7 – have custody of an offensive implement in a public place

H122753501 – Sequence 8 – behave in an offensive manner in/near public place/school.

19. Exhibit A included the offender’s criminal antecedents which commenced in 2001 in the Childrens’ Court and involved numerous motor vehicle and break, enter and steal offences between 2001 and 2002. In 2004, the offender was convicted of two offences of possess prohibited drug, for which he was fined, and an offence of custody of knife in a public place, for which a fine was also imposed. There were further traffic offences involving using uninsured motor vehicle, being unlicensed and use unregistered registrable class A motor vehicle in 2006, for which fines were imposed. In 2008, he was convicted of an offence of drive on road whilst license suspended, which was dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999, (“CSPA”). There were no further offences recorded until 2014 when he was convicted of an offence of common assault and sentenced by way of a conviction pursuant to s 10A of the CSPA with no other penalty.

20. Exhibit A contained a Statement of Facts tendered by the Crown at the Moree Local Court on 5 September 2017 in the related matter of R v Ernest Kilgour, together with the co-offenders’ criminal antecedents.

21. Also included were a Statement of Agreed Facts in the matter of R v Stephen Clarke, who on 15 November 2017 was sentenced on a charge of use/possess or attempt/threaten to use offensive weapon etc with intent to commit indictable offence, arising out of the same incident. He was sentenced to a term of imprisonment of 2 years with a non-parole period of 12 months commencing on 10 January 2018. Mr Clarke’s criminal antecedents revealed one previous offence of behave in offensive manner in/near public place/school in 2016.

22. Exhibit A also included a Victim Impact Statement from Mr Clarke, which is referred to below.

23. Also included in Ex A was a Sentencing Assessment Report under the hand of Ms M Morgan dated 27 May 2019. The author reported that the offender had been previously employed as a chef and was confident of resuming work in the hospitality industry upon his release from custody. Under the heading “Attitudes”, the offender stated that he was fully aware that his license was disqualified and that his car was unregistered, and claimed that there was no intent behind the offences, and his actions were a result of being fearful for his life. A current Apprehended Violence Order protecting the victim of the offence was due to expire on 16 August 2019.

24. The author noted that the offender demonstrated some level of insight into the impact of his offending, not just on the victim but on the wider community. He expressed a willingness to address his criminogenic needs through interventions and was willing to engage in community service work. He was assessed as a low/medium risk of reoffending and was further assessed as suitable to undertake community service work.

The offender’s evidence

25. The offender tendered a report of Dr Emily Kwok, consultant clinical and forensic psychologist, dated 23 July 2019 (Ex 1). In that report, Dr Kwok set out the family history, education, employment, psycho-social and drug and alcohol history, together with the offender’s reported relationship history. He was one of two siblings and had a close relationship with his mother and grandmother, but not with his father. He moved out of home at 15 years of age and whilst studying year 11 and 12 at school, he completed a Certificate III in commercial cooking and began an apprenticeship as a chef which he completed in 2003. He thereafter had regular employment as a chef and at the time of the index offence was employed as a supervisor at an RSL club.

26. The author reported that the offender had a very active social lifestyle when growing up, however, he associated mainly with drug users from age 17 to 19. He commenced using marijuana at 17 and within a year was using methamphetamine intravenously and became addicted to that drug. He eventually overcame that addiction.

27. The offender gave the author a history of a number of broken relationships before he settled with his current fiancée, who was the subject of the dispute between the offender and Mr Clarke. She has three children from a previous relationship and together they have one child, a 16 month old daughter.

28. The author noted that the offender stated he had previously been charged with a number of offences when he was young, but had “no history of convictions”.

29. Under the heading “The offence”, the offender gave the author a detailed version of the events leading to the offending conduct. He acknowledged he was “a bit worked up” when he arrived at the intersection prior to the altercation with Mr Clarke. He also asserted that he lost control of the car as he was driving “out of a cul-de-sac” (which was clearly incorrect).

30. Under the heading “Attitude towards the offence”, the offender acknowledged the harm done to the victim. He told the author that he felt “really sorry” for Mr Clarke and his family and expressed that he would like to apologise.

