R v Crimmins

[2018] NSWDC 482

District Court

New South Wales

Medium Neutral Citation:	R v Crimmins [2018] NSWDC 482
Hearing dates:	18 October 2018
Date of orders:	18 October 2018
Decision date:	18 October 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	See [86]
Catchwords:	CRIMINAL LAW – sentencing – recklessly causing grievous bodily harm
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Suksa-Ngacharoen v R [2018] NSWCCA 142
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Maxwell Crimmins (Offender)
Representation:	Counsel: Mr J O’Sullivan (Offender)   Solicitors: ODPP (Crown) Legal Aid (Offender)
File Number(s):	2017/248533
Publication restriction:	None

Introduction

1. The offender appears before the Court today for sentence in respect of a charge of recklessly causing grievous bodily harm in contravention of s 35(2) of the Crimes Act. The charge has a maximum applicable penalty of 10 years imprisonment and a standard non-parole period of 4 years imprisonment. Those are the legislative guideposts which assist the Court in determining how to approach the sentence and the seriousness of the offending. In my view the seriousness of the offending is substantial and the injuries arising from the conduct of the offender have been catastrophic.

Procedural History

2. I note that the offending took place on 28 May 2017 and that the Offender, largely through his own conduct, was not arrested by the police until 15 August 2017. He was committed from sentence from the Wyong Local Court on 3 July 2018 and has spent no time in custody in respect of this matter. It is submitted that he is entitled to a discount on account of his guilty plea, which I will return to in a moment.

3. There are no matters on a Form 1 or a s 166 certificate that the Court needs to consider.

4. I note that there is a co-offender by the name of Rowan Ritchens who has a trial listed 18 March 2019 but for different offences, namely three counts of pervert the course of justice. So there is no need for the Court to embark upon a consideration of parity, particularly as Mr Ritchens has not yet faced trial and any sentence to be imposed if guilty is unknown.

Evidence on Sentence

5. The Crown relied upon the following material at the sentence hearing:

1. the Crown Bundle (Exhibit A);

2. Pre-Sentence Report authored by Jamie Rochford dated 12 September 2018 (Exhibit B); and

3. the Victim Impact Statement, written by Nathan Joyce and read by his mother in Court today (Exhibit C).

6. The Offender relied upon the Offender’s Bundle (Exhibit 1), comprising a report from a psychologist Clayton Rogers dated 15 October 2018, which I will come to in greater detail shortly.

7. Next is a letter addressed, “To Whom it May Concern” from Craig Miller, the plant manager of JBS Australia. It simply refers to the offender’s employment history and a number of favourable qualities. It makes no reference at all to the offending for which the offender is before the Court today.

8. The next document in Exhibit 1 is a letter from Brian Shaw, again addressed, “To Whom it May Concern.” The only suggestion that Mr Shaw had any insight into the nature of the offending committed by the offender is in the first paragraph where he stated:

“Max has explained the surroundings of the request for this reference and I am only too pleased to provide a truthful and sincere reference in this regard.”

9. Mr Shaw goes on predictably to make what can only be regarded as favourable remarks in relation to the character of the offender. As to what he was told as to the surrounding circumstances, it is not exposed on the face of the document and, therefore, the document itself attracts little, if any, weight.

10. The next document which forms part of Exhibit 1 is a letter from Rob Murdoch dated 17 July 2018, again, addressed, “To Whom it May Concern”. The only suggestion that he had any awareness of the proceedings is the statement, “I have heard the surroundings of the reason for this reference about Max and I’m happy to write this.” Again, it fails to make clear reference to the nature of the offending committed by the offender but predictably goes on to make favourable comments in relation to his character.

11. The next document forming part of Exhibit 1 is a letter again addressed, “To Whom it May Concern” from Michael Davoli dated 30 July 2018. That reference makes no referral to the reason for the reference being provided but, as you would expect, of a reference being relied upon by an offender in these circumstances, it speaks highly of his character.

12. The final document tendered as part of exhibit 1 is again a letter addressed, “To Whom it May Concern” from Robert Dixon, the Honorary President of the Lion’s Club of Aberdeen dated 8 October 2018 indicating that the Offender has provided assistance to the author and his wife as well as the club. There is no suggestion that the author has prepared this character reference with any knowledge of the offending committed by the offender for which he pleads guilty and for which he is to be sentenced.

