R v Downes

[2019] NSWDC 696

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Downes [2019] NSWDC 696
Hearing dates:	1 November 2019
Date of orders:	01 November 2019
Decision date:	01 November 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraph [47]
Catchwords:	CRIME — Public order offences — Affray CRIME — Violent offences — Assault occasioning actual bodily harm — Reckless wounding SENTENCING — Aggregate sentence of imprisonment SENTENCING — Aggravating factors — Use of weapon
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Muldrock v The Queen (2011) 244 CLR 120
Category:	Sentence
Parties:	Director of Public Prosecutions (DPP) Aaron David Downes (Offender)
Representation:	Counsel: D McMahon (Offender)   Solicitors: J McWhirter (DPP) J Marsh (Marsh Blom Lawyers) (Offender)
File Number(s):	2018/00386430

SENTENCE

1. HIS HONOUR: The offender pleaded guilty in the Local Court and adhered to those pleas before me to the following three offences. That on 15 December 2018 at Penrith he used unlawful violence towards Kaden Waters and Brendan Hardacre, and that such conduct would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. That is an offence of affray under s 93C of the Crimes Act and has a maximum penalty of ten years imprisonment. The second offence is that on the same date and place the offender assaulted Rebecca Crowley, thereby occasioning her actual bodily harm. That is an offence under s 59 of the Crimes Act and there is a maximum penalty of five years imprisonment. The third offence is that on the same date and place the offender recklessly wounded Jordan Clark. That is an offence under s 35(4) of the Crimes Act and has a maximum penalty of seven years imprisonment with a standard non-parole period of three years.

Agreed Facts

2. The facts are agreed, and the Crown also tendered before me certain CCTV footage of the incident. What follows is taken from the agreed facts. About 2pm on Saturday, 15 December, Mr Clark, Ms Tovaris and Jonathan and Brendan Hardacre were drinking at the Bavarian at Penrith. Later that afternoon they left and went to the Tattersalls Hotel in Penrith. They were joined by Mr Waters, and they stayed at the Tattersalls for the rest of the night. This offender and a co-offender, Mr Nicholas Stuth, and some other males had also been drinking at the Bavarian in their own group, and they went to the Tattersalls Hotel as well, although according to the agreed facts there had been no interaction between the two groups prior to arriving at the Tattersalls Hotel.

3. A little after 9pm, what is referred to as the victims' group, were inside the Tattersalls Hotel around the pool table, and this can clearly be seen in the CCTV footage. Prior to this, according to the agreed facts, there had been some interaction between the offender, the co-offender and the group of people they were with, with some of the males in what is referred to as, as I say, the victims' group. Tovaris had been texting Jonathan Hardacre and indicating that she was being harassed by some of the males in the offender's group. She asked Jonathan Hardacre to come over and put his arms around her.

4. As Mr Waters, Ms Tovaris and Jonathan Hardacre walked past the bar they encountered the offender's group. Mr Waters spoke to the offender briefly and then continued walking away with Ms Tovaris and Johnathon Hardacre. The offender and the co-offender and the other two males in their group left the Tattersalls Hotel through the bar exit doors. As the offender's group was walking up the street, they walked by the windows that looked into the pool room. This was where Mr Waters, Ms Tovaris and Jonathan Hardacre and the rest of their group were. One male from the offender's group raised his middle finger and directed it to Mr Waters and the rest of the group inside. Another male yelled "Come outside" and Mr Waters went outside through the exit door in the pool room, followed by Ms Tovaris and Jonathan Hardacre.

5. Mr Waters told the offender and his group to "Fuck off" and the offender and his group moved towards the door where Mr Waters and his group were still standing. There was some pushing and shoving between everyone, resulting in Ms Tovaris being pushed and the offender ripping Waters' singlet. A security guard was in between both groups at the time trying to separate them. The offender moved away from the group and walked down the street towards the entrance or exit that he previously used to leave the Tattersalls Hotel. Mr Waters, Ms Tovaris and Jonathan Hardacre walked back inside the pool room, and Waters took off his torn singlet and started to put on his T-shirt.

6. The offender then entered Tattersalls again from the entrance that leads into the bar area. He walked through the bar area and towards the pool room. Mr Waters and the rest of his group were still around the entrance door at the back of the pool room. The co-offender and the rest of his group were still on the street, or on the other side of the pool room entrance. As Mr Waters was still putting his T-shirt on, the offender entered from the other side of the pool room. He walked immediately towards Mr Waters and had his arms outstretched as he did so. As the offender reached where Mr Waters was, he immediately threw a punch towards his face. Mr Waters also struck back, throwing a punch towards the offender's face.

