R v Finnegan

[2020] NSWDC 956

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Finnegan [2020] NSWDC 956

Hearing dates:

28 October 2020

Date of orders:

30 October 2020

Decision date:

30 October 2020

Jurisdiction:

Criminal

Before:

KING SC DCJ

Decision:

Convicted.

Form ! matter taken into account.

Special circumstances found – first time in custody, need for longer period on supervised parole to assist the offender in respect of anger management and with rehabilitation into the community.

003: Sentenced to a term of imprisonment for 4 years and 6 months comprising a NPP of 3 years to commence on 30 October 2020 and to expire on 29 October 2023, and a balance of term of 1 year and 6 months to commence on 30 October 2023 and to expire on 29 April 2025.

Catchwords:

CRIMINAL – Sentence – break and enter and commit serious indictable offence - AOABH, in company – hammer attack on victim – seriousness of offence – “a brutal and savage assault” - Form 1 offence - owner not disclose identity of driver - subjective matters

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Law Enforcement (Powers & Responsibilities) Act 2002

Cases Cited:

R(Cth) v Petroulias (No 36) (2008) NSWSC 626

WW v R [2012] NSWCCA 165

Category:

Sentence

Parties:

Regina
Finnegan, Joshua

Representation:

Solicitors:
CR: Ms A Pinkerton ODPP
DEF: Mr L Angelovski, Astoria Lawyers

File Number(s):

2019/341415

Judgment

1. HIS HONOUR: Joshua Finnigan appears for sentence in respect of an offence that between 7.15pm and 7.25pm on 26 October 2019 at Earlwood he did break and enter the dwelling house of David Lloyd, situate in Homer Street, Earlwood, and that in the said dwelling house he did commit a serious indictable offence, to wit, assault occasioning actual bodily harm in circumstances of aggravation, to wit, the said Joshua Finnigan maliciously inflicted actual bodily harm on David Lloyd. In addition, there is a further offence contained on a s 166 certificate as a related offence, being owner not disclose identity of driver. The maximum term of imprisonment in respect of the offence of aggravated break and enter is 20 years’ imprisonment and there is a standard non-parole period provided by the legislation of five years.

2. The offender was committed for sentence on 9 July 2020, and it is accepted that, in the circumstances, he is entitled to a discount of 25% for the utility of the plea alone.

3. The facts are agreed and are as follows:

1. The victim, David Lloyd, and his wife, Sharon, resided in a unit in Homer Street, Earlwood. The unit was on the top level of a two‑storey building.

2. On Saturday 26 October 2019, at about 11.30am, Sharon Lloyd and Sonia Finnigan, the offender’s mother, were at the unit. They consumed some alcoholic beverages.

3. At approximately 1.30pm, Sharon and Sonia attended the Marrickville Golf Club where they met the victim. The victim was already at the location, having completed a round of golf. All three consumed some alcoholic beverages at the club.

4. At approximately 3.30pm, the victim drove Sharon and Sonia back to the unit in Homer Street, Earlwood, where they consumed some more alcohol.

5. The victim retreated to his room to watch the races while Sharon and Sonia played music and danced in the lounge room. The victim asked them to turn the volume down, however they continued to play music. The victim asked them a second time to turn the music down, but they did not comply with his request.

6. The victim cooked dinner in the kitchen, and after he had eaten his meal, he was approached by Sonia. Sonia and the victim had a conversation, during which Sonia said something that offended the victim and he yelled, “Get out of my house.”

7. The victim and Sonia were standing between the kitchen and the lounge room when Sonia grabbed the victim around the collar of his shirt and punched him in the face. Both Sonia and the victim started hitting each other. Sharon attempted to intervene and stop the pair from fighting by grabbing the back of the victim’s head and pulling him away. In doing so, she pulled a clump of hair from her husband’s head. The victim yelled at both Sharon and Sonia, “Get the fuck out of my house.”

8. Sonia could not find her phone and yelled, “Where's my fucking phone? I’m not leaving here without my phone.” Sonia flipped a glass coffee table in the lounge room over, causing it to smash. Sonia then pushed the large Hitachi television off the TV unit. Sharon handed Sonia her phone.

9. The victim grabbed Sonia by her shirt neck and started to lead her to the front door so that he could remove her from the residence. Sonia was yelling and screaming. The victim opened the front door of the unit with his right hand and pushed Sonia out the door. Sonia faced the victim on the other side of the doorway. Sharon then stepped in between the two. Sonia threw a punch with her right hand over Sharon and hit the victim under his left eye. The victim reacted and jabbed Sonia in the face and around the mouth and nose area with his left hand. The victim yelled at Sonia and Sharon to get out of his unit, and they subsequently left.

