R v Christopher Michael Hunt

[2018] NSWDC 256

District Court

New South Wales

Medium Neutral Citation:	R v Christopher Michael Hunt [2018] NSWDC 256
Hearing dates:	13 July 2018
Decision date:	19 September 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence. For orders see [47]
Catchwords:	Recklessly inflict grievous bodily harm in company
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Anae v R [2018] NSW CCA 73 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Stevens v R [2017] NSWCCA 216
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Christopher Michael Hunt (Offender)
Representation:	Counsel: S Jaeger (Crown) M Fernando (Offender)   Solicitors:
File Number(s):	16/264647
Publication restriction:	Nil

REMARKS ON SENTENCE

1. The offender, who was born on 29 November 1982, is to be sentenced in respect of one count of recklessly inflict grievous bodily harm in company, pursuant to s 35(1) of the Crimes Act 1900. The maximum penalty for the offence is 14 years imprisonment and there is a Standard Non-Parole Period of 5 years imprisonment.

2. The offender was committed for trial on 5 May 2017, and entered a plea of guilty to the offence on 6 February 2018. The offence occurred on 31 August 2016, when the offender was subject to a s 9 bond to be of good behaviour for 6 months, imposed on 11 April 2016, in respect of an offence of goods in custody. The offender was arrested on 2 September 2016 and has been in custody in respect of this offence since that date.

The sentence hearing

3. The sentence hearing took place on 13 July 2018. The Crown Sentence Summary (Ex A) contained a Statement of Agreed Facts, which may be summarised as follows.

4. On 31 August 2016, the offender and his co-offender, Clement Sefo, went to the Matthew Talbot shelter at Woolloomooloo. The victim, Colin Mason, who was 51 years of age at the time of the offence, was sitting in the foyer area of the shelter on the ground level. The offender and his co-offender entered the shelter and walked over to the victim. The offender threw water on the victim, who then stood up. The offender said, ‘Where’s my girlfriend’s stuff?” and the victim replied, “I don't know”.

5. What occurred thereafter was caught on CCTV. The offender and the victim engaged in a conversation and a physical altercation started. During that altercation, both the offender and victim were throwing punches at each other, and the co-offender Sefo was walking around the two men watching the fight. Whilst the offender and the victim were fighting, the co-offender Sefo moved behind the victim, moved in quickly and swung two punches which connected with the rear right-hand side of the victim's head, causing him to fall to the floor unconscious. The back of the victim's head hit the floor. The offender Hunt then walked towards the victim, and kicked him as he lay on the floor with his right foot. The offender and his co-offender then immediately walked to the door of the premises and left the shelter.

6. The victim was rendered first aid and taken to St Vincent's Hospital and admitted into the intensive care unit, where he was found to have a subdural haematoma; a cerebral frontal contusion; and a non-displaced right posterior parietal bone fracture. He also suffered superficial facial cuts, abrasions and bruising.

7. The victim had suffered a brain injury which was complicated by a previous brain injury, which prolonged his hospital stay. He was discharged from St Vincent’s Hospital on 11 October 2016 with post-traumatic amnesia over a period of three weeks.

8. The victim has continued to suffer cognitive deficits in all areas, especially language.

9. The offender was arrested on 2 September 2016 and participated in an ERISP interview in which he made certain admissions.

10. The CCTV footage of the incident was played in open court (Ex B). It clearly shows a violent altercation between the offender and the victim, in which the victim appeared to be getting on top of the offender, at which point the co‑offender stepped in from behind the victim and king hit him to the side of the head on two occasions.

11. Exhibit A contained the criminal antecedents of the offender. In New South Wales they were extensive. They commenced in the Children's Court when the offender was 16, and involved offences of dishonesty, numerous offences of larceny, destroy or damage property, traffic offences, malicious damage, domestic violence, shoplifting, supplying prohibited drugs, possess prohibited drugs, larceny and goods suspected stolen, using offensive language, dishonestly obtain financial advantage by deception, possess prescribed restricted substances, and goods in custody, in respect of which, the offender was sentenced by way of a s 9 bond as referred to above.

12. In addition, the offender's criminal antecedents included offences committed in the Australian Capital Territory, both in the Children's Court and included as an adult, offences of robbery, attempted robbery, and theft and possession of prohibited drugs.