7. Mr Waters and Jonathan Hardacre both tackled the offender to the floor. Mr Brendon Hardacre threw his glass of beer towards the group on the floor. Brendan Hardacre was over the top of the group and threw punches at the offender who was still being held onto by Mr Waters and Jonathan Hardacre who also threw several punches at the offender. The co-offender and the other males in the group were still outside. Once the offender was tackled to the floor they all ran inside and the co-offender and his group pulled Mr Waters and both of the Hardacres away from the offender.

8. The co-offender shoved Brendan Hardacre in the face as another male pulled Brendan Hardacre back by his shirt collar. This resulted in Brendan Hardacre falling backwards and over a stool that had been knocked over. The male who pulled him back was still holding onto his shirt and gave a slight kick to his side as he was on the floor. The co-offender and the other male he was with grabbed the people on top of the offender and pulled them away. The co‑offender punched Mr Waters to the side of the head, resulting in him falling face down onto the floor.

9. No one was left on top of the offender who stood up and immediately punched Mr Waters to the head as he was laying on the floor. The co-offender also punched Waters at the same time as the offender. Brendan Hardacre stood up and looked for something on the floor. As he was looking down at the floor the offender walked over towards him and punched him with an uppercut to the face. The CCTV shows the force of that punch graphically. Brendan Hardacre fell down over the stool and the offender immediately stomped on his head.

10. Rebecca Crowley ran over to where Brendan Hardacre was lying on the ground. She said to the offender, "Stop stomping on his head", to which the offender yelled at her, "What cunt?". As this was occurring, Mr Waters got back to his feet but was still a bit dazed. He stumbled towards one of the pool tables where the offender grabbed him around his head and shoved him away. One of the other males from the offender's group immediately shoved Mr Waters who fell to the ground. As this happened, the offender turned to Ms Crowley and punched her to the left side of her face knocking the sunglasses off her head. The force of that punch can also graphically be seen in the CCTV footage.

11. Ms Crowley walked away grabbing her face in pain. After punching Ms Crowley in the face, the offender immediately turned and kicked Mr Waters in the head while he was still on the ground. Mr Waters got up immediately but was still crouched over and was shoved by the offender who also threw a punch at him which did not connect. At the same time the co-offender walked over to where Brendan Hardacre was lying on the ground and kicked him in the midriff area. The offender turned to Mr Clark, who had so far remained relatively uninvolved with the incident, and that can clearly be seen in the CCTV. The offender grabbed Mr Clark by the front of his shirt and shoved him to the wall. The offender punched Mr Clark to the left side of his face while he was up against the wall.

12. A male from the offender's group was trying to pull the offender away from Mr Clark and the security guard who was there. The offender moved across the room to one of the pool tables and picked up a pool cue. Mr Clark was several metres away and started to walk towards Waters and Brendan Hardacre. The offender held the pool cue up towards the security guard who put his hands up in defence. The offender turned towards Mr Clark who was walking away from him and towards Waters. The offender swung the pool cue with force, hitting Mr Clark in the face and breaking the pool cue into several pieces.

13. The co-offender tried to pull the offender away from Mr Clark. As he did this, the strike to the face caused a wound above Mr Clark's eyebrow, which started bleeding immediately. The offender was still holding a large part of the pool cue. He tried to break it over his leg but was unable to do so. The co‑offender had his arms around the offender and was pulling him towards the door. Security ushered both the offender and the co-offender and the other males out of the exit from the pool room.   

14. Mr Waters, Mr Clark, Ms Tovaris and the two Mr Hardacres, left the premises shortly after. They did not wait for an ambulance. As a result of the incident, Mr Clark sustained a wound above the right eyebrow that was approximately 5 centimetres in length, down to the subcutaneous fat layer. His right eyebrow was mildly swollen with a minor haemorrhage at the site. The wound was closed with five stitches and he was discharged from the Emergency Department that night.

15. Ms Crowley attended Nepean Hospital. Fortunately there were no broken bones and she sustained bruising and swelling to the left cheek. Mr Waters believed he was knocked out when assaulted, reported feeling dizzy when he woke up, and his head was throbbing. He had a cut to his right eyebrow and another just above it but it did not require medical intervention. John Hardacre had soreness to his ribs and elbow, and Brendan Hardacre, believed he too had been knocked out. He was bleeding from the mouth but did not require medical attention.