10. Sonia and Sharon left the unit and started walking up the driveway. Sonia took a photograph of herself using her iPhone. Within one minute Sonia’s phone rang and Sharon could hear a male on the phone whom she recognised as the offender, Joshua Finnigan. Sharon heard the offender say, “What the fuck happened to you?” Sonia said, “Dave, Sharon’s husband, did this to me.” The offender said, “I’ll be there in the minute.” The phone call ended, and Sonia told Sharon that the offender would arrive any minute.

11. Sharon and Sonia walked down the driveway of the unit block. Sharon waited in the driveway while Sonia walked south on Homer Street on the western footpath. Sonia then returned to the property and stayed in the driveway of the property. It was necessary to refer to those facts because they preceded the subsequently committed offence by the offender.

AGGRAVATED BREAK AND ENTER AND COMMIT SERIOUS INDICTABLE OFFENCE, ASSAULT OCCASIONING ACTUAL BODILY HARM IN COMPANY

12. Sharon called the police on her mobile phone. While on the phone she saw the offender walk into the driveway of the unit complex. The offender was holding a dark‑coloured hammer, which was about 40 centimetres in length, in his right hand up against his right leg. Sharon said to the offender, “Please don’t, please don’t.” The offender walked past her and straight up the stairwell of the unit complex.

13. Sharon ran to the nearby bushes while still on the phone to the police. She could hear loud banging coming from the upstairs area of the unit complex.

14. A neighbour heard yelling coming from the street. He looked out his window and saw a blue-coloured Ute with the numberplate BMT 714 and a green magnetic P-plate parked outside number 131 Homer Street, Earlwood. A black Chrysler 300C also arrived and parked in front of the Ute. Three unidentified males were seen by witnesses getting out of the Chrysler. The males were seen speaking with a female before heading towards the complainant’s unit complex.

15. The offender used the hammer to hit the front door of Unit 4 with force. Sharon and several witnesses could hear the loud thud of the hammer striking the door. The victim, fearing that someone was about to break in, decided to open the front door and saw the offender standing there, holding a hammer in his hand, and saw another male holding a length of metal. As the victim opened the door he was immediately struck in the face. The force of the strike caused the victim to turn around. At that stage he felt a hit to the back of his head that caused him to fall to the ground. The victim then lost consciousness.

16. A short time later, the offender and the other three males ran from the unit back to their vehicles. Sharon observed the offender to be still carrying a hammer when he left. The offender and his mother left in the Navara, driving north on Homer Street. The other three males entered the Chrysler and, after making a U-turn, drove in the opposite direction.

17. Sharon went upstairs and found the victim bleeding on the floor and barely conscious. Police arrived and gave the victim first aid. An ambulance arrived a short time later and took the victim to St George Hospital.

VICTIM’S INJURIES

18. Dr Selvendren, from St George Public Hospital, assessed the victim on the night of his admission and noted the following injuries:

• A CT scan showed he had a large scalp and traumatic subarachnoid haemorrhage in the frontal and temporal lobes (bleeding in the brain) and multiple facial bone fractures (left supraorbital, zygomatic arch, maxillary sinus and left nasal bone).

• His chest X-ray showed multiple right-sided rib fractures (ribs 3, 4, 5, 6 and 7).

• The victim had bruising on the left side of his face and eye.

• He had a left upper lip laceration and bleeding in his left (conjunctival) eye.

• He also had painful bruising over his right chest wall.

• 19. In terms of managing the victim’s injuries, the following occurred:

• His facial fractures were managed non-operatively with antibiotics by the plastic surgery team. The victim’s lip laceration was sutured.

• His traumatic subarachnoid haemorrhage was reviewed by the neurosurgical team and a repeat CT scan showed no significant progression.

• The victim’s rib fractures were also managed non‑operatively with painkillers and high flow oxygen.

• The victim passed the post traumatic amnesia memory test and was cleared by all allied health teams during admission.

20. The victim was seen by the trauma, plastics and neurosurgical teams and was managed conservatively on the ward for his injuries. The victim was discharged from the hospital four days later on 30 October 2019.

ARREST OF OFFENDER

21. On 30 October 2019, the offender was driving a blue Nissan Navara registration BHT 73A. At about 5.30pm, police pulled the offender over and explained to him that he was wanted in relation to an assault in Earlwood on Saturday night. The offender replied, “Yes, I have been waiting for you guys”. The offender was subsequently cautioned by police. Police seized the vehicle and the offender’s mobile, and the offender was arrested. Police observed the offender to have an injury to his left eye.

22. The offender was taken to a police station where he was introduced to the custody manager. During the conversation with police, the offender said, “What would you have done if it was your mum?” Police requested that he disclose the name and residential address of the driver of the blue Nissan Navara BHT 73A on 26 October 2019. The offender did not disclose to police that he was the driver of the vehicle at the relevant time. That is the offence on the s 166 certificate.

