R v Grassi

[2025] NSWDC 165

District Court

New South Wales

Medium Neutral Citation:

R v Grassi [2025] NSWDC 165

Hearing dates:

21 March 2025

Date of orders:

5 May 2025

Decision date:

05 May 2025

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

122 I make the following orders:

(1)      The offender is convicted of the offence.

(2)      The offender is sentenced to 4 years imprisonment, commencing 19 June 2024 to expire on 18 June 2028. I impose a non-parole period of 2 years 7 months to expire on 18 January 2027. The earliest possible date of release is 18 January 2027.

Catchwords:

SENTENCING – sentence following guilty verdict

CRIME — violent offences — recklessly cause grievous bodily harm — defence of self-defence rejected

SENTENCING — relevant factors on sentence — circumstances of offence – street violence – lack of regard for victim’s wellbeing — substantial harm, injury, loss or damage suffered by victim — traumatic brain injury suffered by victim

SENTENCING — mitigating factors — insignificant record of previous convictions — offender’s submissions on remorse not accepted by court – mental health – impact of upbringing — quasi custody

SENTENCING — subjective considerations on sentence — drug addiction

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v R [2013] 249 CLR 571

DC v R [2023] NSWCCA 82

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Hoskins v R [2021] NSWCCA 169

Klajic v R [2023] NSWCCA 225

LA v R [2021] NSWCCA 136

Leigh Brown v R [2014] NSWCCA 335

Muldrock v R (2011) 244 CLR 120

R v De Simoni (1981) 147 CLR 383

R v Henry [1999] NSWCCA 111

R v Olbrich (1999) 199 CLR 270

R v Storey [1998] 1 VR 359

Regina v Henry (guideline judgment on armed robbery) [1999] NSWCCA 111

Regina v Mitchell, Regina v Gallagher [2007] NSWCCA 296: (2007) 177 A Crim R 94

Waterfall v R [2019] NSWCCA 281

Category:

Sentence

Parties:

Crown, Matteo Grassi

Representation:

Crown: S Healy

Offender: G Goold

File Number(s):

2022/00167964

JUDGMENT

1. The offender is to be sentenced with respect to one offence following a trial in which the offender was found guilty.

2. The offence for which the offender is to be sentenced is as follows:

Count 1 – Causing grievous bodily harm to a person and being reckless as to causing actual bodily harm to a person contrary to s 35(2) of the Crimes Act 1900.

This offence carries a maximum penalty of 10 years imprisonment with a standard non parole period of 4 years.

3. The maximum penalty for this offence acts as a sentencing guidepost of reference point. Section 54A(1) of the Crime (Sentencing Procedure) Act 1999 (CSPA), provides that the standard non parole period is that which is included in the table of provisions. Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence that falls within the middle range of objective seriousness taking into account only the objective factors affecting the relative seriousness of the offence. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. The fixing of a non-parole period is only one aspect of the task when determining what is an appropriate sentence.

4. Admitted on behalf of the Crown were the following:

1. Exhibit C1: Indictment

2. Exhibit C2: Summary of evidence at trial consistent with the verdict of the jury

3. Exhibit C3: Criminal history

4. Exhibit C4: Custodial history

5. Exhibit C5: Letter from the Victim’s Disability Support Coordinator

6. Exhibit C6: Victim Impact Statement of Trae Mason dated 28 January 2025

5. Admitted on behalf of the Offender were the following:

1. Exhibit O1: Apology Letter

2. Exhibit O2: Forensic report

3. Exhibit O3: Affidavit of Camille Grassi, mother of the Offender

4. Exhibit O4: Reference Aaron Moore

5. Exhibit O5: Letters from the Glen

6. Exhibit O6: Medical material relating to Trae Mason

7. Exhibit O7: Letter from Mark Windon OAM

8. Exhibit O8: Letter from Steve Frost

9. Exhibit O9: Letter from Todd Clarke.

Findings of fact

6. In making relevant findings of fact for the purposes of sentencing I must not take facts into account in a way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt. However, to the extent that facts in favour of the accused are to be taken into account on sentencing it is sufficient if those circumstances are proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at 281 at [27]; R v Storey [1998] 1 VR 359 at 369.

7. The Crown prepared a summary of facts from evidence at trial. The offender takes issue with the facts as summarised. My findings of fact for the purposes of passing sentence are as follows, consistent with the guilty verdict.

8. The offence was committed on 8 June 2022. The victim attended the Matraville Hotel (the hotel) with a group of friends (Baylun Williams-Pinkie, Alexander Reed, Jake Anthony and Reece Buchman) after watching the State of Origin rugby league match. At 11:24pm, the offender was captured on CCTV footage, admitted in trial, entering the hotel.

9. There were various interactions between the accused and the victim’s group which was the subject of evidence during the trial. It is unnecessary to make specific findings as to what occurred during this time. I accept the submission by Mr Goold on behalf of the offender that its relevance is limited to providing some context to the later interaction the subject of the offence. The relevant context characterised by Mr Goold, which I accept, is that the interactions at the hotel may have contributed to the heated exchange that took place immediately prior to the later fight between the accused and the victim.

10. The victim and his group of friends, including Williams-Pinkie and Reed, as well as Jake Anthony and Reece Buchman, left the establishment at 12:06 am. A group involving the offender, the two unidentified males and approximately three to four more males followed the victim’s group outside and, while no physical fights broke out, the groups were separated by security. The group involving the offender then returned inside the hotel.

11. After spending a period drinking at Reed and Williams-Pinkie’s house in Matraville, the victim, Williams-Pinkie and Reed decided to walk back to the Matraville Hotel.

12. In the meantime, the offender had left the hotel and walked a short distance (approximately 50 metres away) to the House of Pie, a takeaway food shop.