16. During the assault, the offender dropped his phone. This phone was picked up by Jonathan Hardacre who took it with him to the police station when his group reported the incident to police. At some point that night the phone rang and ultimately there was an agreement arrived at where the offender and the co-offender presented themselves to police at Penrith Police Station. The offender took part in the interview. He admitted to the assaults and expressed remorse and regret. He indicated that Mr Waters had said some things to him he should not have, and that he carried on when he should not have, and he made some assertions that he was defending himself at points in the fight, though accepted throughout the interview that he acted poorly and inappropriately. On several occasions he stated that he was embarrassed about his actions, saying he carried on "Like a fucking idiot".

17. As I said, the Crown placed before me the CCTV footage of the incident which gives rise to the charges, and that footage graphically shows the extent of the violence the offender engaged in that evening.

18. The offender gave evidence before me. He said that his memory of the incident giving rise to the charges was patchy. He gave evidence that he had consumed an enormous amount of alcohol prior to the incident, which I accept. He claimed in relation to the suggestion in the agreed facts that he stomped on the head of one of the victims, that he did not connect and that it was only an attempt.

19. When I have regard to the content of the agreed facts, what can be seen in the CCTV footage, and his concession his memory of the incident was patchy, I am satisfied beyond reasonable doubt that he did indeed stomp on that victim's head. The offender also gave evidence that in the initial scuffle with the group containing the victims of the offence, someone had spat on him. That evidence was not challenged by the Crown, although there is no reference to it in the agreed facts. However, the offender conceded that the person he struck with the pool cue was not the person who spat on him.

Assessment of Objective Seriousness    

20. I turn then to my assessment of the objective seriousness of the three offences. The whole incident from which the charges arose is a shocking example of a relatively young man engaging in alcohol-fuelled violence, something which the Court sees, regrettably, on far too frequent a basis, and something which no doubt the community is heartily sick of. The affray offence was in a public place. In terms of this offender's role in it, it involved punching the person Waters, punching the person Brendan Hardacre with an uppercut to the face, which caused him to fall onto the ground. This offender then stomped on his head. This offender also kicked Waters to the head while on the ground. These acts of violence were separate to the acts of violence which constitute the other offences for which the offender is to be sentenced.

21. The agreed facts record that Mr Waters and Brendan Hardacre both believe they had been knocked out during the affray, but fortunately neither required medical intervention. Kicking to and stomping on the head of a person while they are on the ground are very serious acts of violence. I consider that this offence, objectively speaking, is a little below a mid-range offence.

22. The assault occasioning actually bodily harm concerns a single punch to the face of a young woman, who was seeking to intervene, resulting in bruising and swelling to her left cheek. The CCTV footage shows just how forceful that punch was. Although only a single punch was involved, as has frequently been observed, that is all it takes to potentially cause catastrophic injury and death when that punch is to someone's head. I assess the objective seriousness of this offence as towards the lower end of the spectrum, given the low level of injury.

23. The reckless wound offence involved the use of a weapon which is an aggravating factor. The strike with the pool cue is to the face of the victim. It occurred when other people and the security guard, were endeavouring to intervene. The injuries to Mr Clark were fortunately not at the upper end of the spectrum, but did require suturing and it was an injury near an eye. I assess the objective seriousness of this offence as being a little below the mid-range level of objective seriousness.

24. In terms of aggravating factors, under s 21A(2) of the Crimes (Sentencing Procedure) Act the Crown pointed to the offender's earlier conviction for affray, and to the fact that a weapon was used in the reckless wound offence. I have taken the fact that a weapon was used into account in my assessment of the objective seriousness of the offence to avoid double counting. I do not consider that the offender's record is an aggravating factor under s 21A(2).

25. I do not consider there was any significant provocation here. The offender, after what was clearly an initial dispute with the other group, re‑entered the hotel and re-entered the pool room and began to engage in the violent conduct, the subject of the charges. The fact that the offences were committed while the offender was under the effects of alcohol is not a mitigating factor.