23. The offender was informed of his rights and refused to participate in an electronically‑recorded interview, as was his right.

24. On 6 November, at 10.45am, police searched the offender’s car. They located a blue-handled hammer on a tool belt that was situated in the seat of the vehicle. They observed that the hammer had white paint residue on the head which was consistent with the paint on the door of the complainant’s unit.

4. The aggravating circumstance pleaded by the charge is one of being in company with the other three persons who attended but are unidentified. However, there are a number of circumstances of aggravation provided by s 105A(1) which are also relevant. They are that the offender was armed with an offensive weapon or instrument, being a hammer, and he was in the company of another three persons, although the victim only observed the offender and one other. The one other offender observed by the victim was also in possession of an offensive weapon or instrument, being a length of metal. Corporal violence was used on the victim and actual bodily harm was intentionally inflicted. The offender was aware that there was a person in the place where the offence was committed. Each of those circumstances of aggravation as provided by s 105A applies in this matter, even though only the circumstance of being in company is referred to in the charge.

5. The attack was an unprovoked, brutal and savage assault on a 55‑year‑old victim, who was present in court to read his Victim Impact Statement. It was notable that he is not a particularly tall person; that he looks his age and is of slight, non-muscular build, and the offender was at the time some 28 years of age and presented in Court as being significantly more athletic than the victim. He is of a large and imposing build, well‑muscled and stocky. One of the references provided on his behalf is from the membership manager of a gym called All Hours Fitness. The reference indicates that the offender has been a member known to the author for over one and a half years and that he trains at the facility multiple times a week. That degree of training is clearly reflected in his physical characteristics, as were evident on the sentence hearing.

6. I have already referred to the offence as being unprovoked. The offender was not present at any time when there was any interaction between his mother and the victim. The agreed facts indicate that it was in fact the offender’s mother who was responsible for a physical interchange between herself and the victim. It included her deliberately damaging a coffee table and at least attempting to damage a TV, in circumstances where all she had been asked to do was, because of an offensive remark, leave the victim’s premises.

7. She communicated a photograph of herself outside the premises, apparently showing blood on her face, but there is no other information as to what else she may have conveyed, other than that she and the victim’s wife had been assaulted by the victim.

8. The offender, in his evidence, said that after receiving the first message from his mother, that it took him some 20 minutes to attend at the scene. He informed the psychologist that it took 30 minutes. Having arrived at the scene, the facts do not disclose that he had any further interchange with his mother, who had walked off up the street. However, it is possible, in relation to where his vehicle was located, that he managed to speak with his mother when he attended at the scene or, alternatively, had some further conversation by way of mobile telephone with her.

9. During the course of the offender’s travel from wherever he was to the scene, for whatever time that it took him to so travel, during that period he called a friend or a group of friends. The three unidentified persons were able to attend at the scene almost immediately after the offender had arrived, and were present at the time of the assault, and the victim, having been knocked unconscious, could provide little information as to exactly what had happened after he had been knocked unconscious.

10. It is difficult, in the circumstances, to ascribe any particular injury to any particular action or weapon, as all the injuries noted by Dr Selvendren may have been inflicted either by either of the offensive weapons present or by physical conduct such as punching or kicking. There was, of course, no utility in the offender taking with him a hammer for the purpose of knocking on the door, and he must clearly have taken it for the purpose of threatening or using it in the course of confronting the victim. The fact that the offender arranged for one or more other persons to attend, in the circumstances indicates that the assault was premeditated from at least at the time of any call to gain the assistance of those persons.

11. This was a brutal and savage assault carried out by the offender and/or those whose assistance he had enlisted. Objectively, it is a very serious example of such an offence. The injuries inflicted on the victim must be regarded as being at the highest end of the range constituting actual bodily harm, prior to any injuries escalating to the next level of seriousness, which would be grievous bodily harm. In addition to the relevant circumstances of aggravation provided by s 105A, s 21A(3)(e)(b) applies, that is, the offence was committed in the home of the victim.

12. As previously referred to, the victim attended and read to the Court his Victim Impact Statement. Now some 55 years of age, he refers to himself as having been a spray painter for the past 33 years, and describes the offender’s actions as,

“he beat me to an inch of my life, that is how I feel. I don’t remember all the assault, but when things became clear I was in St George Hospital. I was in a lot of pain.”

and he refers to the injuries that I have previously referred to. He referred to his pain continuing while he was in hospital and to having continuing numbness in his lip, and to suffering from headaches and a tenderness to his head, in the area where he believes he was in fact struck with a hammer, and soreness in his ribs when sleeping, taking a deep breath or trying to extend his arms. A devoted golfer, he was unable to return to his recreation for a considerable period of time because he was so physically sore. He lost confidence in his own abilities and became, in effect, timid. Although he returned to work when he could, it was a graduated return for limited hours, increasing over time as he recovered. Because of the reduced hours to accommodate his physical health, he was placed under financial strain. He indicated to the Court that he now feels anxious on a daily basis and a “little depressed.”