13. At approximately 1:20am, the victim, Williams-Pinkie and Reed (the group) walked past the House of Pie, where the offender and an unidentified male were standing outside. The events thereafter, leading to the assault on the victim, were captured on CCTV from a camera located at the adjacent bus stop.

14. The group initially walked past the offender before a verbal exchange resulted in the offender, his male companion and the group coming together. There was a further verbal exchange between the offender, Williams-Pinkie and the victim. The offender propositioned the victim for a fight to which the victim agreed.

15. The offender thereafter initiated the physical interaction with the victim by pushing the victim with an open hand on his chest resulting in the victim moving backwards. The offender then removed his cap and threw it on the ground before stepping towards the victim in an aggressive manner. The offender ignored Williams-Pinkie who placed his hand on the offender's chest in a non-aggressive fashion, no doubt in an attempt to dissuade the offender from further engaging in a physical altercation.

16. The offender then proceeded to kick the victim with his left foot before shaping up for a further assault on the victim. The victim thereafter retaliated by swinging his fists in the direction of the offender's head. After a brief pause in the fight the offender essentially shaped up for a further physical interaction. I do not accept the submission made on behalf of the offender that his stance at this point was passive. Rather, I am satisfied beyond reasonable doubt, given the offender’s aggressive demeanour up to this point in time, and his body language, depicted in the CCTV, that the offender essentially egged the victim on to engage in a further physical fight.

17. The offender then delivered a forceful kick using his left leg to the victim's head which had the effect of whipping the victim's head towards an adjoining wall. The first kick was followed shortly thereafter with a second kick to the victim's head in the absence of any form of aggression from the victim. The victim then stepped towards the offender with the offender stepping back. The offender then delivered a blow with his left fist to the victim's head which is quickly followed by a further kick to the victim's torso, followed quickly thereafter by a further punch to the victim's head, resulting in the victim being unbalanced. Whilst the victim is attempting to regain his balance the offender delivered the final forceful kick to the victim's head resulting in the victim falling to the ground unconscious.

18. I do not accept the offender’s submission that the victim’s stance immediately prior to the delivery of the final kick was one of aggression. Rather, I am satisfied that the victim was doing no more than attempting to regain his balance as a consequence of the second last kick which had been delivered to his torso and the punch to his head.

19. With the victim unconscious on the ground the offender retrieved his hat and watch before entering into a further exchange with the victim's companions.

20. I accept the evidence of the victim's companions, Williams-Pinkie and Reed, that after the victim had collapsed to the ground unconscious, bleeding from his ears and nose, the offender was bragging by saying words to the effect that he got the victim with one arm/one hand. I do not accept, as was suggested to Reed and Williams-Pinkie, that the accused was saying no more than he had one arm. Both witnesses were adamant, when challenged, that the offender’s demeanour and words spoken by him were to the effect that the offender was bragging and/or celebrating his achievement of taking the victim down with only one hand/arm. Their evidence was generally consistent. To the extent their evidence was in any way inconsistent with versions provided to attending police, I accept their evidence that they were in shock, having observed their friend being severely assaulted and suffering what would have no doubt been considered life-threatening injuries, given the victim was unconscious and was immediately bleeding from his ears and nose. Their evidence, to the extent it is discernible, is consistent with the offender’s demeanour depicted in the CCTV footage.

21. The victim is attended to by Williams-Pinkie and Reed, during which time the victim is bleeding profusely from his ears and mouth.

22. The offender returned to the hotel for a short period before returning to the footpath outside with the unidentified male. The CCTV footage shows the offender looking in the direction where the victim remained unconscious with his companions. The footage depicts the accused remaining outside the hotel on the footpath until the ambulance arrives to attend to the victim. The ambulance drives directly past the offender standing on the footpath. The offender watches the ambulance until it stops to attend to the victim, immediately following which the offender and his male companion walk in the opposite direction to where the victim and his friends are located with the attending ambulance.

Victim impact statement

23. The victim impact statement of Trae Mason was read out in Court by the victim, accompanied by a witness support person. The statement details the hardship the victim has endured in the aftermath of the offence, and in particular the effect of the traumatic brain injury on his life and well-being.

24. Mr Mason has felt socially isolated and unable to connect with others as a consequence of his injuries and the emotional toll the attack has taken on him, noting he has suffered anxiety, depression, post-traumatic stress disorder, and significant difficulties sleeping. He described experiencing seizures, being on dialysis due to renal failure, and undergoing numerous surgeries, pointing out in court where he has been left with physical scars. Mr Mason also stated that his cognitive impairments have rendered him unable to continue working, noting he faces a lifetime without income and without the ability to provide for himself and his family. The victim also referred to feelings of guilt arising from his mother and sisters having relocated from Newcastle to care for him.

The victim’s injuries

25. In addition to the injuries outlined by Mr Mason in his Victim Impact Statement, the Crown tendered a summary of the evidence at trial consistent with the verdict of the jury (Exhibit C2) which further outlines Mr Mason’s injuries.

26. The victim suffered a bilateral mandible fracture, meaning a fracture of the jawbone in two places treated by an open reduction and internal fixation. Screws and wires were inserted into the victim’s jawbone to assist the healing. The victim also suffered a brain bleed, requiring part of his skull to be removed. He needed to wear a special helmet while the bleeding subsided. As a consequence of the head injury the victim suffered a traumatic brain injury, requiring occupational therapy, rehabilitation, and neuropsychological assessment. He experiences ongoing symptoms including cognitive impairment, anxiety, sleeplessness, and seizures which require ongoing support from disability support services.