Offender’s Subjective Case

26. I turn then to the offender's subjective case. His date of birth is 14 October 1989, so he is currently 30 years of age and was 29 at the time. He is still, as I say, a relatively young man, but not what might be termed a young adult offender. He has one prior offence on his record, being that of an affray in 2012. He received a fine for that offence. The facts concerning that offence were placed before me. They show that that offence, like the current offences, were committed in licensed premises, and that alcohol was a factor. The past offence was similar to the current one, although considerably less serious. It also occurred some six years prior to the current offences, when the offender was a much younger man. In these circumstances, I do not consider that his record disentitles him entirely to some leniency here, although I must have regard to that offence when I impose sentence, given its nature.

27. The material provided in support of his subjective case establishes that he is otherwise a person of good character, and I will shortly discuss that material. I have before me a report by a psychologist, Mr Sam Borenstein dated 16 October 2019, a letter by a psychologist, Ryan Spencer dated 30 July 2019, a report by a counsellor Lisy De La Chaise dated 17 October 2019, and a sentence assessment report dated 28 October 2019. I have also received letters from the offender, his wife, his parents and his parents-in-law. The offender also gave evidence, as I say, before me.

28. In terms of his family background, the subjective material provides a brief overview of his upbringing. He has an older brother now aged 32 and a younger sister aged 26. He described his upbringing as "okay", however noted regular conflict between his father and older brother. The subjective material otherwise indicates the offender has a positive relationship with his family. The offender resides with his partner of four years in their own home, which they have only recently established in somewhat difficult circumstances.

29. There are a number of testimonials before me, as I say, from the offender's partner, his parents, and his parents-in-law, all of which demonstrate that he has the capacity to be a law-abiding, worthwhile member of our community. I note he is supported in Court today by his partner, parents and other supporters.

30. In terms of his education and employment history, the material before me establishes that he attended school until year 10. After leaving school he worked as an assistant in a printing factory for six months. He joined his father who works at Aldi, via a labour hire company. He then worked with Schweppes for seven years doing factory duties on a casual basis, and he is now in full-time employment with Crown Forklifts and has been since 2016.

31. It is evident from the subjective material that the offender has had a problem with excessive alcohol consumption in the past. Mr Borenstein notes in his report that this results in the offender having a propensity towards anger. Mr Borenstein also notes in his report a history of similar issues in the offender's family, not in his immediate family, but with certain members of the family in relation to alcohol. The offender in his evidence acknowledged that issue, and gave evidence, which I accept, that he has not used alcohol since the offending.

32. In terms of his psychological history, the offender reportedly sought treatment for depression and anxiety prior to the offending. He was treated with an antidepressant for two months. He recommenced treatment with that antidepressant after the offending. At the time of his assessment Mr Borenstein reported that the offender has symptoms of extreme depression, anxiety and stress, no doubt some of which was related to the fact he faced serious criminal charges.

33. After the offending the offender was referred by his GP to Mr Ryan Spencer and he has had ten sessions of counselling with Mr Spencer to date. In terms of his attitude to the offence, the offender acknowledged to the author of the sentence assessment report that he accepted that his response in the circumstances was excessive and his actions had been inappropriate. I note there were even expressions of remorse when he was interviewed by the police.

26. The author of the sentence assessment report stated that the offender expressed regret for his offending behaviour and the injuries he inflicted upon the victims. Mr Borenstein likewise reported the offender's expressions of guilt and remorse and that the offender impressed upon him his motivation to ensure that his offending behaviour is never repeated. Mr Borenstein reported the offender's acknowledgement that alcohol and anger management were closely linked with his offending behaviour and he accepts that to minimise future offending he must abstain from alcohol and learn how to manage his anxiety and depressed mood in more effective ways.

27. Similar expressions of remorse were made by the offender today when he gave evidence before me.

28. In relation to his mental health, as I have said, the offender has been attending regular appointments with a psychologist. It has been recommended that he continue with psychological therapy. In relation to his alcohol use, the offender has been attending Alcoholics Anonymous and has reportedly been attending sessions weekly. He reports that he has been abstinent since the offending, and I note that evidence he gave today. In relation to his anger management, the offender has participated in sessions of anger management with Ms Lisy De La Chaise. Ms Lisy De La Chaise evinces the opinion that the offender's likelihood of reoffending will be reduced if he applies some of the techniques he has learned in relation to his anger management.

