R v Gary Michael Aldridge

[2008] NSWDC 375

CITATION:	R v Gary Michael ALDRIDGE [2008] NSWDC 375
JUDGMENT DATE:	13 February 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I determine this appeal against sentence by setting aside the sentence.
CATCHWORDS:	CRIMINAL LAW - Appeal - assault occasioning actual bodily harm - common assault - malicious damage - fail to appear - relatively minor prior criminal record - pre-sentence report - custodial sentence necessary - suspended to allow alcohol rehabilitation
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 9, s 12 Crimes (Appeal and Review) Act 2001 s 20(2)(a)
PARTIES:	Regina Gary Michael Aldridge
FILE NUMBER(S):	2007/42/0458
SOLICITORS:	Mr Stanley for the NSW Office of the Director of Public Prosecutions Mr Edmunds for Mr Aldridge

JUDGMENT

1. This is an appeal against sentences brought by Gary Aldridge. Gary Aldridge was sentenced by the magistrate at Eden Local Court on 5 September 2007. He was convicted of five offences. One of them was assault occasioning actual bodily harm. Two of them were common assaults. The fourth was malicious damage and the fifth was a failure to appear contrary to the Bail Act.

2. The learned magistrate sentenced Mr Aldridge to seven months imprisonment for the assault occasioning actual bodily harm and specified a non-parole period of two months. For the two common assaults his Honour sentenced Mr Aldridge to fixed terms of two months imprisonment and for the malicious damage and failure to appear his Honour sentenced him to seven days imprisonment. All the sentences were specified to commence on 5 September 2007.

3. As I said Mr Aldridge had appealed against those sentences and has been on bail since. I approach this as a fresh sentencing exercise. I do not look for error in what the magistrate did but come to my own decision about what is the appropriate sentence.

4. Briefly what happened is set out in a facts sheet which is part of exhibit A. The events occurred on 18 January 2007 just over a year ago. That evening John Stewart a cousin of Mr Aldridge’s was sitting at home with some other people. Mr Aldridge came to the front door. Mr Stewart told Mr Aldridge that he was not welcome. Having been told that Mr Aldridge kicked the front wooden door a number of times causing it to split and then punched the glass kitchen window causing that to smash. He was swearing at Mr Stewart at the time. That resulted in the charge of malicious damage.

5. A little later that evening he went to a place occupied by Cormac Pidgeon and Julie Feeney. All of these events occurred, I should add, in Eden. He argued with the two them and was thrown out by Mr Pidgeon. A short time later Mr Aldridge came back in swinging a metal bar in the direction of Mr Pidgeon’s head. It hit is right forearm causing pain. Once again he was thrown out the back door but he came back yet again this time holding a stick which he hit Mr Pidgeon with on the left knee. He was thrown out the front gate.

6. What prompted Mr Pidgeon to remove Mr Aldridge from the house in the first place was that Mr Aldridge punched Ms Feeney to the left side of her face. That punch amounted to the common assault and the wielding of the metal bar was the assault occasioning actual bodily harm and hitting the stick was the assault.

7. Police were called and they found that Mr Aldridge was moderately affected by alcohol. At some stage he was charged and given bail. He was due to appear in court on 22 May 2007 but failed to appear which led to the charge under the Bail Act which I have referred to.

8. Mr Aldridge has a criminal record but it is not nearly as bad as some of the criminal records which I see in this court. He was born on 5 January 1979 so that he became an adult when he turned eighteen on 5 January 1997. His first offence was not until two years later when he was removed from an hotel. He was convicted in 1999 of failing to quit premises and was fined one hundred and fifty dollars. His next offence was not until three years later when he was convicted at the Downing Centre Local Court of once again failing to quit premises and a common assault. He explained to me the circumstances of that offence when he was insulted in the hotel by another patron.

9. The next offences are those for which I was sentencing him.

10. The common assault which occurred in 2002 I know little or nothing about but it attracted a fine of one thousand dollars. He therefore comes before me with not an unblemished record but with a relatively minor record and no significant violence.

11. A pre-sentence report has been prepared and admitted as exhibit B in these proceedings. It recites his family background including the fact that he and his brother were adopted out when he, Mr Aldridge, was about two years old. He had a good upbringing. He decided to meet his birth parents at some stage but that was not a successful encounter. In fact it resulted in an attempted suicide by Mr Aldridge and some weeks in a psychiatric hospital.

12. He had been educated in Sydney up until the Higher School Certificate and lived in Sydney for about ten years before coming back to Eden. He is currently unemployed but has training in the hospitality industry locally.

13. He did not have his first drink until he was an adult and indeed drinking -which is now a problem - did not become so until only a couple of years ago. At the time of these offences he was consuming with others with whom he shared three or four cartons of Moselle a day.

14. The author of the pre-sentence report concludes that Mr Aldridge “is a young man who appears to have unresolved issues which involve feelings of anger. He also admits to a problem with alcohol and he said in interview that he is willing to address these issues.” The report assesses him as unsuitable for either a Community Service Order or a Periodic Detention Order. The former is because of the alcohol issues which need to be addressed and the latter is because of the transport problem. It does however assess him as suitable for a medium to low level of supervision which would address issues of unresolved anger and problems with alcohol misuse.