The offender’s evidence

13. The offender relied on a report of Dr Richard Furst, consultant forensic psychiatrist, dated 9 July 2018 (Ex 1). Dr Furst conducted an assessment by AVL on 8 June 2018 for approximately 60 minutes. Under the heading “Psychiatric History”, the offender described a dysfunctional upbringing in which he claimed to be abandoned by his parents, and was kicked out of home when he was 14 or 15 years of age, and sent to a refuge. Dr Furst took a history of the offender being sexually assaulted by his friend's father, which he did not disclose for many years. In his mid-to-late 20’s, the offender was in a relationship for seven years in which there were two children. That relationship ended after he relapsed into drug abuse. He had not seen his two sons since 2014.

14. The offender had used heroin from approximately 14–15 years of age. He eventually got clean in his early 20’s when he stopped using heroin, however, he started to use methylamphetamine instead. He was admitted to Odyssey House in 2001 for drug and alcohol rehabilitation and completed a program over a period of 10 months. He also participated in the Drug Court program in 2015. He left that program prematurely after two or three months. He had been in a stable relationship since 2015, however, his partner passed away in 2016 from an accidental overdose of heroin. Following that, the offender relapsed into using ice on a daily basis, felt suicidal and felt paranoid, and was eventually admitted to Cumberland Hospital.

15. In relation to the offending, the author noted that the offender alleged that the victim had stolen personal items from him, including items belonging to his deceased partner. He, however, acknowledged the wrongfulness of his actions, saying that he overreacted and that he regretted the offending, saying, “It’s this worst thing I've done in my life … so embarrassed. So remorseful”. The offender said he had no previous violence convictions and that he never intended to hurt the victim for whom he felt bad. He had only been discharged from Cumberland Hospital two days prior to the offence.

16. The offender was currently on a methadone program, however, his daily dose had been reduced from 150 mg to 10 mg daily. He was also being prescribed Avanza, an antidepressant.

17. Dr Furst opined that the offender met the criteria for the diagnosis of the following mental disorders:

• Acute Stress Disorder

• Persistent Depressive Disorder

• Social Anxiety Disorder

• Chronic Pain Disorder

• Substance Use Disorder

• Previous drug-induced psychosis

18. Dr Furst recommended a combination of psychological therapy and medication. He recommended the following treatment plan:

1. That the offender have stable accommodation, either through the Housing Department or temporary hostel accommodation.

2. He remains under the care of his general practitioner, Dr Tan, to coordinate his treatment pursuant to a Mental Health Care Plan.

3. He attends appointments with Dr Tan on a monthly basis.

4. He accepts medication from his treating doctor to include Avanza, methadone, Lyrica and Rabeprazole.

5. He accepts a referral to a clinical psychologist with a view to addressing past trauma and grief issues.

6. He accepts input from drug and alcohol counsellor with a focus on relapse prevention.

7. Consideration be given to the offender entering a drug and alcohol rehabilitation facility.

8. He engages in appropriate work and/or study options with the goal of improving his function over the long-term.

19. Dr Furst was of the opinion that the offender’s acute symptoms of anxiety and depression and his unresolved grief in relation to the death of his partner, mitigate against the seriousness of his actions.

20. Dr Furst opined that although the offender had a number of prior offences, they were mostly drug-related, and that he has not shown a propensity for violent conduct in the past, despite his addiction issues and interpersonal difficulties. The offender was likely to comply with treatment measures and would benefit from the health plan outlined above, which would reduce his risk of relapsing into abusing drugs and his risk of future offending.

21. The offender gave evidence in which he stated that he told Dr Furst the truth about the subjective matters referred to in his report. He no longer had hepatitis C, and his Lyrica medication had been stopped whilst he was in custody.

22. The offender gave evidence that he had been placed on remand at Kariong Correctional Centre, in protection, and that he would not return to the main jail system. There had been no courses available to him on remand, but he would like to do a TAFE course, as well as drug and alcohol rehabilitation. In the long term, he wanted to “clean up his act” and work with people as a counsellor for drug and alcohol addictions.

23. The offender gave evidence that he worked as a barber in jail, which kept him occupied and out of trouble. He had not used drugs and had decreased his methadone intake. He had also had five urine tests, all of which were clean.

24. When asked how he felt about the offence, he said that it was the worst thing that has happened to him. He regretted the offence and was embarrassed by it. He also felt bad in that he had dragged his mate into it, referring to his co‑offender. The offender stated that he overreacted in the circumstances and he never intended for the victim to get hurt. The offender said that he had issues at the time, and was in the middle of a breakdown emotionally, and had let his emotions get the better of him. Although he had entered a plea of not guilty when the matter was listed for trial, once the charge was changed, he had entered a plea of guilty.