27. Andrea Narain, the support coordinator with the Acquired Brain Injury Services, had been supporting the victim for the previous five months to the report (18 December 2024). The report noted that since the assault the victim had continued to experience ongoing seizures and other complications. He had endured multiple tonic-clonic seizures which were unpredictable and debilitating, often causing the victim to lose control of his body, leaving him unconscious and disorientated. The ongoing risk of seizures had left the victim unable to drive, swim or even have a bath. It is necessary for the victim to monitor his diet and stress to avoid triggers. The report notes, consistent with the victim impact statement, that the victim’s disabilities had impacted on his ability to live independently. He required ongoing support for basic activities.

28. I have also had regard to the additional medical documents relied on by the offender which confirmed that after an initial period of treatment, the victim required no further brain injury rehabilitation. Further, the medical documents demonstrate that the offender had made a good recovery from his fractured jaw.

Criminal history

29. The offender’s criminal history prior to the index offence is relatively limited. In August 2016, at the age of 18, the offender was convicted of drive with low range PCA. There was a further driving offence in January 2017 of drive whilst cancelled.

Subjective evidence

Letter from the offender

30. The offender writes of being “really sorry” that the victim was injured in the fight they had, and sorry for the victim’s ongoing injuries. He acknowledged that the victim’s injuries would make his life harder, expressing his regret. However, at the time of writing the letter, the offender fails to appreciate the permanency of the victim’s injuries, closing the letter with:

“I will not forget what has happened to Trae and hope that his injuries heal, and he can move on and achieve his goals.” (Emphasis added)

31. Whilst accepting the jury’s verdict, the offender maintained his belief that he had been fighting in self-defence. He did however acknowledge that by being prepared to fight, he made himself responsible for the injuries caused. He also accepted that his intoxication was no excuse. It has caused him to reflect on his habits with alcohol, and that he benefitted from his stay at Glen Rehabilitation Centre.

32. The offender noted the emotional difficulty he experienced when his grandfather, with whom he had lived, became unwell, acknowledging that he had mixed with the “wrong people.” Referring to the trial period, the offender acknowledged that he had difficulty dealing with the pressure and expressed remorse for trying to “run away” rather than “facing the consequences of [his] own actions.”

33. The offender stated that his well-being had improved since the jury’s verdict, and that he planned to resume work as a carpenter and support his family upon his eventual release.

Report of Shannon Burgess, psychologist

34. The offender was assessed by Ms Shannon Burgess, psychologist, via Audio Video Link on 15 January 2025 and 31 January 2025. Ms Burgess described the offender as appearing comfortable and being forthcoming with information.

35. The offender reported that he was the eldest of three boys who was born in Switzerland where he spent his first 10 years before relocating to Australia with his mother and younger twin brothers. His father was of Swiss heritage and a world-class soccer player whilst his mother was an Australian having previously worked as a model. His childhood in Europe was somewhat transient noting that his family relocated annually to support his father's soccer career.

36. His parents separated in his pre-teenage years due to his father's difficulties with gambling, alcohol and drugs. Further his father was verbally and at times physically abusive towards his mother and the three boys. However, the offender described his mother as being loving, supportive, affectionate and unwavering in her support. He was also supported by his maternal grandparents, particularly his grandfather who had since passed. The offender returned to Switzerland around the age of 20 in the hope that he would be able to reconnect with his family. He also completed mandatory military service.

37. The offender described his father as being physically absent throughout his life, even when his parents were together, with him being neglectful and abusive when present. The offender described to the psychologist that his resort to drugs and alcohol was in the context of the repeated failures to establish any true relationship with his father.

38. The offender attended primary school in Switzerland until the age of 10 before moving to Australia. He actively engaged in various sports. He was ‘okay’ academically and left school at the age of 16 before commencing a carpentry apprenticeship. However, he took longer to complete his apprenticeship due to absences from work in the context of “partying" on weekends and his relocation to Switzerland whilst conscripted to the army.

39. The offender described a sporadic work history since his return from Switzerland in the context of his party lifestyle which resulted in the loss of various jobs. The offender also referred to his several attempts at drug rehabilitation, including various programs, some of which were residential. However, he told the psychologist about several relapses including the most recent escalation in his drug activity where he commenced using ice and spiralled further out of control. It was in this context that he failed to appear for the trial.

40. The offender referred to using alcohol from the age of 16 and whilst undertaking his apprenticeship was introduced to cocaine. Over time his drug usage escalated into MDMA and ecstasy and referred in further detail to his unsuccessful attempts at rehabilitation and drug abstinence. The offender referred to a psychological history of at times experiencing low mood, an inability to sleep commencing in his teenage years. There were previous references to experiencing high stress and moderate anxiety. At the time of the offence the offender was being medicated with Endone due to a broken hand, having falling and whilst intoxicated the week prior.

34. The claimant's mother confirmed that she had left a domestically violent relationship with the offender’s father, being subjected to physical and verbal abuse as well as financial control. She referred to the difficult childhood experienced by the offender and his brothers because of the separation and the offender’s father's attitude towards his sons. Ms Grassi also referred to several incidences which occurred when her sons were under the care of their father.

35. The offender specifically denied instigating the fight given his diminished capacity with a broken hand. The offender told the psychologist that it was a fight in which he was defending himself and he denied any malicious intent to harm the victim. The offender reported “being regretful for the way the night unfolded". He acknowledged that the victim suffered “an extreme injury" and that he “never wish that for him". Whilst the offender did not seek to place blame on the circumstances pertaining to his physical or mental health at the time, “he maintained that he was purely acting in self-defence, having felt outnumbered by the victim and his associates." He further alleged that he had reported “feeling vulnerable" and somewhat “powerless" to defend himself due to his right hand being broken and in a cast. He claimed that in this context the only way he could defend himself with his broken hand was to kick the victim to keep him at bay. Whilst he noted the finding of guilt, he claimed that this finding was impacted by his failure to attend court.