13. Mr Lloyd was in fact fortunate not to have suffered far more serious consequences from the injuries inflicted. It was also fortuitous that conservative treatment sufficed to deal with his various fractures. There was no need for any surgical intervention in relation to any of the fractures, indicating that the bones must have remained relatively in place, so that it was unnecessary to insert pins to ensure the broken bones could knit, and he was very fortunate that the intracranial bleeding did not result in any significant sequelae, which are always of serious concern in relation to intracranial bleeding. There was also no evidence of nerve damage resulting from any of the frontal facial injuries, which is also a common sequela.

14. An aspect I omitted to refer to previous is that having completed the vicious assault, the offender and his assistant or assistants left the premises, leaving the victim unconscious on the floor of his unit. They did not endeavour to arrange for anyone to attend to assist him, in circumstances where it must have been patently obvious to them that he had been seriously injured. There is no evidence as to how the victim’s ribs were broken, and I will return to that later in these reasons.

SUBJECTIVE MATTERS

15. The offender was 28 years of age at the time; he is now 29. Available to the Court in relation to subjective matters is his criminal history, which I will simply note includes an offence in 2014 of shoplifting, in relation to which he was fined $300. There were, however, three counts of shoplifting and a further offence, in 2015, of drive motor vehicle while licence suspended, being a first offence, in relation to which he was fined and disqualified.

16. In relation to his criminal history, I do not regard it as one which has any real or significant adverse effect in relation to the sentence to be imposed. It is a minor history, although it is a history.

17. Available to the Court otherwise is a Sentence Assessment Report of 22 October 2020 under the hand of Joshua Moran, Community Corrections Officer, a psychological report from Mr Awit, dated 19 October 2020, and a reference from Jason King, dated 10 August 2020, a payslip from PJ Connolly Pty Ltd for the period 10 August 2020 to 16 August 2020, a letter from Dr Basavaraj to an unnamed doctor in respect of the offender’s history of allergy to cats and dogs and having contact dermatitis, treated by way of sublingual tablets and Kenacomb Otic ointment, and an indication that he may have an allergic reaction to penicillin, resulting in rashes. I do not regard any of the information contained in the letter from Dr Basavaraj as having any significant impact in relation to the sentence to be imposed in this matter.

15. In addition, there is a letter from Athanasia Papaspiropoulos, the owner/director of Learning Wonderland, being a business at which the offender’s two children have attended over the past two years, a reference from Katrina Makdessi, dated 23 August 2020, being a friend of the family and someone who has babysat his children on numerous occasions, and who has known the offender for “many years”.

16. There is a further letter from Hadi Charbine, a pharmacist at the PharmaSave Riverwood Discount Chemist, whose association with the offender and/or his family is only in respect of a pharmacist/patient relationship, that is, that they attend the pharmacy to get their prescriptions and no doubt other items relevant to young children, in particular, over the last three and a half years.

17. In addition, there is a letter from Rayyaan Ali, as previously referred to, relating to membership of All Hours Fitness, who has known the offender only for a period of one and a half years, and only in the circumstances of the offender training multiple times a week. There is a further reference from Connor Moran; the offender has worked under his supervision as leading hand for two years. In addition there is a further joint reference from Salwa Tuma and Linda Santangelo, dated 7 August 2020. They have known the offender over the previous two years, being educators in respect of his son, Ryan and, previously, his daughter, Madison. In addition, there is an undated letter to the Court from the offender’s partner and the mother of his two children. As previously indicated, the offender gave evidence on sentence, as did his partner. Subjective matters are drawn from that material.

18. The offender was born in Sydney and is the only child of his parents’ relationship. He has never, in fact, met his father. His mother was taken in by his maternal grandparents and, for the first five years of his life, his brother and he lived with them until she secured a housing commission premises and he then grew up in the Campsie area, living between his mother’s residence and his grandparents’ residence. He attended the Earlwood Public School from kindergarten to Year 6 and Canterbury Boys’ High from Year 7 to Year 10. He described himself as having been a fairly well-behaved student and an average student academically, although he had some behavioural problems towards the end of his schooling, according to him, due to his grandfather’s demise. He was a keen swimmer from the age of 6 until the age of 14, but lost interest after his grandfather died. He has, since leaving school, attempted three TAFE certificates, however he has not completed any of them.

19. He first commenced employment at the age of 16 in the plumbing industry, in which he worked for some eight months. Over the last 13 years he has worked in a number of labouring positions in the construction industry, carrying out such work at formwork, concrete pumping, painting and decorating, as well as excavation, and for the last seven years as a window installer.