25. In cross-examination, the offender conceded that whilst he had told the psychiatrist that he had no prior convictions for violence, that was not the truth. He did have convictions for violence which he had forgotten about. They occurred 19 years ago. When asked about the program he conducted at Odyssey House in 2001, the offender said he completed the program in nine months. However, he left the Drug Court Rehabilitation Program before it finished. He stated that he was sorry that the offence happened and that the victim was hurt. It was put to the offender that his past attempts to clean up his act had not been successful, however, he stated that it was important to keep trying.

The offender’s submissions

26. Counsel for the offender relied on a written outline of submissions. It was submitted that the objective seriousness of the offending should be assessed, having regard to the injuries. They included a head injury causing a subdural haematoma, cerebral-frontal contusion and non-displaced right posterior skull fracture, together with superficial facial cuts and abrasions and bruising, leaving the victim with a brain injury resulting in confusion amnesia. It was submitted that the extent of those injuries was towards the lower range of seriousness for an offence of this kind. It was further submitted that the degree of violence used was relevant, meaning the number of blows and the circumstances. The CCTV footage had shown that the entirety of the fight lasted a matter of about 35 seconds. Most of that time was taken up by the offender and the victim exchanging fairly feeble punches. It was only when the victim appeared to be gaining the upper hand, that the co-offender intervened with a substantial blow, causing the victim to fall. The offender had then kicked the victim once while he was on the ground. The height of the degree of violence was therefore a single substantial blow and the kick to an unconscious person.

27. It was submitted that there was no pre-meditation with respect to intention. The altercation had been preceded by about 30 seconds of conversation.

28. It was conceded that the co-offender's involvement, whilst brief, did not amount to a reasonable proportionate defence of another person.

29. An element of the offence was that the offender was in company with Mr Sefo, however, it was submitted that this fell at the lower end of seriousness for offences of this kind. Mr Sefo’s role was primarily passive and he only became involved, albeit excessively, when the offender was being dominated by the victim.

30. It was submitted that there were no aggravating factors but that the objective seriousness of the offence was mitigated by the fact that it was not part of a planned or organised criminal activity.

31. The offender submitted that although he was on conditional liberty at the time of the offence, that was a s 9 good behaviour bond for a minor offence, namely goods in custody.

32. In respect of the offender's criminal history, it was submitted that the record appears longer and therefore worse than it actually was. His offending was primarily dishonesty and drug-related, and his only serious offending was a robbery and attempted robbery in the ACT in January 2001. His history of violence was nominal, comprising one entry for common assault in 2003. A finding was therefore available that the offender does not have a significant record of previous convictions of a like nature.

33. Having regard to the nature of the circumstances in which the offending took place, it was submitted that the offender would be unlikely to reoffend for an offence of violence. Dr Furst had opined that the offender had insight into his emotional problems and other issues, and that he had successfully reduced his methadone dose. There should be some guarded optimism with respect to his prospects of rehabilitation.

34. It was submitted that it was noteworthy that the offender had been an inpatient in a psychiatric hospital for three weeks, and had been discharged just two days before the offence. That was relevant by way of reducing his moral culpability for the offending in accordance with DPP (Cth) v De La Rosa (2010) 79 NSWLR 1. It also made him an inappropriate vehicle for general deterrence and would reduce the significance of specific deterrence in the sentencing process. Further, a custodial sentence may weigh more heavily on the offender due to his mental illness.

35. In respect of the offender's plea of guilty, negotiations had taken place at the time of the committal, however, there was no Crown response to a proposal to a plea offer. In those circumstances, the offender was entitled to a 25% utilitarian discount on sentence. He had consistently expressed considerable remorse during his interview with the police and Dr Furst. The offender accepted that the s 5 threshold had been crossed, however, a finding of special circumstances was sought on the basis that this would be the offender's longest period of incarceration, he had limited support in the community, plus he had a history of psychological disorders and social disadvantage, culminating in homelessness, drug abuse and psychosis. Having regard to the fact that the offender had been in custody since 2 September 2016, it was submitted that a sentence would be imposed that would see his almost immediate release to parole.

36. In oral submissions, counsel for the offender distinguished the Court of Appeal decision in Anae v R [2018] NSWCCA 73. There were no compelling subjective features in that case. The circumstances of the assault were also different, as were the injuries suffered by the victim. Anae also had a more significant criminal history for offences of violence, which included offences against the police.