36. Ms Burgess opined, given the difficult relationship with his father, that the offender developed a coping strategy whereby he suppressed his core needs, enabling him to avoid the distress that was inevitable when experiencing a traumatic and dysfunctional relationship with a parent. To this was added demands of assimilating into a new culture resulting in the offender feeling the need to maintain a level of stoicism. The psychologist concluded that it was in this context that the offender utilised alcohol and drugs as a form of coping from the age of 16 onwards.

37. The psychologist diagnosed the offender as having suffered cyclothymic disorder, being a diagnosis given to adults who experience at least two years of both hypomanic and depressive periods without fulfilling the full criteria for an episode of mania, hypomania or major depression. Reported symptoms consistent with this disorder included impulsivity and difficulty associated with consequential reasoning which had been identified during periods of abstinence. Ms Burgess concluded the offender's decision to consume alcohol whilst on Endone on the night leading up to the offence was consistent with this disorder. The psychologist further concluded: –

"His perceived helplessness associated with his broken hand, coupled with his cyclothymic disorder (impulsivity) also explains his poor decision-making to kick the victim (which he maintains was in self defence), thereby leading to the commission of the index offence. Accordingly, this assessment has revealed a direct nexus between Mr Grassi's underlying, comorbid mental health conditions and the index offence"

45. The offender was also separately diagnosed with alcohol use disorder severe, without physiological dependence, and cocaine use disorder, severe, without physiological dependence.

46. The report recounted the offender’s attempts to abstain from drugs and alcohol, noting that while the offender made numerous attempts at rehabilitation, he had not been able to maintain abstinence for longer than a 10-month period and had thereby never achieved sustained remission. The report noted that the offender’s cyclothymic disorder, previously undiagnosed and untreated, had likely undermined his ability to benefit from his attempts at abstinence, and had “repeatedly served as a driver to his substance misuse.”

47. It was observed that Mr Grassi had struggled to hold down employment in the past due to his abuse of illicit substances, though he denied ever being unemployed for a period exceeding two weeks. The offender had obtained employment in custody, and was confident he would gain employment upon eventual release.

48. He was uncertain about his living arrangements after his time in custody, acknowledging the strain on family members, and contemplated relocation as a way of supporting sustainable changes in his life.

49. It was noted that the offender had no prior criminal history as an adult. As raised by the Crown in written submissions and traversed by parties at the sentence hearing, this does not encompass the offender’s criminal offending which took place after the subject offence.

50. The psychologist observed that the offender’s prospects of rehabilitation were good and his risk of recidivism was low, given the absence of criminal history as an adult (prior to the subject offence), his strong connection with his family and their ongoing desire to support him, his desire to address his underlying psychological issues coupled with his long-standing help-seeking behaviours, his desire and confidence in becoming gainfully employed upon release, and his genuine regret that the incident occurred.

Camille Grassi, offender’s mother

51. Ms Grassi left the offender’s father, Marco Grassi, due to Marco’s abuse of cocaine and his verbal and physical abuse of Ms Grassi and the couple’s children. Ms Grassi described the environment that she and the children were exposed to as “unacceptable” and “toxic”.

52. The offender and his two brothers returned to Switzerland in his early teenage years to see his father, at which time the offender’s father exposed all three children to his drug-taking activities. The offender’s father had also provided drugs to the offender when the offender was 17 years old. Ms Grassi noted that each time her children returned from Switzerland they appeared to have been negatively affected by their experience, and that all her children have experienced issues subsequently, including substance abuse, prescription drug abuse, imprisonment and mental health diagnoses. The offender’s paternal grandfather was also alcohol-dependent.

53. It was Ms Grassi’s evidence that, on the night of the offence, the offender returned home appearing “distressed and distraught”, telling her that he had been in a fight and he felt “really bad”. She referred to the impact on the offender of the his grandfather’s passing resulting in a further relapse into drug use.

54. Ms Grassi acknowledged that the offender had been using ice in the period prior to the trial which accumulated in the offender not appearing at Court for several days and ultimately having his bail revoked. This occurred in the context of a further work injury complicated by repeated infections and reliance on heavy painkillers. Ms Grassi observed that the offender “clearly deteriorated” and “in some respects was saved by being put into custody.” Since the offender’s incarceration, he often speaks to Ms Grassi about Mr Mason and how sorry he feels for him and the injuries he received. The offender has found it difficult to how “putting himself in the fight was not self-defence”.

55. Ms Grassi has spoken to her friends in the local community and states these friends want to support the offender upon his eventual release from custody. She notes also the offender has made a commitment to remaining drug and alcohol free.

56. Ms Grassi was cross examined on the sentence. Ms Grassi reaffirmed her belief that the offender was distraught and remorseful on the night of the offence. It was put to Ms Grassi that the offender’s demeanour in the CCTV footage immediately after the altercation did not reflect the offender being distressed and distraught, to which Ms Grassi disagreed. When it was suggested to Ms Grassi that the CCTV footage of the offender on returning to the Matraville Hotel after the incident did not reflect the offender being distressed and distraught, Ms Grassi noted that the offender had been drinking and stated that she believed he was distressed and distraught, even if it wasn’t “showed clearly”.

Letter from Aaron More

57. Mr More has known the offender for approximately 10 years and resides in Terrigal, within proximity to The Glen Drug and Alcohol Rehabilitation Centre (The Glen), where the offender has previously participated in rehabilitation programs. Mr More has confirmed that he would allow the offender to reside with him in Terrigal on the his release from custody. Noting that he himself attends Alcoholics Anonymous & Narcotics Anonymous meetings and is now in his eighth year of sobriety, Mr More affirmed that he would ensure that the offender stays engaged with The Glen program and that he maintains his responsibilities to his future court proceedings. Mr More states that he would not allow any drugs, alcohol or violence at his residence.