13. Overall the quality of the character evidence is not substantial, however, I am mindful of the fact that prior to this offending the offender has not been convicted of any criminal offence and would, therefore, be entitled to a finding of prior good character. That is the evidence on the sentence hearing.

Agreed Facts

14. The Agreed Facts form part of Exhibit A and appear behind tab 2. They have been signed and therefore adopted by the offender. I intend to read the Agreed Facts onto the record in sufficient detail to permit an understanding of the finding I make about the objective seriousness of the offending. The Statement of Agreed Facts, which will be attached to my remarks on sentence at Appendix 1, reads as follows.

Background

15. The victim Nathan Joyce born 1 February 1994 has known the offender, born 23 November 1993 since high school. In around May 2016 the victim and another mutual friend, Rowan Ritchens, being the person who is referred to in the Crown’s summary as the co-offender, moved into a townhouse at 1/131 Wallarah Road, Gorokan. In September 2016 the victim started dating his current girlfriend Ashleigh Robinson, with whom he has maintained a relationship despite this offence and the many challenges it has presented. That is my observation, not the subject of an agreed fact.

16. She would often frequent the premises referred to and often stay overnight. Just before New Year’s Eve in 2016 the offender moved into the premises after breaking up with his girlfriend. It was not unusual for the victim and the offender to wrestle each other particularly when intoxicated. There was an understanding between them, however, that they would never throw a punch, particularly to the face.

17. The victim was a smoker. If he was upstairs at the premises he would smoke on the balcony adjoining his bedroom. If downstairs, he would sit on the front doorstep to smoke.

Events of 27-28 May 2017

18. On 27 May 2017 Jessica James, a friend of Ashleigh Robinson, held a party at her parents’ house in Lisarow. That afternoon Robinson gave the victim, the offender and Ritchens a lift to the Grange Hotel at Wyoming. She returned home and got ready for the party. Sometime later Robinson’s sister drove her to the Grange Hotel where they picked up the victim, the offender and Ritchens and drove to the party at around 7pm.

19. Ms Robinson did not feel well and only had two drinks at the party. Around 10pm to 10.30pm she noticed that the victim, the offender and Ritchens were getting “really drunk”. At some point during the party Ms James’ mother, Natalie, observed the victim, the offender and Ritchens acting inappropriately towards a female party guest. She warned the victim that if they could not behave they would have to leave the party.

20. The offender was standing behind the victim at this point and said to Natalie, “Who the fuck do you think you are?” At this point a neighbour and friend of the James family, David Fuda, became involved and began to yell at the victim and the offender. The offender said words to the effect of, “Come out the front and fight me” and “Come on cunts”. Other partygoers were telling the offender to leave but he refused and became more aggressive.

21. Ms Robinson escorted the victim out of the party and around to the front of the house. She then returned to the party to assist in getting the offender to leave. Mr Fuda and other guests then pushed the offender out of the party towards the front yard. The offender continued acting aggressively in trying to get back inside the party. Eventually he was ejected from the premises. Ms Robinson returned to the front area to find the victim who was upset and angry. The offender and the victim moved across the road from the house to a grassed area near the high school and began to argue and wrestle each other. The fight was broken up by Ritchens getting in between them.

22. At this point at about 11.10pm police attended the location. Senior Constable Cook spoke with the offender and the victim. He observed that both males appeared to be highly intoxicated. Robinson’s sister Mikaela had arrived by this point and told police she was going to drive them back to Gorokan. Robinson, the offender, Ritchens and the victim all left in Mikaela’s vehicle. The offender was still aggressive and saying words to the effect of, “Let’s go back there and bash every cunt at the party.”

23. Robinson told the offender to shut up or get out of the car. Mikaela stopped the vehicle near the McDonalds Restaurant at Lisarow. The victim, the offender and Ritchens got out of the vehicle. Robinson decided to go home with her sister and they drove away. At 11.31pm Robinson received a call from the victim asking if he could go back to her place. She said no and hung up the phone.