20. He is said to be a recreational consumer of alcohol and only on rare social occasions. He does not use any prohibited substances or prescription substances not prescribed for him. He has two children aged five and three. He has been in a relationship with his partner for a period of eight years, and he informed the psychologist that they are engaged and had plans to be married, which they had deferred because of Covid‑19. He is said to remain close to his mother, as is evident from the offence.

21. Mr Awit opines that the offender has underlying symptoms of anxiety. As a single parent, his mother apparently struggled to raise him. His partner’s family are said to be “not in the picture” and that the offender provides support for his family and his mother. According to the psychologist,

“It is clear and evident that prior to/during the offending period his decision-making processes had been impacted by the symptoms reported.”

25. The symptoms reported were anxiety, periods of uncontrollable worry, feelings of psychomotor agitation, nervousness, sleeping difficulties and memory and concentration issues, as well as low mood. According to the psychologist, the reported symptoms met the DSM-V diagnostic criteria for Generalised Anxiety Disorder and he opined, “the writer is of the professional opinion that Mr Finnigan’s decision-making ability was significantly impacted at the time of the offences.”

26. The Crown has submitted, in relation to the opinion of Mr Awit, that he is a psychologist, not a psychiatrist, and that his opinion crosses the line in relation to what is appropriate for psychologists to do by way of providing information to courts rather than psychiatrists, and referred to the observations of Johnson J in R(Cth) v Petroulias (No 36) (2008) NSWSC 626 as being relevant:

“It is important that psychologists do not cross the barrier of their expertise. It is appropriate for persons trained in the field of psychology to give evidence of the results of psychometric and other psychological testing and to explain the relevance of those results…It is not, however, appropriate for them to enter into the field of psychiatry.”

27. In addition, the Crown has referred to WW v R [2012] NSWCCA 165 where the Court held that it was open for a psychologist to test for indications that, at the time of testing, an individual was suffering from ADHD and could describe the characteristics of the condition, but what a psychologist could not do, as a psychologist, was to express an opinion as to whether and to what extent the condition affected the applicant at the time of the offence, at para 60.

28. I accept the Crown’s submission as being appropriate. Mr Awit has indeed crossed the line, as is unfortunately the frequent case in relation to psychologists.

29. The offender provided to the psychologist a version of the events as follows:

“He advised that despite him being provoked by the assault (of) his mother (Ms Sonia Finnigan) had suffered, there was not (sic) excuse for his behaviours on this evening. Mr Finnigan advised that he had been spending time with his family when he received notification from his mother that she and her friend (Ms Sharon Lloyd) had been assaulted by Mr David Lloyd. Mr Finnigan advised that prior to the assault, he had never met Mr Lloyd and had no idea what he looked like. Mr Finnigan advised his mother that he was coming to get her. He advised that on the way there his mind was in a frenzy. Mr Finnigan described having racing negative thoughts that were a mixture of worried and angry thoughts in relation to the situation. He advised that he was strongly concerned for his mother’s wellbeing and advised that he felt she might still be in danger. Mr Finnigan advised that he called one friend to come down in support as he did not know anything about Mr Lloyd. Mr Finnigan advised that he was struggling to think clearly and process all the thoughts running in his mind. He advised that he had seen his mother's face and even after 30 minutes it was still bleeding. He advised that he stupidly/impulsively decided to confront Mr Lloyd. Mr Finnigan advised that he barely had time to process what he was going to do. He advised that again no (sic) knowing what Mr Lloyd looked like, he picked up the first item from his vehicle which was a hammer (which was a tool he had in his car due to his work). He advised that he ran up to the apartment and was trying to gain entry. Mr Finnigan advised that at this time he was alone. He advised that whilst at Mr Lloyd’s front door friends arrived. Mr Finnigan advised that he had contacted one person but this person brought others with him. Mr Finnigan advised that when Mr Lloyd open (sic) the door, he stupidly entered, and the assault took place.”

30. It is notable in relation to that version of what occurred that it simply terminates, without any information from the offender as to how in fact the victim was assaulted and by whom; that is, the offender was apparently only disclosing his reasons for attending and his alleged thought processes while driving to the scene. Further in the report it indicates that he advised that it was a split-second decision to travel to his mother to bring her to safety. Of note, of course, is that his mother had already departed from the premises. There is no suggestion that there was any ongoing threat to her in any way, whether provoked or not provoked, from the victim.