Letters from The Glen

58. Four letters from The Glen were tendered on behalf of the offender, dated 22 May 2023, 30 June 2023, 7 December 2023, and 26 February 2024 respectively.

59. The letters traverse the offender’s completion of a 12-week residential program between 12 December 2022 and 4 March 2023, followed by his movement into an extended stay in the transition program, from 4 March 2023 to 4 July 2023. The letters also traverse a separate stay at The Glen for a further 12-week residential program commencing 15 December 2023, for which the offender was deemed suitable for discharge on 26 February 2024 pending bail variation.

60. While at The Glen, the offender had participated in group counselling, one on one counselling sessions, anger management, relapse prevention, relationship programs, work programs, sport programs, nightly AA and NA meetings, gambling workshops and regular sessions with a therapist. The letter dated 26 February 2024 confirmed the offender had passed all random urinalysis tests he had been required to provide. The offender was described as a “positive client”, displaying an “open and respectful attitude” and being a “positive role model for other clients”.

Letter from Mark Windon OAM

61. Mr Windon has known the offender since he was a young child and witnessed him struggle amidst his family breakdown and his father’s absence. Mr Windon has known the offender to be a sensible and mature person and described the offender as showing considerable remorse for his actions in injuring Mr Mason.

62. Mr Windon stated that the offender would receive support from his extended family and local community to help rebuild his life upon release.

Letter from Steve Frost

63. Mr Frost is a Project Manager at Infinity Constructions Group Pty Ltd and is married to the offender’s cousin. He assisted the offender in securing a job in early 2024, and recalled the offender being a hard-working employee who was put through extra training in order to progress his career within the company. Mr Frost spoke highly of the offender’s work ethic, describing him as being friends with a number of his fellow workers. In the family setting, Mr Frost described the offender as being polite and friendly.

Letter from Todd Clarke

64. Todd Clarke is the Director of City Services with Randwick City Council and has known the offender for more than 15 years. Mr Clarke states that in discussing the offending with the offender, he is “certain” the offender understands the situation and regrets his actions.

65. Mr Clarke had been in regular contact with the offender in the months leading to the trial, and noticed the his reliance on alcohol to deal with trauma. Mr Clarke noted the emotional toll that the offender’s father’s absence, and the death of the offender’s grandfather, has had on the offender. Mr Clarke stated that the offender was “fully aware” that he will need to implement better coping mechanisms to constructively deal with his trauma. The offender had expressed deep remorse for his offending, both in relation to the impact it has had on the life of him and his family, and for the impact it has had on Mr Mason and his family.

66. Mr Clarke oversees the operations, construction and maintenance of public assets for the Randwick City Council, and states he “would not hesitate to employ” the offender, based on his values and professional skill set.

Crown submissions

67. The Crown contended that deterrence was a significant factor when sentencing for violence on the street or in public places, particularly where committed by young men under the influence of alcohol or drugs, citing Regina v Mitchell; Regina v Gallagher [2007] NSWCCA 296. Further, the result of the offender’s conduct, being the seriousness of the injuries suffered, carry significant weight in determining the objective gravity of the offence. The degree of violence involved in the offence is also a relevant consideration.

68. It was submitted that a discreetly aggravating factor pursuant section 21A(2)(g) of the CSPA is that the offence caused substantial injury, emotional harm, loss or damage.

69. The Crown submitted that the Court would not find a mitigating factor of remorse under s 21A(3)(i) of the CSPA, citing multiple items of evidence where the offender did not admit his culpability in causing the victim’s injuries, though he expressed concern for Mr Mason’s condition. On the offender’s risk of reoffending, the Crown referenced the offender’s criminal offending which took place after the subject offence, which was not referred to in the report of Ms Burgess. The Crown referred to numerous factors which would indicate that the offender has a high risk of reoffending, including the offender’s pre-disposition to alcohol and drug addiction, the offender’s above average testing for hyperactivity and impulsivity, Ms Burgess’ finding that the offender exhibits “egocentric traits”, and that the offender has not received treatment for his issues of violence.

70. The Crown acknowledged the findings of Ms Burgess and noted that the offender’s mental state indicated that he was entitled to consideration under the principles set out in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1 at [177].

71. The Crown also noted that long-term use of alcohol or drugs is not a matter of mitigation: Regina v Henry (guideline judgment on armed robbery) [1999] NSWCCA 111. It was contended that, although the offender may have taken endone and alcohol on the night of the offence in order to “self-medicate” his mood disorder, that decision was not a matter of mitigation as regards his decision to commit the offence. It would not reduce the significance of general deterrence and community protection with respect to street violence.

72. The Crown maintained that the s 5 threshold had been crossed and no sentence other than imprisonment was appropriate, and that the duration of an appropriate sentence would preclude an intensive correction order being an available outcome.

73. In oral submissions, the Crown referred to the observations of Howie J in Regina v Mitchell; Regina v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94 at [27] that the nature of the injuries suffered to a very significant degree determined the seriousness of the offence. The Crown relied on the “devastating” and “long-term” impacts the offending has had on the victim in contending that Mr Mason’s injuries were “sufficiently far above” a standard of grievous bodily harm as to make out substantial injury, emotional harm, loss or damage in terms of s 21A(2)(g) of the CSPA.

74. It was contended that the offender presented a lack of genuine distress when observed in the 24 hours after the offence. The Crown conceded that Ms Grassi provided a strong pro-social relationship to the offender which elevated the offender’s prospects of rehabilitation to an “average” standard, where his prospects would otherwise be “poor”. The Crown also conceded that, given the offender’s long struggle with overcoming drug and alcohol addiction, and that this is the offender’s first custodial sentence, the appropriate sentence should be one which would facilitate the offender to “keep trying” to overcome his addictions.