24. At 11.37pm the victim’s sister Victoria Joyce received a telephone call from him asking her to pick him up and “the boys” up near Lisarow Railway Station. At around 11.52pm Victoria picked them up in that vicinity. She saw that the victim was “fairly drunk” but was not slurring his words or stumbling. Ritchens was fairly quiet and sat in the car looking at his mobile phone. She also observed the offender to be “off his face” loud and swearing. The offender told Victoria that people were trying to hurt him and he had to fight them and he had gotten into fights at the party. During the trip Victoria heard the victim say that the offender had cost him his relationship with Robinson because of the way he had behaved at the party. About 5 minutes before arriving at the Wallarah Road premises referred to the offender began saying words to the effect of, “I could take you both on, I’ll show you how tough I am”.

25. The victim told the offender to “Stop talking shit” and “Just calm down. Victoria dropped the victim, the offender and Ritchens at the bottom of the driveway and saw them walking up the driveway together. She then drove home.

26. At 12.20am on 28 May 2017 the offender placed a call from his mobile phone to triple-0 during which he said the following:

“OFFENDER: Please please me and my friend just had an argument.

OPERATOR: Do you need police or ambulance?

OFFENDER: ‘1, fuck, 13 Wallarah Road, Gorokan. He’s unconscious as fuck.’

OPERATOR: Okay, what state, what town?

OFFENDER: I knocked him out.”

27. The call was then terminated a short time later. Although it is unclear it seems a probably inference that the call was terminated by reason of the actions of the offender, namely that he terminated the phone call to triple-0.

28. At around 12.35am CCTV footage from Wyong Hospital captured the offender’s white Holden Rodeo utility, the registration of which is referred to in the Agreed Facts, arriving at the front entrance of the hospital. The offender and Ritchens obtained a wheelchair from staff and then assisted the victim from the car and into the hospital. At 12.48am the offender sent an SMS message to Ashleigh Robinson which read, “Nathan’s in hospital and answer your phone!!!” Robinson telephoned the offender’s number and spoke with Ritchens who told her that the victim had been punched and was in the hospital.

29. At 1.05am police arrived at Wyong Hospital. Senior Constable Greentree spoke with the offender and Ritchens. She observed the offender was wearing dark coloured pants stained with what appeared to be blood and no shirt. He had blood on his upper body and hands and cuts to the top of both hands. Ritchens was wearing a dark shirt and jeans with what appeared to be blood on his hands and clothing.

30. Greentree asked the offender and Ritchens what had happened. The offender told her that they had been to a party and returned home when they were kicked out. He said he and Ritchens went inside while the victim stayed out the front to have a cigarette sitting on the fence. He said that a short time later he went outside and saw the victim lying on the driveway with blood coming out of his nose and a “guy” running down the road described as a “dark shadow in the shape of a person.”

31. At around 1.20am other police attended the Wallarah Road premises and established a crime scene. Sergeant Brennan observed several items of clothing at different locations on the driveway. He also saw blood on the grassed area next to the front fence and a small pool of blood in the middle of the driveway next to a dark coloured jumper.

32. At around 1.25pm detectives arrived at Wyong Hospital and spoke separately to the offender and Ritchens who both maintain the version given to Senior Constable Greentree. The offender told Detective Johnston that he saw a shadow running off in the distance towards Cornwall Avenue, Gorokan. Ritchens told Detective Johnston that, “Max saw someone running towards the servo(Shell)”. The offender and Ritchens consented to a crime scene examination at the Wallarah Road premises and arranged to attend the police station later that day to make statements.

33. Detective Johnston made arrangements to take photographs of the offender and Ritchens but before he could do so they both left the hospital. At 2.37am Detective Johnston attended the crime scene at the Wallarah Road premises. Sometime between 3.55am and 4.35am the offender, Ritchens and two other males attended the scene. Johnston noticed the offender and Ritchens had changed their clothes from what they were wearing earlier at the hospital. They said that they had showered and changed at a friend’s house.

34. At around 8am the following morning, Sunday, 28 May 2017, the offender had a conversation with a mutual friend, Josh Kellie, about what had happened to the victim. The offender told Kellie that he was upstairs and Ritchens was downstairs when they heard a commotion outside. He said that they went outside to check on the victim and found him on the driveway. He said he and Ritchens waited with the victim for 5 to 10 minutes for an ambulance, then decided to drive the victim to the hospital themselves.