31. According to the offender’s evidence on sentence, it appears that he must have spoken to her while she was outside the building and before he entered with the hammer. If, as he suggested on several occasions, he attended the premises in order to pick up his mother in order to take her to safety, he did not do that, and had already arranged for others to assist him before attending at the victim’s door with a hammer and attempting to gain entry before then assaulting him. I do not accept that there is any causal relationship between any condition of anxiety or other matter, as referred to by Mr Awit as being relevant to the sentencing process, although I accept that the offender was clearly very upset and angry, on the basis that he believed his mother had been improperly assaulted by the victim, even though there was no actual foundation for any such belief.

32. As to the references that have been provided, Mr Jason King indicates that he has known the offender for seven years and regards him as being friendly and kind‑hearted to everyone, and refers to this as having been a “bad decision”, in respect of which the offender “constantly shows remorse for his actions”, which Mr King considers out of character, and refers to him as an honourable individual and a good human being.

33. The payslip from Connolly Pty Ltd indicates that, as a subcontractor, the offender earns a significant sum of money. I have already referred to Dr Basavaraj’s letter, which is of no practical utility in relation to this sentencing procedure. The letter from Athanasia Papaspiropoulos refers to the offender as volunteering at functions operated by Learning Wonderland, as part of the parent involvement team and refers to her being,

“… truly shocked to hear a parent being charged whilst protecting his family and feeling vulnerable and distraught of his actions which are out of character.”

34. As I have already noted, the offender was not protecting his family, he was carrying out what can only be regarded as an act of revenge, a vigilante action. His actions were marred by a lack of real understanding about what had occurred between his mother and the victim and any action as to what had happened should have been left to those entrusted by the community to appropriately deal with it. it is one of the reasons that the law has always frowned on vigilante actions. Ms Papaspiropoulos’s knowledge of him, apart from his attendance as a parent involvement team member, is in relation to him either dropping off or picking up his children, which must be regular as his partner does not drive. She refers to him as being a great father with strong morals and ethics. However, I note that her business is dependent on the offender as a client to pay for its services, and her contact with him is limited in the ways that I have referred to. While I take it into account, in my view, considering the limited history of only two years of contact and the nature of that contact, and the circumstances in which it occurred, while the reference is relevant it does not have high weight.

35. As to Ms Katrina Makdessi, she has apparently had a friendship with the family for many years. She refers to the offending as being,

“… highly contrary to his character and sincerely believe that this was a one-off event that will never take place again. My family and I love and support Josh and his family and will continue to show our support no matter the conclusions of this case.”

36. She also refers to him being “… bubbly, outgoing, friendly and compassionate …”. I accept that she has had significantly more contact with the offender and his family, and is in a position to provide an opinion in relation to him based on significant exposure.

37. As to the letter from Hadi Charbine from PharmaSave, as indicated, they have been in a commercial relationship, she being a pharmacist who supplies the prescriptions and goods that the family might need. She states that she had a conversation with him when he informed her about the events of the day and that,

“I saw and heard a level of remorse for his actions which gives me no hesitation in saying that he greatly regrets the subsequent incidents which followed. His behaviour on that occasion was reckless and grossly out of character and something he will rue for the rest of his life.”

38. She also refers to him as having been a “… respectful, responsible and, most of all, honest individual in all matters associated with our pharmacist/patient relationship”.

39. I accept that, at least to some degree, he has expressed remorse and regret for his actions to the pharmacist.

40. As to the reference from Rayyaan Ali, Mr Ali is again a person, in effect, in a commercial relationship with the offender. Although he sees him multiple times per week when he works out at the gym, it is a relationship based on that context. He is said to be a person friendly with other members of the staff, a hard-working, family-orientated man. I accept that Mr Ali has expressed his genuine opinion, but I note that it is very limited in terms of his knowledge of the offender and in limited circumstances.

41. As to Connor Morant, he has been familiar with the offender for a period of some two years and regards him as a valuable member of his site team, and refers to him as being reliable, responsible and punctual with a strong work ethic. He also indicates that he believes that the offender is “remorseful for his actions and that his actions are not a true reflection of the person he is.” He does not suggest that the offender has expressed remorse or contrition to him, but I accept his assessment.

42. As to Salwa Tuma and Linda Santangelo, I note, as previously I have referred to, they have only known him for a period of two years, as they have been concerned with the education of his two children. There is no information as to how they come to be involved in the education of his two children, but presumably it is because they work at Learning Wonderland. They indicate that they believe that he regrets his actions and his lapse of judgment.

43. The offender’s partner, Jessica Travato, has written a reference which deals with such issues as her confirmed love for the offender and his nature and character as she has found it to be over the eight years they have been together, although she had also known him for some six years prior to their relationship. She speaks of him in highly glowing terms and otherwise of the hardship that will be caused to the family in his absence should he be incarcerated. She states:

“Josh is aware of his mistake. He knows what he did wasn’t right. It was very out of character for him to react like that. I have never seen him do something so out of character considering the amount of years I’ve known him. I can see the remorse in him when he speaks about it and I can see how upset he is with himself.”