15. Mr Edmunds called his client who gave sworn evidence before me. He explained his difficultly in seeking work but said that he hoped to secure some employment in Rockhampton in the near future. He confirmed the encounter with his biological parents being a very difficult event. He resorted to alcohol in order to cope with the family issues and other issues in his life. He explained his failure to appear on 22 May last year because he was on his way from Mildura and got stranded in Lakes Entrance. He has spoken to a counsellor recently who recommends rehabilitation for his alcohol problem. He said he is definitely prepared to undertake that. He is prepared to be assessed for a residential rehabilitation program. He acknowledges that he comes from a good family and that being now twenty nine he does not understand what is going on inside him and the issue of his biological parents has obviously had a big impact but he would prefer to leave it as it is now.

16. As I said the Magistrate imposed a sentence of seven months with a non-parole period of two months for the assault occasioning actual bodily harm. Mr Edmunds on behalf of his client submits to me that a more appropriate sentence for that offence would be a sentence of seven months but for it to be suspended. That is an alternative to his primary submission which is for a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999.

17. I did not regard a bond as an appropriate penalty for the more serious offence of assault occasioning actual bodily harm. Mr Stewart was attacked with a metal bar. Mr Aldridge does have a record, although minor involving personal violence. To my mind that is sufficiently serious and there are no options such as periodic detention and a community service. To my mind I am left with little choice but to impose a sentence of imprisonment for this offence and I regard the period chosen by the magistrate of seven months as appropriate. It reflects the level of seriousness of the particular offence.

18. However there is a second question of how I order that Mr Aldridge should serve that seven months imprisonment. I have decided that it is appropriate that the sentence be suspended for the whole of the period. This means that Mr Aldridge will have an opportunity to actively pursue his rehabilitation. It could be a very important time in his life. He is now, as I said, twenty nine and acknowledges that his drinking has increased just over the last few years and is prepared to undergo a residential rehabilitation course.

19. The advantage of this sentence is that it involves a custodial sentence but it is suspended. In the event that the bond is breached then he is more than likely to go to gaol. Mr Stanley for the respondent prosecutor has submitted that I may consider a bond under s 9 of the Crimes (Sentencing Procedure) Act in respect of the other offences. That would enable me to fix a longer period for the purpose of supervision. Mr Edmunds does not disagree with that submission. I too agree with the submission and am inclined to impose for all of the other offences a bond of two years which will have conditions attached to it which will encourage Mr Aldridge in his rehabilitation.

20. Accordingly I propose to allow his appeal. The formal orders which I make are as follows. Under s 20(2)(a) of the Crimes (Appeal and Review) Act 2001 I determine this appeal against sentence by setting aside the sentence of the learned magistrate. Instead of that sentence, for the offence of assault occasioning actual bodily harm I impose a sentence of imprisonment of seven months but I make an order suspending the execution of the whole of the sentence for the whole of the period and I direct that Mr Aldridge be released from custody on the condition that he enters into a good behaviour bond for the period of seven months.

21. The good behaviour bond is to be subject to the following conditions -
1. that Mr Aldridge will be of good behaviour for the duration of the bond;
2. that he will appear before the court if called upon to do so at any time during the bond;
3. that he will notify the Registrar of this court of any change of his residential address;
4. that he will subject himself to supervision by the New South Wales Probation and Parole service and accept any reasonable recommendations made by them to address issues of unresolved anger and problems with alcohol misuse. Mr Aldridge is to report to the Probation and Parole office at Bega on or before next Wednesday 20 February 2008 at 4pm.

22. In respect of each of the other four offences - two common assaults, a malicious damage and a failure to appear under s 9 of the Crimes (Sentencing Procedure) Act - instead of imposing a sentence of imprisonment I make an order directing Mr Aldridge to enter into a good behaviour bond for a period of two years to date from today. The bond is to be the subject of the same conditions as the s 12 bond. Is there anything I have left out Mr Edmunds, any orders I have not made that I should make?

EDMUNDS: I think that covers it your Honour.
HIS HONOUR: Mr Stanley?
STANLEY: No your Honour.

23. Mr Aldridge I have to explain this to you, a number of people will explain this to you. Mr Edmunds will and somebody in the Registry will but I am obliged to. As I have said you have won your appeal and I have kept the sentence at seven months for when you hit Cormac with the metal bar because that is a serous offence but I have suspended it, suspended it for that seven months and I have given you a bond for that period and you have heard me list what you have to do. The most important thing is that you turn up in the next week to Probation and Parole and get their guidance and assistance for your alcohol problem and any other issues. And if they recommend residential then you should take that seriously and do accept their recommendations provided they are reasonable. For the other offences I have given you a bond for two years. So you are under supervision for two years and the document which you will be asked to sign will list the conditions but it includes supervision by Probation and Parole. If you breach the suspended sentence you are in serious trouble. You come back before the court probably me and it is difficult to stay out of gaol for a suspended sentence, it is not quite automatic but it is very hard to convince a judge or a magistrate for someone who breaches a suspended sentence that they should not go to gaol. Do you understand that?

OFFENDER: Yes.

HIS HONOUR: Good luck.

EDMUNDS: And that supervision can be transferred to Queensland when everything is fine.

HIS HONOUR: Good, that is good. You just wait around Mr Aldridge and I will sign an order and you will go to the Registry and they will explain it to you there.

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