35. Kellie went outside with the offender and Ritchens who both acted out possible scenarios as to how the victim could have been hit. Kellie saw that the offender was very anxious, shaking a lot and constantly smoking. Kellie observed the offender seemed “paranoid and nervous”. Later that morning Joe Livings, a workmate and friend of the offender, Ritchens and the victim, visited the Wallarah Road premises between 8.30am and 9.30am. The offender told Livings that they arrived home and the victim was on the phone arguing with his girlfriend (Robinson). He said that they left their keys inside so he and Ritchens then climbed over the side gate and played with the dogs in the backyard. He said they heard “arguing” out the front, went outside and saw the victim on the ground.

36. Livings had a conversation with the offender and Ritchens about providing statements to the police. He said:

“If the police are looking at you as suspects you might want to get your story right because they’re going to pick youse to pieces”.

37. The offender said that the police suspected them and wanted to seize their clothing. Ritchens then said, “We need to go upstairs and get our stories right before we go to the cop shop”. The offender and Ritchens then went upstairs for around an hour. When they returned Livings drove the offender to Wyong Police Station and Josh Kellie drove Ritchens.

Investigation – Offender’s First Statement

38. Later that day, being 28 May 2017, both the offender and Ritchens attended Wyong Police Station and provided statements to police. The offender stated that he, the victim, and Ritchens arrived home sometime between 12am and 1am and that the victim remained outside the front of the house to have a cigarette. He stated that he and Ritchens went through the side gate and inside the house via the back door and that they both went upstairs. He stated that a short time later he heard “raised voices” coming from the front of the house. He stated that he and Ritchens went outside and saw the victim lying on the driveway near the footpath and an amount of blood on the driveway. He stated that he telephoned triple-0 but terminated the call because he was “too drunk”. He stated that Ritchens then drove the victim to Wyong Hospital. In his statement Ritchens corroborated the offender’s version of events.

Investigation – Interview on 22 June 2017

39. On that date the offender and Ritchens attended Wyong Police Station at the request of police and participated in separate recorded interviews to clarify aspects of their police statements. In relation to those events at Jessica James’ party the offender told police, “This is where it gets a bit hazy at the party…I was pretty drunk…we finished all the alcohol.” That answer was in response to question 225.

40. He said that after being kicked out of the party, “Nathan had an argument with his missus (Robinson) about what happened at the party and stuff…he was…saying he’s just lost the missus over it” and that quotation is the answer to question 231 asked by the police. The offender gave the following version of events when they arrived home after being dropped off by Victoria Joyce:

“The front door was locked so me and Rodney went around the back, we thought he was going to stay out and have a smoke, thought he was gonna call Ashleigh so we gave him his privacy. We walked around, opened up the back door, walked inside, go upstairs, we’ve clicked the door and went upstairs, Rowan went to his room, I went into my room and then I heard Nathan yell, like I heard loud voices, I walked into Rowan’s room and I was like, ‘Can you hear that’, Rowan was already walking out and then he said, ‘Yeah,’ so we went downstairs, opened the door and Nathan was just laid out in a pool of blood. By this time I was in hysterics, went to call triple-0. They answered but I was in hysterics and I was drunk and not making any sense. Rowan just went, ‘Hang up, we’re going to drive him to hospital.’”

41. Those answers were provided in response to questions 266-280 in the record of interview.

Investigation – Listening Devices

42. On 8 June 2017 police obtained telecommunication intercept warrants for the mobile phone services used by the offender and Ritchens as well as a listening device warrant for the premises in Wallarah Road previously identified. On 25 June 2017 the following conversation was captured on the listening device inside the Wallarah Road premises. Ritchens stated:

“As long as we’re in agreement that we’re sticking to that story, yeah, that’s all that matters. “

43. Ritchens then further stated:

“They said to me on my thing that you - ‘Did Max leave your sight, did Max go back outside?’ Blah, blah, blah. I said, ‘Nup’.”

44. The offender replied, “Yeah.” Ritchens then responded, “As long as you stick to that story’.

45. On 26 June 2017 the following conversation between the offender was captured on the listening device inside the premises. Ritchens stated:

“If they look up the calls from that night I was on the phone to Liarna when you started punching on. That would be huge. I don’t think I said much though…they would be pretty big..they can get those calls. They knew what time the 911 call was made.”