44. She goes on to talk about her reaction in the circumstances of him having been charged, and suffering anxiety attacks from feelings of abandonment, loss and heartbreak and her need for him, and of her fears in relation to her children’s development should he be incarcerated. Not only did she write a reference to be tendered in Court, she was called to give evidence on sentence.

45. When I enquired of Mr Angelovski, appearing for the offender, as to why he was calling the offender’s partner in circumstances where a lengthy letter to the Court had been written by her, I was informed that he believed that there were additional matters that she would refer to in her evidence. Having listened to her evidence, I did not find any significant matter in addition to what was already contained in her letter, and I formed the opinion that the only real purpose in calling her was so that she could emotively react with the Court in an endeavour to gain some sympathy for the offender and herself and their family.

46. As to the offender’s evidence on sentence, it was revealing. His version of the events was that, after he told his mother that he was coming she sent him the address. On the way he rang a friend and gave the address to the friend. That he arrived and found his mother had been bashed and was still bleeding. That at this point he “lost it” and then went to his car and got the hammer which, having gone to the unit, he used to knock on the door, but then ran downstairs and ran back up again as another person had arrived, being an individual that he declined to name.

47. He claimed that the victim opened the door, at which time he dropped the hammer to the floor and that, as soon as the door had been opened, the victim hit him and he blacked out and then ran downstairs, as I understand it, because he was hurt. He said he had been hit in the face. That he then left to get his mother and take her home. I note that that version is significantly contrary to the agreed facts as to what happened when the victim opened the door, although it cannot be ascertained from the facts as to exactly how or with what the victim was struck.

48. When asked, during cross-examination, how the victim came to suffer five broken ribs, he indicated, contrary to his previous evidence, that he had no recollection of what had in fact happened during the assault, that he personally had punched the victim a number of times to the ribs. In view of the fact that the victim had been knocked almost immediately unconscious and to the floor, he was asked how he had in fact done this and indicated that he had bent over and punched the victim to the ribs while he was unconscious on the floor. And when asked if he had done this by in fact kicking him, or one of the other three persons present had kicked him, he denied it and continued to claim the ribs were broken as a result of his punching the victim.

49. Of particular note is that having denied initially in his evidence-in-chief, any real knowledge of what had happened at all, in cross-examination he suddenly knew much more, including some other matters that I will not bother to refer to. However, inevitably, it must be said in relation to the offender’s evidence on sentence, that he significantly endeavoured to diminish what had occurred and, at least initially, his participation in inflicting the serious injuries received by the victim.

50. As I indicated during submissions, I do not accept the offender as having been truthful in his evidence, and I make a similar observation in relation to the offender’s partner, who claimed that she knew almost nothing about it, other than that the offender had attended and assaulted the victim, until such time as she read the facts, and that at no time did the offender tell her anything more than that he had assaulted the victim, and that she had never asked or been told who were the other persons who attended or, for that matter, anything which might have disclosed how the significant injuries were inflicted on the victim.

51. I similarly do not accept his partner’s evidence as having been truthful, although I acknowledge that it is highly likely that the offender would not have wished to provide details as to what he had actually done and, indeed, has continued to protect himself in that fashion by ensuring that there was no other alternative version as to what happened, by not identifying any of the three persons who attended with him, who might well have given a different version and indicated who in fact did what. And despite my reluctance in relation to accepting any of the offender’s evidence, I will accept that the offender is genuinely remorseful for what he did, even though in my view he has not been honest about it.

44. I accept that he is well regarded by those persons who have known him on a personal basis, and that he continues to have their support. I acknowledge that he has a young family and a partner who is now unemployed as a result of COVID, and that imprisonment will have an adverse effect on the family. He has no relevant criminal history and I accept that there is a reasonably good prospect of rehabilitation. I accept, particularly having regard to his age and past criminal history, that there is a low to medium risk of reoffending, as indicated in the Sentence Assessment Report, which I regard as being a far more realistic assessment than that provided by Mr Awit.

45. Of some concern is that, to the Sentence Assessment Officer, and indeed also to Mr Awit, he refers to his offending as being a result of having lost control. Having lost control, and the extent to which he did so, is a cause of serious concern in relation to the risk of reoffending. He referred to the offence as being an isolated incident due to him overreacting to his mother being assaulted. In my view, it was not simply a matter of him overreacting, but falling into what must have been, in effect, a violent rage, in respect of which he enlisted the assistance of others.

46. He informed the Sentence Assessment Officer that “he acknowledged that although the victim assaulted his mother, he did not deserve to be assaulted. He further noted that two wrongs do not make a right”. He repeated that particular phrase in his evidence on sentence, “two wrongs do not make a right”. In my view, that indicates that the offender has failed, even with the full knowledge of the facts, to identify that there was a legal obligation not to assault another member of the community.