The Crown submissions

37. The Crown also relied on a written outline of submissions. The seriousness of the offending will depend significantly on the seriousness of the injury, but also the manner in which the injury was inflicted, the reason it was inflicted, and the surrounding circumstances, relying on Stevens v R [2017] NSWCCA 216 at [40] – [44]. Here, it was submitted that the offending was objectively serious, at the mid-range of objective seriousness for an offence pursuant to s 35(1) of the Crimes Act 1900. The victim had suffered a subdural haematoma, a cerebral-frontal contusion and a non-displaced right posterior parietal bone fracture. He was treated in the intensive care ward and his condition was complicated by a previous brain injury. The victim continued to show cognitive deficits. It was further submitted that general and specific deterrence are of paramount importance in denouncing this type of violent conduct.

38. In respect of the offender's subjective case, it was submitted that the offender's prospects of rehabilitation are guarded. He had not been successful in previous attempts to address his drug issues, and had prematurely left the Drug Court program in 2015. The Crown submitted that the offender also had a significant criminal history which disentitled him to leniency. He had some convictions for offences of violence, however, these were some time ago. Further, the offender was on a s 9 bond at the time of the offence.

39. In oral submissions, the Crown agreed that the offender was entitled to a utilitarian discount of 25% on sentence. His criminal antecedents did not aggravate the offending, however, it did not entitle him to leniency.

Determination

40. 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.”

41. I accept the Crown submission that the objective seriousness of the offending here was within the mid-range of objective seriousness for an offence pursuant to s 35(1) of the Crimes Act 1900. Whilst the offending took place over a short period of time, it involved a physical altercation brought on by the offender confronting the victim, and a fight ensuing. Whilst the victim was getting the better of the offender in that fist fight, the co-offender, from a position behind the victim, threw two punches, one of which landed on the side of the victim's head, causing him to fall to the ground and lose consciousness immediately, whereupon, the offender kicked him whilst he was lying unconscious on the ground. The victim suffered the serious brain injury referred to above, and has suffered serious sequelae to that brain injury, with cognitive impairment, which was complicated by a previous brain injury. The serious nature of those injuries, together with the conduct of the offender in confronting the victim, lead the offending to be assessed as within the mid‑range of objective seriousness for such an offence, but towards the bottom of that mid-range.

42. I accept that the offender had drug abuse issues and mental health issues, however, I do not accept that they lessen his moral culpability in the circumstances of this offending. Nor do they relate causally to the offending, rather, the offender was entirely responsible for the confrontation that took place with the victim, and the physical altercation that followed. It does not make him an inappropriate vehicle for general deterrence and specific deterrence in the sentencing process. Rather, a clear message must be sent to like-minded members of the community that this type of physical violence will not be condoned by the courts, that the Parliament has set heavy maximum penalties in respect of this offence, and the courts will impose lengthy periods of imprisonment by way of punishment. Nor do I find that the offender’s mental health issues will mean that a custodial sentence will lay more heavily on the offender.

41. I have taken into account that the offender was on conditional liberty at the time, namely, the subject of a s 9 bond to be of good behaviour. He is entitled to a 25% utilitarian discount on sentence, however, his criminal antecedents do not entitle him to any leniency in sentencing.

42. I am also not satisfied that the offender has good prospects of rehabilitation. Whilst he completed one rehabilitative course, he did not complete the Drug Court course in 2015, leaving a six-month course after eight weeks.

43. Nor am I satisfied that the offender has a low risk of recidivism, given his criminal antecedents. I am, however, prepared to find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act (“CSPA”) and vary the ratio of the head sentence to any non-parole period. I find special circumstances given the offender's ongoing drug issues, and his need for further rehabilitation, relapse prevention counselling, and anger management, together with his mental health issues and the need for ongoing rehabilitation to enable him to take his place in the community.

44. Having regard to all those factors, I am satisfied, pursuant to s 5 of the CSPA that, having considered all possible alternatives, no penalty other than imprisonment is appropriate. I intend to sentence the offender to a term imprisonment of 3 years and 9 months, with a non-parole period of 2 years and 6 months, commencing on 2 September 2016.

Orders

47. I make the following orders:

1. You are convicted of the offence of recklessly inflict grievous bodily harm in company, pursuant to s 35(1) of the Crimes Act 1900.

2. I sentence you to a non-parole period of 2 years and 6 months to commence on 2 September 2016, and to terminate on 1 March 2019.

3. The balance of the term will be 1 year and 3 months to commence on 2 March 2019 and to terminate on 1 June 2020.

48. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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Decision last updated: 19 September 2018