46. The offender replied, “Yeah.” Ritchens then continued, “But did they hear the 911 call?” The offender replied, “The thing is to have your phone tapped.” Ritchens then replied, “They’d have to have some pretty huge evidence.” The offender then replied, “They can only use from then know what I mean.” Ritchens replied, “Yep.” The offender responded, “And it doesn’t mean that they can only see you’ve made an outgoing call, it only comes up, remember he said that, so just wait.” Ritchens then responded:

“But they might be thinking because I told them I don’t know, they might be thinking I was like, I told them I wasn’t seeing Liarna and he’s like does she know what’s going on, your girlfriend like does she know what’s going on and I’m like, yeah, she knows what happened to Nathan. I told her but I wasn’t talking to her.”

47. The offender replied, “That call was made when you were upstairs.” Ritchens responded by stating, “Hm-mm”. The offender then responded, “You know what I mean?” Ritchens then responded:

“Mm, yeah but they won’t be able to hear that call, they can hear the 911 triple-0 call but I don’t think you said anything on it. It was more just you going me, me”.

48. That is the end of the extract.

Arrest

49. At around 12.20pm on 15 August 2017 police attended the offender’s workplace at Scone. The offender was arrested and cautioned before being conveyed to Muswellbrook Police Station where he was introduced to the custody manager and made aware of his rights. The offender participated in a record of interview with police during which he indicated that he did not wish to clarify anything from his previous interview of 22 June. He declined to answer any further questions and was subsequently charged with the matter before the Court.

Injuries to Victim

50. The victim Nathan Joyce sustained a traumatic brain injury as a result of the incident on 28 May 2017. He was initially poorly responsive and sustained left frontotemporal acute subdural haemorrhage and associate intracerebral haemorrhage. He also sustained a fracture to the base of his skull involving the middle ear with right-sided hearing loss and right facial palsy related to nerve injury.

51. At Royal North Shore Hospital the victim underwent neurosurgery including resuscitative care, left decompressive craniotomy, evacuation of subdural haematoma and insertion of an external ventricular drain. When the victim recovered consciousness he showed agitation and disorientation and was incompletely orientated for a period of about 6 weeks. Slowing of his thought processes was documented. He suffered complications including pneumonia, septicaemia and right shoulder pain and impingement.

52. From 13 June 2017 the victim received inpatient rehabilitation care at the Royal Rehabilitation Centre at North Ryde. He has since undergone a cranioplasty to repair the skull defect. He has right hearing deficits and a guarded prognosis for recovery but remains under medical review. He has only recently returned to work.

53. Those are the facts as they have been agreed between the parties and signed by the offender. As mentioned previously following the facts in Exhibit A are a series of eight photographs showing the victim in various states. The first six at least appear to be in hospital and the photographs demonstrate that he was catastrophically injured. It is plain from the photographs that he was unconscious and intubated and in one of the photographs there is a bandage across his forehead from which was written “No bone” consistent with the need to remove part of the skull to evacuate the haemorrhage. The photographs demonstrate graphically what is in the medical evidence, that the offender caused the victim catastrophic injuries.

54. In further considering the seriousness of the offending I note that I have also been provided with a report from the Royal Rehabilitation Centre by Dr Clayton King, a rehabilitation specialist dated 29 August 2017. He sets out the nature of the injuries suffered by the victim as a result of the conduct of the offender. He refers to:

“Initially poorly responsive and sustained left frontotemporal acute subdural haemorrhage associated intracerebral haemorrhage, base of skull fracture involving the middle ear”.

55. The report also provides some insight into the treatment received by the victim. The diagnosis made by the specialist was one of traumatic brain injury with language impairments affecting predominantly expression, cognitive executive impairments affecting problem solving and planning, as well as hearing impairment.

56. In the ultimate paragraph of the report by Dr King he states:

“In summary Mr Joyce sustained life threatening injuries in May 2015 and, while making good recovery to this point, continues to experience adverse effects of these injuries including physical hearing, language and cognitive changes with further medical and rehabilitation interventions anticipated.”