47. I have taken all those matters into account, including the discount that I have previously referred to. The Crown’s submission is that the s 5 threshold has been passed and Mr Angelovski, on behalf of the offender, has acknowledged, as he must inevitably have done, that s 5 threshold has been passed in relation to this matter, where it is clearly well above mid-range for an offence of this nature and, as I have previously said, the injuries inflicted are at the very highest end of the range for actual bodily harm.

48. Having considered all those matters, in relation to the offence contained on the s 166 certificate of owner not disclose driver in relation to the vehicle that he himself drove to the scene that evening, he is convicted and sentenced to a term of imprisonment of three months.

49. In relation to the offence of aggravated break and enter and commit serious indictable offence, being assault occasioning actual bodily harm in company, the sentence is one of four years and six months. I will find special circumstances and reduce the statutory relationship of the non-parole period to the balance of term by reducing the non-parole period to three years. That will commence today, 30 October 2020 and he will be first eligible for parole on 29 October 2023. The balance of term of one year and six months will expire on 29 April 2025.

Mr Finnigan, do you understand that you will not be eligible for release until 29 October 2023?

OFFENDER: Yes, your Honour.

HIS HONOUR: Your release at that time will depend on how you go well in custody.

OFFENDER: Yes, your Honour.

HIS HONOUR: You have no previous offences that have been relevant to sentencing and in that sense you are effectively - although I haven’t actually stated it so far - a person of reasonable good character, except for this outrageous offence.

OFFENDER: Yes, your Honour, thank you.

HIS HONOUR: I trust that while you are in custody you do ensure that you take what assistance you can get from programs in gaol in relation to anger management. I note you have had some eight sessions of counselling with Mr Awit, but there will be programs available in gaol for you to attend. You should make sure you attend those, because your release at the earliest time will be dependent on how you go in custody. It’s a matter for the authorities to determine if you be release at that time. My expectation is, on the basis of the material that’s been before me, is that you will be released at the earliest time, but that’s a matter for you.

OFFENDER: Thank you, your Honour.

HIS HONOUR: Is there anything else?

PINKERTON: Your Honour imposed a three‑month sentence in relation to the 166 offence. That offence was placed on a Form 1 related to--

HIS HONOUR: It’s on a 166 certificate.

PINKERTON: Yes, to travel with, and it was placed on a Form 1 for sentence.

HIS HONOUR: It’s not on a Form 1, is it? It’s on a 166 certificate.

PINKERTON: There should be a signed Form 1.

HIS HONOUR: I see, all right.

PINKERTON: Yes, thank you.

HIS HONOUR: Well, as you can tell, Madam Crown, from the fact that I did not give an aggregate sentence that was any greater than the sentence imposed for the aggravated break and enter, I made it entirely concurrent. So I will simply indicate that, in sentencing for the offence of aggravated break and enter and commit serious indictable offence, I have taken into account the matter contained on the Form 1 rather than the s 166 certificate, of owner not disclose identity of driver.

PINKERTON: Thank you, your Honour.

HIS HONOUR: Yes, Madam Crown. I have made that error because, although the Crown sentence summary refers to - it refers to both a s 166 certificate and a Form 1

PINKERTON: Yes, your Honour. I apologise.

HIS HONOUR: And the s 166 certificate has been included in the Crown bundle.

PINKERTON: Yes, your Honour.

HIS HONOUR: Which it should not have been.

PINKERTON: No, your Honour. I apologise.

HIS HONOUR: The facts referred to that charge as being on a Form 1, which I amended in my version to a s 166. However, as it makes no difference, I will amend my remarks on sentence to appropriately reflect that it was taken into account on the Form 1 rather than the 166 certificate.

Madam Crown, this is one of two matters you had before me yesterday, isn’t it?

PINKERTON: Yes, your Honour.

HIS HONOUR: And the other matter was riddled with errors in the Crown bundle.

PINKERTON: Yes, your Honour.

HIS HONOUR: Which were not corrected and which you had to hand up replacement pages for at 2 o’clock in the afternoon, having had all day to ensure that the bundle that came to the Court was correct. Can I suggest that you put more time into preparing these matters before coming to Court?

PINKERTON: Yes, your Honour, I apologise.

HIS HONOUR: It’s not helpful and it ends up with courts making mistakes, which then end up with successful appeals in the Court of Criminal Appeal because of some minor issues such as a miscalculation of the time in custody, matters of that nature, or the failure to refer to a standard non-parole period, or the suggestion that the offender has spent a particular time in custody only referable to the offence in question when, in fact, it has been only referable to other matters such as the other matter you had yesterday. I’ll adjourn.

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Amendments

16 June 2023 - Removal of capital letters from title.

Decision last updated: 16 June 2023