Offender’s submissions

75. In written submissions, counsel for the offender conceded it was “clear” that the offender caused grievous bodily harm to Mr Mason. It was submitted that there is no evidence permitting the Court to find beyond reasonable doubt that the offender caused Mr Mason to enter into the physical altercation against his will. Mr Mason can be seen on the CCTV footage to have rolled up his sleeves and engaged in the physical altercation, and in doing so, threw punches and was prepared to inflict injury on the offender despite the “obvious” injury to his arm requiring the wearing of a plaster cast. Counsel submitted that the evidence established beyond reasonable doubt that at the time the offender used one of his feet in the altercation, the offender was moving backwards, and Mr Mason was advancing towards him. Once Mr Mason had been knocked down by the final kick and could no longer defend himself, the offender desisted from any further attack.

76. Counsel submitted that, given both parties consented to the physical altercation and both made attempts to strike one another, the recklessness as to actual bodily harm required to be proved against the offender would have been present in the conduct of Mr Mason, and that both men had assumed a level of risk commensurate with the level of risk involved in an unrestrained and illegal street fight. Counsel submitted that the objective seriousness would therefore fall substantially below the mid-range.

77. Relying upon the report of Shannon Burgess, it was contended that there was a relevant connection between the offender’s underlying mental health conditions and the relevant offence.

78. It was submitted that the objective seriousness would be considered in the context that the victim was prepared to engage in a physical altercation and was therefore subject to the same assumption of risk applicable to the offender.

79. Mr Goold referred to the observations of Cavanagh J in Waterfall v R [2019] NSWCCA 281, where his Honour observed that there was no absolute rule that the seriousness of the injuries sustained was necessarily determinative of the objective seriousness. It was contended there was no evidence to conclude that the offender was intent upon assaulting the victim in the absence of an agreement to fight and in circumstances where other persons in the immediate vicinity chose to allow the physical altercation to proceed. In all the circumstances it was contended that the objective seriousness fell within the low range.

80. Mr Goold did not accept any aggravating factors for the purpose of section 21A(2). As for mitigating factors the offence was not part of a planned organised criminal activity. The offender did not have any previous significant criminal convictions and would otherwise be found to be a person of good character, the offender was unlikely reoffend and had good prospects of rehabilitation. There were considerable expressions of remorse.

81. It was contended that the offender’s moral culpability would be reduced given the mental disorders referred to in the report of Ms Burgess and the offender’s dysfunctional upbringing. Accordingly, the offender was a less suitable vehicle for general and specific deterrence.

82. It was submitted that a finding of special circumstances would be made. Whilst the s 5 threshold had been crossed, it was contended ultimately that the Court would take into account the pre-sentence custody and the overall periods spent in residential rehabilitation following the offending. In those circumstances the offender, it was submitted, would be eligible for parole within a reasonably short period of the sentence being passed.

Consideration

83. The offender contended that a significant factor in determining the objective seriousness of the offence was the victim's willingness to fight, it being submitted that but for this fact there would not have been a fight at all. The offender relied upon the evidence of Williams-Pinkie, that at the time of the verbal exchange the victim effectively said, “let's do it" or “let's go".

83. However, a careful assessment of the evidence of Williams-Pinkie, Reed and the CCTV establishes beyond reasonable doubt that the offender was the aggressor who initiated the fight. Reed and Williams-Pinkie gave evidence, which I accept, that the offender said to the victim “I want to fight you". This is consistent with the CCTV evidence in which the offender, essentially, is in the face of the victim. Shortly thereafter the offender initiated the physical altercation by pushing the victim several times before throwing his cap and delivering the first kick. The offender ignored Williams-Pinkie's overtures to not fight, placing his hand on the offender’s chest after the offender made his initial moves of aggression towards the victim.

84. The offender thereafter delivered repeated kicks to the victim’s head and body. The assault involved a considerable degree of violence on the part of the offender in circumstances where the victim was demonstrating relatively ineffective resistance to the offender’s repeated blows and posed no real risk to him.

85. The offender's actions, involving repeated kicks to the victim’s torso and head area, in combination with the use of his left fist, demonstrated a very high degree of recklessness by the offender.

86. Whilst not seeking to offend the De Simoni principal (R v De Simoni (1981) 147 CLR 383), there was clearly significant recklessness as to causing actual bodily harm. Indeed, that recklessness must have included, on the part of the offender, an appreciation of the significant risk of serious injury to the victim because of his repeated kicks to the victim’s torso and head area, in combination with the use of his left fist.

87. The consequence of the assault is that the victim suffered not only a fractured jaw, but most significantly, a substantial traumatic brain injury leaving permanent and significant incapacity. I am satisfied that the circumstances reflect a serious example of the type of offending contemplated by the relevant offence.

88. I do not accept the Crown's submission that an aggravating factor, for the purposes of section 21A(2)(g), given the nature of injuries suffered by the victim, would ordinarily be encompassed in the concept of grievous bodily harm.

89. I accept as a mitigating factor (s 21A(3)(e)) that the offender does not have any significant record of previous convictions at the time of the commission of the offence and that he is otherwise of good character given the various testimonials in support. Further, I accept that the offence was not part of the planned organised activity (s 21A(3)(b)).

90. I do not accept the offender's submission that a mitigating factor for the purposes of s 21A(3)(i) is that the offender has shown remorse for the offence. The section provides as follows:

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows –

[…]

(i)    the remorse shown by the offender for the offence, but only if—

(i)  the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)  the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

(emphasis added)

92. The offender relies upon the statements allegedly made by him to his mother immediately following his return home after committing the offence. Particularly, Ms Grassi attested in her affidavit that the offender appeared to be distressed and distraught. He stated that somebody had been hurt and that he felt “really bad". He allegedly told his mother that he had been involved in an altercation and that he had defended himself.