57. I have also been provided with a report by Dr Stuart Browne dated 9 July 2018, in respect of an examination which he performed of the victim on 6 July 2018. It confirmed that the victim had returned to working as a plasterer full-time on a subcontracted basis, but was not working at heights. The main concern expressed was in relation to memory impairment and it is noted that he can be told, for example, at work that he has forgotten to do things. He uses lists to remind him of things to be attended to.

58. As at the time of the examination it is confirmed that he still lived with his family, namely his parents and sibling. There is also reference to other factors, such as headaches and the like from which the victim suffers as a consequence of the offender’s behaviour. I do not intend to read out all of the matters referred to by Dr Browne but I confirm that I have read the report in full.

59. There is also a report from an audiologist, a Ms Mendes, which followed an assessment of the victim on 21 September 2018 relating to his hearing. It is stated that, “Nathan has a total unilateral hearing and balance loss in the right ear as a result of a base skull fracture.” A number of tests were performed which confirmed the diagnosis previously referred to. The report ends with the final comments of the author which include, “Nathan meets audiological criteria for cochlear implantation in the right ear.”

60. I have also given very careful consideration to Exhibit C which was the victim impact statement read onto the record by the mother of the victim. Mrs Joyce was obviously emotional in delivering the statement before the Court. It provided great insight into the effects that the offending has had upon both the victim and his family. To go through the statement in any great detail may cause further upset and I simply note that I have read and had regard to its contents and the effects that have been suffered by the victim and his family as a result of the offending, the subject of this sentence.

Consideration of Objective Factors

61. It is necessary for the Court in determining an appropriate sentence to have regard to the objective seriousness of the offending. It was submitted on behalf of the Crown that the offending fell in the mid to high range and it was submitted on behalf of the offender that the objective seriousness was less than that. I prefer the submission of the Crown over that of the submission made on behalf of the offender and I find having regard to all of the circumstances of the offending, including the nature and the extent of the consequences of the harm suffered by the victim that the objective seriousness of the offending is in the mid to high range.

62. In terms of aggregating or mitigating factors which may operate pursuant to s21A of the Sentencing Act, I am mindful not to double count in respect of any matters which are listed thereunder but which form part of the elements of the offence to which the offender has pleaded guilty. Plainly the offence involved the use of actual violence, however, that is encompassed by the charge and accepted by the guilty plea and is, therefore, not an aggravating factor.

63. I am entitled, however, to have regard to the extent of emotional physical harm and the damage suffered by the victim as a result of the offending. Plainly inherent in the offence is grievous bodily harm, which includes injury and worse conditions but the extent of the harm suffered by this particular offender is such that it entitles the Court to have regard to the harm, the ongoing condition of the victim and the loss and damage which he has suffered as an aggravating factor in the sentencing exercise. I should stress that in doing so I have in no way double counted in respect of the offence charged.

64. As for mitigating factors to be established on the balance of probabilities, I accept that the offender does not have any criminal record and is therefore entitled to a finding that he was before this occasion a person of good character. I also find, and I will turn to the evidence in a moment, that the offender is unlikely to reoffend and has good prospects of rehabilitation. A finding of remorse was urged upon me by counsel for the offender which, for reasons I will give, I reject. The guilty plea is plainly a matter which operates as a mitigating factor and which will be reflected in the ultimate sentence by way of discount on the sentence to be imposed.

The Subjective Case

65. The offender’s subjective case is, prior to this offending, reasonably strong; that is, he had not previously been convicted of any criminal offences and, according to the references to the extent that they can be relied upon, he appears to have been a person of good character.

66. I have also had regard to a psychological report by Mr Rogers, part of Exhibit 1, which refers to the offender’s background and childhood, which involved severe physical abuse at times throughout his childhood causing the offender and his mother to flee the father. There is also mention of other conditions and circumstances in the second paragraph of the psychologist’s report, which bear upon the state of mind of the offender as at the time of the offending.

67. Whilst I have had regard to those matters and I accept that the offender suffered a challenging childhood and indeed adolescence, I do not consider his background to meet the definition of deprivation, such as to give rise to a reduction in his sentence or entitlement to leniency. Social deprivation, of course, when it exists may impact on the purposes for sentencing in various ways. This is not a case such as Bugmy v The Queen (2013) 249 CLR 571, where the offender’s background was so outrageously deprived that the sentencing exercise imported a degree of leniency so as to reduce the sentence. I accept that his childhood and adolescence were challenging and that is the finding I make.