31. The offender asserted that he never intended to hurt the victim, but on the night of the alleged offending he had probably “had enough of everyone trying to put it over me … and taking away what is mine”, referring to the relationship with his fiancée.

32. As a long term goal, the offender stated that he and his fiancée had discussed moving their family away from Bingara “to start fresh”.

33. Under the heading “Assessment of risk”, Dr Kwok stated that although the offender acknowledged his uncontrolled anger on the date of the offending, his behaviour was out of character for him. He accepted responsibility for his criminal conduct which occurred “out of poor judgment and lack of consequential thinking under severe stress and what appeared to be a situation where his safety was threatened”. Dr Kwok opined that anger management and emotional regulation were areas that the offender could benefit from counselling.

34. Dr Kwok noted that the offender did not describe ongoing animosity towards the victim. He was in a supportive relationship with his fiancée and had no problems associated with drug and alcohol use. He was assessed as being a low risk of reoffending.

35. The offender gave evidence that he had given Dr Kwok accurate details in respect of the history that she had recorded, as outlined above. He acknowledged that his criminal history, leaving aside Childrens’ Court matters, involved two convictions for possessing prohibited drugs and one conviction for possessing a knife. He was not cross-examined.

The Crown submissions

36. The Crown relied on a written outline of submissions which set out facts to be derived from the jury verdict, which are reflected in my summary of the facts above.

37. The Crown submitted that an aggravating circumstance here, pursuant to s 21A(2)(i), was that the offence was committed without regard to public safety. The Crown conceded that a mitigating circumstance was that the offence was not part of a planned or organised criminal activity, pursuant to s 21A(3)(b) of the CSPA. The Crown maintained that the offender went to the scene of the crime intending to physically harm the victim, and that he was in a rage prior to and during the confrontation, however, the Crown conceded the use of the vehicle as a weapon was essentially a spontaneous act that had not been planned by the offender.

38. The Crown conceded there was a degree of provocation pursuant to s 21A(3)(c) which involved the victim wielding a chainsaw at the offender within the intersection, and then subsequently striking the offender’s vehicle with it. The Crown further conceded that the offender does not have a significant criminal record of previous or like convictions.

39. The Crown submitted that the objective seriousness of the offence came within at least the mid-range of an offence pursuant to s 33(1)(b) of the Crimes Act 1900. It characterised the offending as representing a serious example of the offence.

40. With respect to the offender’s subjective circumstances, the Crown noted that both Dr Kwok and Ms Morgan, the author of the Sentencing Assessment Report, both assessed the offender as at a low, or low to medium risk of reoffending.

41. In his oral submissions, the Crown rehearsed the written submissions outlined above. The Crown, whilst conceding a degree of provocation, submitted that, notwithstanding that provocation, the offender had missed the opportunity to avoid offending when he first entered his car. He then had the option of travelling east and returning home, rather than revving the engine of the vehicle and driving in a westerly direction into the intersection and beyond. Once he was through the intersection, the offender had a further opportunity to avoid his offending conduct by continuing in a westerly direction, beyond the location of Mr Clarke, who had been walking towards his home.

42. The Crown noted that up until the sentence hearing the offender had spent a total of 233 days in custody. The Crown further submitted that each of the related offences on the s 166 Certificate could be dealt with pursuant to s 10A of the CSPA.

43. The Crown also noted that the injuries suffered by the victim here were serious, as confirmed in the expert’s certificate of Dr Karmakar, which had become Ex U at the trial. The victim had suffered an open comminuted tibia and fibular fracture of his right leg with a large open laceration involving his calf muscle. The fracture was operatively fixed with a plate and screws, and the wound was debrided to reduce contamination on 17 January 2017. The victim was then transferred to John Hunter Hospital for a skin graft to the injury to his calf.

The offender’s submissions

44. Counsel for the offender submitted that the time served by the offender of 233 days was sufficient punishment for this offence. It was submitted that the offending fell below the mid-range for an offence pursuant to s 33(1)(b) of the Crimes Act which countenanced a broad range of criminal conduct resulting in grievous bodily harm, for example, the loss of a limb or repeated stabbing offences.