29. As I say, the offender entered an early plea of guilty in the Local Court and I will allow him a 25% discount of his sentence for the utilitarian value of his plea. The early plea of guilty, together with statements he has made to the report writers and his evidence today satisfies me that the offender has genuine remorse for his offending. He has good prospects of rehabilitation. He has a limited criminal history, a supportive family and employment. He has commenced, since the offence, courses and counselling to deal with his undoubted problem with alcohol. I am satisfied that he has good prospects of rehabilitation.

30. There is a limited issue of parity in this sentencing. The co-offender Stuth was dealt with in the Local Court for an offence of affray only. He was sentenced in the Local Court to a term of imprisonment of 15 months to be served by way of an intensive correction order. In my opinion Stuth's involvement in the affray was not as significant as that of this offender. It is this offender who returns into the pool room and immediately engages in unlawful violence. It is this offender who stomps on one victim's head and kicks another’s head while they are on the ground.

31. I note also the co-offender was a person with no prior criminal record for violence. I have had regard to the sentence that was imposed in the Local Court on the co-offender when determining the appropriate indicative sentence on the affray count in relation to this offender.

32. I will utilise the aggregate sentencing provisions. If I had not done so I would have imposed sentences which were partially accumulated in order to reflect the fact that there were three different victims involved in the offending, although I acknowledge there was the one incident.

33. I have had regard to the objects of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender's conduct, recognising the harm done to the victims and the community and rehabilitation of the offender. As the Court of Criminal Appeal has said on many occasions, alcohol related violent offending by relatively young men is far too frequent in our community. Such offences are of very real concern to the community, who look to the Courts to impose significant sentences in relation to such offending.

34. General deterrence looms large when sentencing for such violent offences as those committed here, and the sentence I impose must properly reflect general deterrence, that is sending a message to the community that such drunken violent offending has no place in our community. There was no debate that the only appropriate sentence was one of some form of imprisonment when submissions were put to me earlier today. There was debate before me, should the sentence be one of three years or less, as to how that sentence was to be served.

35. Shortly it will be seen that I consider that an appropriate aggregate sentence is one of three years imprisonment. I was urged by counsel for the offender to consider imposing that sentence by way of an intensive corrections order. I have given that submission careful consideration, but have reached the decision that to impose a sentence which allowed this offender to serve it in the community would not properly reflect the objective seriousness of these offences and the principle of general deterrence.

36. The maximum penalty in relation to the reckless wound offence and the standard non-parole period have been taken into account as legislative guideposts, as explained by the High Court in Muldrock v The Queen (2011) 244 CLR 120.

37. As I said, I will utilise the aggregate sentencing provisions. I will firstly record the indicative sentences and in relation to the reckless wound offence, the standard non-parole period.

38. I am satisfied on the evidence, as I say, the offender has good prospects of rehabilitation and has commenced his rehabilitation, although it is not yet complete. His prospects of rehabilitation will be assisted if he has a longer period on parole than that provided by the statutory ratio. I note that this will be his first time in custody. I therefore make a finding of special circumstances when fixing the non-parole period. I have had regard to all of the objective circumstances of the offences and the subjective case of the offender when determining the indicative sentences and setting the aggregate term.

Orders

47. Please stand up Mr Downes. Mr Downes you are convicted of the three offences to which you have pleaded guilty. The first set of sentences you will hear are what are called indicative sentences. They are not the sentences that you will serve. You will then hear an aggregate term of imprisonment with an aggregate non-parole period and that is what you will serve.

48. The indicative sentences are as follows. On the affray offence there is an indicative sentence of two years imprisonment. On the assault occasioning actual bodily harm offence there is an indicative sentence of nine months imprisonment. On the reckless wound offence, there is an indicative sentence of two years imprisonment, with an indicative non-parole period of one year and four months. You are sentenced to an aggregate term of three years imprisonment with a non-parole period of two years. That sentence commences today, 1 November 2019, and expires on 31 October 2022. The non-parole period expires on 31 October 2021. The earliest date you may be released to parole is the date of the expiry of the non-parole period, which is 31 October 2021. Whether you are in fact released to parole that day is a matter for the State Parole Authority, which will have regard to how you behave in prison in determining whether you are released that day. Just have a seat.

49. HIS HONOUR: Is there anything further?

50. MCMAHON: Not from me, no.

51. MCWHIRTER: No.

52. HIS HONOUR: I will adjourn and Mr Downes will need to go with the officers.

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Amendments

06 December 2019 - Legal representatives

Decision last updated: 06 December 2019