68. The report by the psychologist also refers to a condition of PTSD, although is silent as to what event he is referring to as being the cause of the stress disorder. It was submitted by counsel for the offender that it is a reference to his childhood. That is not stated in the report by the psychologist regrettably and it is equally likely that it could be a reference to the trauma which has plainly be suffered by the offender as a result of the offending, the subject of this sentence.

69. The offender in fact gave evidence and in his evidence he appeared to be upset and expressed remorse. He told the Court that he is now 24 years of age and works as a butcher, having done so for 16 months. He was apparently originally charged with a much more serious offence, but later pleaded guilty to the current charge before the Court. He confirmed that he had no criminal history, he is engaged and lives with his mother.

70. He told the Court that in reference to the victim that he loved him like a brother. He was asked about the actual offending and he described a series of events which appear, according to his description, to have been initiated by the victim. He stated to the Court that the victim took off his shirt and punched the offender before the offender then punched the victim. It appears, although remains unclear, that he, that is the offender, then pushed or shoved the victim causing him to fall to the ground and suffer the skull fracture causing the traumatic brain injury, which I have described.

Remorse

71. My impression of his evidence in relation to that topic was that he was attempting to attribute at least part of the blame for what had occurred to the victim, which undermines any suggestion of remorse. Further, I am mindful of the procedural history in respect to this matter and the Agreed Facts. It is plain from the Agreed Facts that the offender lied to the police on every occasion upon which he spoke to the police about the event. It is plain that he terminated the “000” phone call and deprived the victim of the benefit of being attended to in situ by trained ambulance staff, instead driving him in a motor vehicle to a hospital.

72. It is also clear from those facts which have been agreed, that the offender and co-offender Mr Ritchens, colluded in order to present to the police a false story in order to exculpate the offender in relation to the subject offending. Whilst he has not been charged in respect of those matters, and it is not an uncharged event, which in any way aggravates the offending. It is, however, a sequence of events which reflects poorly upon the character of the offender in the period immediately after the offending. It cannot be said that the initial denial and exculpatory conduct was short lasting as the event having occurred on 28 May 2017 the offender was not arrested until 15 August 2017 and had several opportunities to be honest with the police about the offending and express remorse in respect of same.

73. I am mindful of the recent decision of the New South Wales Court of Criminal Appeal in Suksa-Ngacharoen v R [2018] NSWCCA 142, in which the Court stressed that it is important for the Court to carefully consider the question of remorse before making a favourable finding in that regard.

74. Section 21A(3)(i) of the Act also provides further insight into how purported remorse is to be approached by a sentencing judge. Whilst after pleading guilty and participating in the various reports for the purposes of the sentencing exercise and also in the course of giving evidence here today, the offender has demonstrated what prima facie might be regarded as remorse. However, in view of the circumstances surrounding the offending and in particular his conduct in the months after the offending and indeed up until the guilty plea, which was over a year after the offending was committed, I decline to find remorse in this particular case.

75. The offender, as I stated, was a person of good character. That is now not the case as a result of his offending. I do find, however, that he has good prospects for rehabilitation and the risks of reoffending are low.

Approach to Sentencing

General Principles

76. The approach to sentencing, of course, must incorporate the purposes for which a court may impose a sentence on an offender. They are as follows:

1. punishment. There is no doubt that the offender in this case must be adequately punished for his conduct;

2. deterrence. Whilst I believe the risk of reoffending is low and, therefore, the need for specific deterrence might be slight, there is no doubt that there is a need for general deterrence of this type of alcohol-fuelled behaviour resulting in catastrophic injuries. The sentence which I will impose will reflect the need for deterrence at that level;

3. protection of the community. Having seen the offender give evidence today and read the various documents relied upon I am not particularly concerned about any risk which he poses to the community in the future. However, it is a matter which the Court has regard to, of course, in determining sentence;

4. rehabilitation. There is no doubt that this offender requires assistance by way of counselling and medication. The sentence I will impose will incorporate a slightly longer than usual period on parole to permit the offender to take advantage of any services that may be available to facilitate his rehabilitation;

5. accountability is a matter which looms large in the sentencing process in this case given the conduct of the offender between 28 May 2017, when the offence occurred and 3 July 2018 when he pleaded guilty to the charge. His continual denial of any involvement and the concoction of the story with Mr Ritchens demonstrates that he was, at least at that time, not accepting that he was accountable for his actions. As I previously explained, I declined to find any remorse or contrition on his part. This has been taken into account in arriving at the appropriate sentence in order to ensure accountability.