45. Counsel highlighted the provocation involved here. He described both the offender and victim arriving at the scene with “hate in their hearts”. Further, the use by the victim of a chainsaw in attacking the offender was a particularly violent and vicious mode of attack. The victim had also been, prior to that attack, hiding or “skulking” in the undergrowth. Both parties were therefore at fault, and the threats made by the offender, as recorded above, that “he would kill” do not necessarily mean that he would take a life, but rather, that he would deal with the victim “seriously”.

46. Counsel submitted that to otherwise categorise such threats would be to offend against the rule in R v De Simoni (1981) 147 CLR 383, in sentencing here.

47. Counsel submitted that some leniency should be shown in sentencing here. The offender’s criminal history demonstrated that he was, “a pest, not a criminal”. Further, he had been assessed both by Dr Kwok and Ms Morgan as a low risk of reoffending.

48. Counsel for the offender submitted that there was a sole aggravating factor here, namely, that the offence took place without regard to public safety, but otherwise agreed with the mitigating factors conceded by the Crown, as outlined above.

44. In all of the circumstances, it was submitted that the offender should be sentenced to a custodial sentence involving the time served, and that the sentence could be structured so as to require him to be supervised for the balance of the term.

45. It was acknowledged that, in the light of the offender’s plea of not guilty, little weight could be put on the remorse expressed by the offender towards the victim as reported by Dr Kwok.

46. The offender agreed with the Crown submission that the related offences could be dealt with pursuant to s 10A of the CSPA.

Determination

52. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

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

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

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

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

(f) To denounce the conduct of the offender,

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

53. The objective seriousness of the offending here must be assessed against a very broad range of criminal conduct, countenanced by s 33(1)(b) of the Crimes Act 1900. Whilst it is clear that there was considerable provocation here involving the victim’s use of a chainsaw in the confrontation that took place, once the victim withdrew from that confrontation, the offender had ample opportunity to withdraw, and drive away from the conflict. Rather, he deliberately drove at speed towards the victim, causing a further conflict, and subsequently drove the vehicle in the manner described above so that it mounted the kerb and guttering and pinned the victim against the brick wall, causing him serious injuries. I accept the Crown’s submission that the objective seriousness of the offending fell within the mid-range of objective seriousness for an offence pursuant to s 33(1)(b) of the Crimes Act. It involved the offender taking the law into his own hands out of anger towards the victim, and deliberately driving a powerful motor vehicle in the manner outlined above so as to cause the victim serious injury.

54. There is no issue that an aggravating factor here was the offender’s complete disregard for public safety. The potential for more serious injury to the victim and serious injury to others present was high.

55. I take into account the maximum penalty of 25 years imprisonment, and the Standard Non-Parole Period proscribed of 7 years imprisonment as guideposts in the sentencing process.

56. I accept, as was conceded by the Crown, that the offender has no previous criminal history for like offences. I have discounted his history of Children’s Court offences for the purposes of sentencing here, and note that but for one offence in 2014, there was no recent offending on his record. I further accept the opinions of Dr Kwok and Ms Morgan that he is a low risk of reoffending.

57. I also accept that there was no planning involved in the offending, and the use of the motor vehicle in this way was spontaneous, as a mitigating factor pursuant to s 21A(3)(b) of the CSPA.

58. Both general deterrence and specific deterrence have a role to play in sentencing here. A clear message must be sent to like-minded members of the community that Parliament has proscribed lengthy maximum sentences for such offending, and the use of a motor vehicle in this way will be dealt with harshly by the courts in appropriate cases. Specific deterrence is also important in that the offender must understand that he is not entitled to take the law into his own hands in giving way to his anger in the manner in which he did towards the victim here.

59. I have taken into account the subjective matters set out in the report of Dr Kwok (Ex 1). The offender, who was born in 1985, is now 34 years of age and has been in stable employment since leaving school. He also is in a supportive relationship and has good prospects of returning to a productive role in the community.