93. Whilst I accept the offender may have been somewhat distraught or distressed on his return home, I do not accept that the offender’s presentation to his mother, or for that matter his statements to her, reflect any acceptance of responsibility for his actions or constitute any acknowledgement of any injury occasioned to the victim at that time. Such a contention is inconsistent with the offender’s conduct after the assault and prior to his return home.

94. I have found that immediately after the assault, whilst the victim was lying unconscious and bleeding from the ears and mouth, the offender was in effect bragging that he had felled the victim with only one hand. The CCTV video demonstrates, consistent with this evidence, that the offender had absolutely no concern for the victim immediately after the assault. He in no way sought to check on the victim's welfare. To the contrary, he returned to the hotel where it is apparent he intended to purchase a further drink (waiting at the bar for a period) before again leaving the hotel. Further, the CCTV evidence demonstrates that the offender remained outside the hotel, with the victim and his companions on the adjacent footpath within sight. Upon the arrival of the ambulance, the offender walked off.

95. Contrary to the alleged sentiments expressed to his mother, on the night of the assault the offender demonstrated a callous disregard for the welfare of the victim in circumstances where it would have been obvious that the victim had suffered significant injury because of his actions.

96. The claim of self-defence made to his mother is a claim which the offender has maintained ever since. Upon his arrest the offender claimed that his actions were in self-defence. The offender’s defence of self-defence at trial was unsurprisingly rejected by the jury, given the overwhelming evidence inconsistent with such a claim.

97. Despite the jury's verdict, the offender has continued to maintain he was acting in self-defence. As previously observed, the offender, when discussing the incident with Shannon Burgess, denied instigating the fight in circumstances where he had “diminished capacity with a broken hand". He maintained that he was defending himself and denied any malicious intent to harm the victim. He claimed acting in self-defence having felt outnumbered by the victim and his associates. He claimed “feeling vulnerable", and "powerless" to defend himself due to his hand being broken and in a cast and that the only way he could defend himself with a broken hand was to kick the victim in order to keep him away.

98. I am satisfied that these statements to the psychologist are patently untrue and deliberately so. To the contrary, the evidence overwhelmingly establishes that it was the offender who indeed instigated the fight. The evidence of the victim’s two companions, and the CCTV footage, is wholly inconsistent with the offender’s claim that he was feeling vulnerable or powerless to defend himself. The offender’s claim that again he was acting in self-defence in the context of feeling outnumbered by the victim and his associates is similarly wholly inconsistent with the evidence. The evidence establishes that at no time did the victim and his associates pose a threat to the offender. The offender's actions are inconsistent with the offender allegedly feeling vulnerable or powerless to defend himself. Further, the claim that he was only capable of defending himself by kicking the victim to keep him “at bay" is similarly inconsistent with the offender’s use of his left hand on at least one occasion during the altercation.

99. The offender did not give evidence on the sentence hearing. He relied upon an unsworn letter to the court. The offender’s expressions of remorse, and responsibility for his actions, contained in that letter, must be approached with significant caution in circumstances where it is an unsworn and untested statement. Further, the offender’s claims of remorse, and acceptance of responsibility, must be viewed in the context of the offender’s recent statements to the psychologist.

100. In the circumstances, I am not satisfied that the offender has accepted responsibility for his actions. Instead, he continues to justify his violent behaviour as self-defence, overwhelmingly contrary to the evidence.

101. Whilst I accept the offender has acknowledged the victim suffered injury and regrets the consequences of his actions, it is evident that the offender has not comprehended the seriousness of the injuries he inflicted on the victim. In the letter to the court the offender said, ‘I will not forget what has happened to Trae and hope that his injuries heal, and he can move on and achieve his goals’. The evidence of the victim's injuries and disabilities, disclosed in the agreed facts in evidence at trial, of which the offender clearly would have been aware, proves that the victim's injuries will never “heal" and he will be permanently denied the opportunity to lead any semblance of a normal life.

102. I do not accept the offender’s submission that a further mitigating factor is that the offender has good prospects of rehabilitation. True it is the psychologist found that the offender’s prospects of rehabilitation were high, and risk of recidivism was low. However, the psychologist was unaware of several pertinent facts which Shannon Burgess identified as relevant on this issue. As previously observed, the psychologist accepted at face value the offender’s self-justification for the circumstances of the offending, contrary to the true facts. Further, the psychologist was unaware of the offender’s offending in November 2023 of break and enter house and steal value less than $60,000, for which the offender was sentenced to a Community Correction Order. The offender’s criminal history reveals that eight months after this order was imposed, the offender was called up for breach of that order.

103. I accept the offender continues to have the support of his mother and friends/associates in the community, demonstrated by the subjective material. It is apparent that such support has generally been available to the offender in the past. Despite that support, the offender has made repeated, but generally unsuccessful attempts at rehabilitation. The offender’s most recent serious relapse prior to trial resulted in the offender failing to appear after the trial had commenced necessitating the issue of a bench warrant for his arrest. As Ms Burgess observed, despite the offender having sought repeated treatment for his addictions, he has been unable to maintain abstinence for longer than a 10-month period and has never achieved sustained remission. Whilst I accept the offender’s relapses are often associated with periods of stress, he may well experience other stressors in the future. This gives rise to some caution in assessing the offender’s prospects of rehabilitation.