6. denunciation, that is for the Court to denounce the conduct of the offender. I am satisfied that the sentence will do that; and

7. recognition, that is to recognise the harm done to, in this particular case, the victim who at a young age suffered a catastrophic brain injury which will affect him and those around him for the rest of his life.

Proportionality

77. I have also had regard to the principles of proportionality in determining the sentence. I find the sentence to be imposed neither exceeds nor is less than the gravity of the crime having regard to the objective circumstances as determined. There must be a reasonable proportionality between the sentence and the circumstances of the crime. The relevant importance of the objective facts and the subjective features, of course, vary and weight must be given to the objective circumstances as the Court engages in the process referred to as instinctive synthesis.

Imprisonment

78. Imprisonment is the obvious sentence outcome in this case, but before reaching that point the Court must be satisfied, having considered all possible alternatives, including non-custodial sentences, that no sentence other than imprisonment is appropriate. It was submitted on behalf of the Crown that the s5 threshold has been met. That was conceded by counsel for the offender. It was also conceded by counsel for the offender that a period of imprisonment was the appropriate sentence outcome.

Guilty Plea

79. Before pronouncing the sentence I note that I have taken into account the guilty plea in accordance with s22. I do note, however, that it came some considerable time after the offending occurred in circumstances where had the offender accepted responsibility a guilty plea would have been entered at an earlier time. I accept, as submitted, that there is a legal process to be followed and that may explain at least in part the delay in the guilty plea. It was, however, entered into the Local Court and I intend to apply a discount of 25% to reflect the utilitarian value of the guilty plea on sentence.

Special Circumstances

80. Counsel for the offender submitted the special circumstances arise by reason of two factors. One, that the offender would benefit from a longer than usual period on parole. In accordance with my previous remarks I accept that submission. Secondly, but not independently, that this will be the first time in custody for the offender. In light of those matters I intend to find special circumstances and to slightly adjust the statutory ratio between the period on parole and non-parole.

Consistency

81. Parties often refer to statistics in relation to sentencing trends. That has not occurred in this case. I have had regard to statistics nevertheless and I am satisfied that the sentence to be imposed on the offender in this case is consistent with sentences in like matters.

82. Of course offence covers a wide range of conduct with a wide range of possible outcomes. It is hard to imagine an outcome more severe than a catastrophic brain injury in the context of this particular offence, but I am satisfied that the sentence to be imposed is consistent with general sentencing trends.

The Sentence

Commencement Date – s47

83. As for the commencement date of any sentence, as the offender has served no time in custody to date, it is 18 October 2018, that is today.

Pronouncement of Conviction and Sentence

84. Would the Offender please stand?

85. Mr Crimmins, you are convicted of the offence of recklessly causing grievous bodily harm, being the charge to which you have pleaded guilty. I impose a period of imprisonment, a sentence consisting of a non-parole period of 4 years commencing 18 October 2018 and expiring 17 October 2022 at which time you will be eligible for parole. I impose a head sentence after a discount of 25% for guilty plea of 6 years commencing today and ending on 17 October 2024.

86. Accordingly I make the following orders:

1. the Offender is convicted of the offence of recklessly causing grievous bodily harm, pursuant to s35(2) of the Crimes Act;

2. I impose a non-parole period of 4 years, commencing 18 October 2018 and expiring 17 October 2022;

3. I impose a head sentence after discount of 6 years commencing 18 October 2018 and expiring 17 October 2024;

4. I find special circumstances.

Note – These ex-tempore remarks were revised without access to the court file.

Appendix 1: Crimmins Agreed Facts (166 KB, pdf)

Decision last updated: 05 March 2019