60. The Victim Impact Statement of Mr Clarke sets out clearly the significant impact on his life, both physically and mentally, that has resulted from the injuries he received as a result of the offender’s criminal conduct. He states that after two and a half years, he still requires ongoing medical treatment and the assistance of his family on a regular basis. He is also receiving psychological treatment. He has been unable to re-engage in recreational activities and has also been unable to return to work since this incident. The victim has suffered, as a result, a significant financial loss. Although there is no medical evidence to assess the victim’s current status, it is clear that this incident has had a significant impact on his life. I therefore have taken the Victim Impact Statement into account, however, not to aggravate the moral culpability of the offender’s criminal conduct.

61. Section 54A(2) of the CSPA provides that the Standard Non-Parole Period represents the non-parole period for the offence, taking into account, “only the objective factors affecting the relative seriousness of that offence” when the offending is in the middle of the range of the seriousness for such an offence. In this case, I intend to set a non-parole period that is shorter than the Standard Non-Parole Period, notwithstanding that the objective seriousness of the offending here fell within the mid-range of objective seriousness for the offence. The reason for that is primarily based on the provocation involved in the offending which was conceded by the Crown to be a mitigating factor. The use by the victim of an active chainsaw, when confronting the offender, elevated the provocation to a fairly extreme level, given the potential for very significant injury involved. That is reflected in the custodial sentence imposed on the victim for his part in the confrontation. On a charge of use offensive weapon with intent to commit indictable offence, he was sentenced to a term of 2 years with a non-parole period of 12 months.

62. Whilst the offending here was borne out of a history of animosity between the offender and victim, and resulted from the victim summonsing the offender to the place of conflict, notwithstanding the high level of provocation, the offending still constitutes serious criminal conduct and I am satisfied that the threshold in s 5 of the CSPA is satisfied, and that having considered all possible alternatives, no penalty other than imprisonment is appropriate here.

63. It is not submitted by either the Crown or the offender that principles of parity should apply in the sentencing of the offender by way of comparison to the sentence imposed on either the victim or Mr Kilgour. Nor could such principles apply, as they were both charged with less serious charges, and the criminality of the conduct involved in those charges was significantly less serious than that of the offender.

64. Having regard to the objective seriousness of the offending, and taking into account the aggravating and mitigating factors outlined above, together with the subjective factors relied on by the offender, I intend to sentence the offender to a term of imprisonment of 5 years.

65. I find that there are special circumstances here pursuant to s 44(2) of the CSPA based on the fact that it is the offenders first serious offence and first time in custody, that he will require supervision in the community so as to return to a productive life and that he will require assistance to address his anger management issues. I therefore intend to vary the statutory ratio between head sentence and non-parole period and set a non-parole period of 3 years. The commencement of that sentence will however be backdated to take into account the 269 days he has spent in custody to date.

66. In respect of the related matters listed in the Certificate pursuant to s 166 of the Criminal Procedure Act, namely, Sequences 2, 5, 6, 7 and 8, in respect of each matter I intend to proceed pursuant to s 10A of the CSPA and convict the offender of each charge without imposing any further penalty.

Orders

67. I make the following orders:

1. You are convicted of Count 1 on the Indictment of causing grievous bodily harm with intent to cause grievous bodily harm pursuant to s 33(1)(b) of the Crimes Act 1900.

2. I sentence you to a non-parole period of 3 years commencing on 11 December 2018 and terminating on 10 December 2021.

3. The balance of term of sentence will be 2 years commencing on 11 December 2021 and terminating on 10 December 2023.

68. In respect of the related charges on the s 166 Certificate, I order as follows:

1. H122753501 – Sequence 2 – fail to stop and assist after vehicle impact causing grievous bodily harm – sentenced pursuant to s 10A to conviction without further penalty.

Disqualified from driving for a period of 3 years.

2. H122753501 – Sequence 5 – drive motor vehicle during disqualification period – first offence – sentenced pursuant to s 10A to conviction without further penalty.

Disqualified from driving for a period of 6 months

3. H122753501 – Sequence 6 – use unregistered registrable class A motor vehicle on road - sentenced pursuant to s 10A to conviction without further penalty.

4. H122753501 – Sequence 7 – have custody of an offensive implement in a public place - sentenced pursuant to s 10A to conviction without further penalty.

5. H122753501 – Sequence 8 – behave in an offensive manner in/or near public place/school - sentenced pursuant to s 10A to conviction without further penalty.

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Decision last updated: 09 September 2019