104. Whilst I am not satisfied that the offender’s prospects are good, I accept that the prospects are not altogether hopeless. The offender, through the process of psychological assessment by Ms Burgess, has no doubt come to appreciate the context in which he has previously resorted to the use of illicit substances and engaged in antisocial behaviour. Further, the offender’s present incarceration, with resultant abstinence from drugs, will further assist his prospects of rehabilitation, in conjunction with the support of his mother and friends.

105. I accept the offender was exposed to a difficult home environment in his most formative years. This included witnessing his father's use of illicit substances and the abuse primarily directed at his mother and to an extent to the offender and his siblings. I further accept that despite his parents’ separation, and the subsequent move to Australia, he continued to be exposed to the adverse influences of his father in his teenage years. I accept, consistent with the opinions of Shannon Burgess, that the offender's difficult upbringing has resulted in the offender developing unhelpful coping strategies. I accept the offender’s moral culpability is reduced by reason of these childhood experiences: Bugmy v R [2013] 249 CLR 571; Hoskins v R [2021] NSWCCA 169.

106. However protection of the community remains relevant given the offender’s impulsivity and risk taking behaviour identified in the report of Ms Burgess.

107. Further, I accept that the offender’s resort to alcohol and drugs in his teenage years, which contributed to the offender’s offending, does have its genesis in the offender’s difficult childhood experiences, consistent with the opinion of Shannon Burgess: R v Henry [1999] NSWCCA 111; Leigh Brown v R [2014] NSWCCA 335.

108. I am further satisfied, consistent with the opinion of Shannon Burgess, that the features of impulsivity and risk-taking behaviour evident in a cyclothymic disorder were operating at the time of the offending such that the offender’s moral culpability is reduced, with the consequence of reduced weight being afforded to punishment and deterrence: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; Muldrock v R (2011) 244 CLR 120; DC v R [2023] NSWCCA 82 at [74] to [76].

109. That said, deterrence does remain a relevant factor in the overall instinctive synthesis in determining an appropriate sentence for this offence: Regina v Mitchell, Regina v Gallagher [2007] NSWCCA 296: (2007) 177 A Crim R 94. The sentence must reflect the Court's denunciation of offences of violence committed on public streets, including those perpetrated by persons under the influence of alcohol and/or drugs.

110. Considering the other purposes of sentencing contained in s 3A of the CSPA, the sentence must still ensure that the offender is adequately punished for the offence and must recognise the harm done to the victim.

111. I am satisfied that the s 5 threshold has been crossed and that no sentence other than imprisonment is appropriate.

112. I accept there are grounds for a finding of special circumstances such that there ought to be an adjustment of the statutory ratio of the non-parole period. This is in circumstances where the offence for which the offender is to be sentenced will reflect the offender’s first time in custody. Further, as is evident from the report of Shannon Burgess, the offender requires appropriate support and treatment with respect to the various issues identified in the report and that, self-evidently, the offender should be given every opportunity to access such treatment in the community.

113. The offender contends that the two periods during which the offender was in The Glen, being a residential rehabilitation facility, ought to be taken into account when determining the period for which the sentence is to be backdated. A determination of whether the relevant periods amount to quasi custody is a question of fact, taking into account factors such as whether the course was residential, the nature and extent of any discipline within the facility and the nature of any restrictions imposed whilst a resident.

114. The various letters produced by The Glen in evidence on the sentence hearing referred to the general nature of the residential rehabilitation program including the various workshops/sessions in which the offender was engaged.

115. Following sentence hearing, the Court requested further assistance from the parties as to the nature of the various programs at The Glen. Mr Goold provided further clarification as to the nature of these programs, in which the offender engaged, which I accept in determining this issue.

116. The first period of 15 December 2022 to 4 July 2023 was divided into two programs, the first being a 12-week residential program requiring the offender to commit himself to a fully secure residential facility. The second transition period provided for the offender’s absence to participate in a proved employment placement. The offender was placed with a builder and was able to carry out carpentry duties. He was however required to return to The Glen once his work commitments had finished for the day.

117. Accordingly, it was contended that both the first and second periods would qualify as quasi custody. The Crown contended that the first 12-week program would be considered as quasi-custody and the Court would allow 50% of this total period for the purposes of any backdating of sentence. However, for the transition period, it was contended that a reduced percentage of 25% of this total time would be allowed. Mr Goold, in reply, contended, citing Klajic v R [2023] NSWCCA 225, that a percentage substantially greater than 25% would be available during the employment period.

118. As previously observed, ultimately it is a question of fact on the material available to the sentencing judge. In LA v R [2021] NSWCCA 136, the Court determined, in circumstances not dissimilar to the period in which the offender was in the transition program, that the sentencing judge was not in error in failing to take this period into account. Having considered this, I accept the Crown submission that it is appropriate to allow a further 25% for the transition period.

119. I accept that with respect to the period 12 December 2022 – 3 March 2023, the offender should have the benefit of 50% of this time being counted towards appropriate backdating (41 days). For the period 4 March 2023 until 4 July 2023, I allow 25% of this total time for the purposes of backdating, being 30 days. For the period 15 December 2023 to 14 March 2024, I allow 50% of this total time for the purpose of backdating the sentence (46 days). The offender has otherwise been in full-time custody from the period 10 June 2022 to 23 June 2022 (14 days) and 29 October 2024 to 5 May 2025 (189 days).

120. Accordingly, the offender’s sentence is to be backdated by 320 days.

121. I consider an appropriate sentence is 4 years imprisonment with a non-parole period of 2 years 7 months.

Orders

122. I make the following orders:

1. The offender is convicted of the offence.

2. The offender is sentenced to 4 years imprisonment, commencing 19 June 2024 to expire on 18 June 2028. I impose a non-parole period of 2 years 7 months to expire on 18 January 2027. The earliest possible date of release is 18 January 2027.

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Decision last updated: 06 May 2025