R v Green

[2015] NSWDC 387

District Court

New South Wales

Medium Neutral Citation:	R v Green [2015] NSWDC 387
Hearing dates:	05/08/2015, 06/11/2015
Decision date:	04 December 2015
Jurisdiction:	Civil
Before:	Judge S Norrish QC
Decision:	Sentenced to a term of imprisonment of 7 years with a non parole period of three years. Sentenced to a term of imprisonment of 2 years.
Catchwords:	Criminal – Sentence, intend to cause grievous bodily harm, assault occasioning actual bodily harm in company, disputed facts, standard non parole period, special circumstances, expert evidence.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application (No 1), (2002) 56 NSWLR 147 R v Bloomfield (1998) 44 NSWLR 734 R v Hammoud (2000) 118 A Crim R 66 Muldrock v The Queen [2011] 244 CLR 120 Pearce v The Queen (1998) 194 CLR 610 R v Blackman and Walters [2001] NSWCCA Yardley v Betts (1979) 22 SASR 108
Category:	Sentence
Parties:	Director of Public Prosecutions – Crown Steven Mathew Green - Offender
Representation:	Counsel: Ms Ormonde-Hales - Offender   Solicitors: Director of Public Prosecutions – Crown M Orman Lawyer - Offender
File Number(s):	2013/00259157
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Steven Mathew Green appears today for sentence in relation to two offences to which he pleaded guilty at the Wagga Wagga District Court in early August 2015.

2. The crimes that he pleaded guilty to were, firstly, that he on 22 August 2013 at Junee in the State of New South Wales did wound Brad Allen with intent to cause grievous bodily harm to him. This is an offence contrary to s 33(1)(a) Crimes Act 1900. It carries a maximum penalty of 25 years imprisonment and has a standard non-parole period of seven years.

3. The second offence to which he pleaded guilty was an offence of assault occasioning actual bodily harm in company with Sean John Frederick Green, his brother, upon the victim Brad Allen, on the same date at the same place. This crime carries, accordingly to the cover sheet provided to me by the Crown, a maximum penalty of seven years imprisonment, and has no standard non-parole period.

4. I am required also to take into account a matter on a Form 1, an offence of affray, committed again on 22 August at Junee, which concerns itself in effect with the fight that occurred with the victim in the vicinity of the Junee Hotel, and is intimately connected to the facts to be found in respect of the wound with intent to cause grievous bodily harm and assault occasioning actual bodily harm matters.

5. In taking into account the matter on the Form 1 I do so in accordance with the guideline judgment of the Court of Criminal Appeal (Attorney General’s Application (No 1), (2002) 56 NSWLR 147), particularly the observations of the Chief Justice at [18]-[43]. In my view the matter on the Form 1 is not one which requires greater weight to be placed upon retribution and personal deterrence, as often will be the case with matters on a Form 1, given its character is subsumed into the criminality involved in the primary offence. I need say nothing more about the matter on the Form 1.

6. The facts on sentence were provided to me in a form where particular matters were “underlined” to identify what was said to be disputes between the position of the Crown and the position of the defence. The disputed facts were brought to my attention when the prisoner pleaded guilty at Wagga Wagga and the matter was remanded back to this Court for those disputes to be resolved. Mr Green appeared before me on 6 November 2015 and a large part of that day was spent taking evidence from a number of people to whom I will refer shortly, and reading statements, and other documents relevant to the subject matter of the oral evidence. The prisoner gave evidence and, as it transpired when all was said and done at the end of the evidentiary phase, the bulk of the submissions were concerned with the area of disputed fact. The submissions as to the actual technicality and scope of the sentencing exercise were relatively short.

7. The prisoner and Sean Green, as I said earlier, were brothers. I must point out in passing in order to deal with the disputed facts I need to go into some detail from the statement of facts. It is not a matter where I can deal with the agreed facts, so to speak, in summary form. The two brothers, and a man called Brad Allen - the victim of these crimes that I am concerned with - were all employed by a company responsible for rail track maintenance in The Riverina. The victim was in fact the direct supervisor of the Greens and it would appear to me, on the totality of the evidence, that there was some underlying tension existing between the victim and the prisoner particularly concerned with their working relationship, although it was not clearly articulated.

8. I make that observation as a reference to the content of the matter. I certainly draw no inference adverse to the prisoner to the effect that the prisoner was responsible for any discord that existed out of the working relationship. The character of the discord sat sub silentio in the proceedings and was not particularly addressed.

9. The victim was 27 years of age. The prisoner at the relevant time was 22, and his brother Sean was 19. The prisoner and his brother arrived in Junee, which is well known in The Riverina area as a “Railway Town”, on 11 August 2014 to conduct their work. The prisoner, his brother, and a number of other people working in the crew of about 16, undertaking track maintenance between Junee and Cootamundra, stayed at the Junee Motel. I have had a lot of oral evidence of the layout of this western side of the Junee township, and I have examined maps, and seen photographs and even a CCTV recording of relevant events, which has given me some understanding of the relationship of particular places one to the other.

10. Closer to the railway line and the railway station is the Junee Hotel. It is located at 17 Seignior Street, which appears to run parallel with the main Sydney/Melbourne railway line, and the hotel itself is almost directly opposite the Junee railway station.

11. The motel is further to the west of the railway line and according to the facts is about 350 metres from the hotel. The main thoroughfare that links Seignior Street to the motel is a street that is called Broadway Street. The victim, apparently to save some money, was staying in cheaper accommodation at the hotel.

12. I appreciate that the prisoner, and his brother, and everybody else working in the gang - once upon a time called fettlers - had worked hard during the day, and they came back to Junee at about 6pm and started to drink excessively after initially having some showers and something to eat. They drank at the Junee Hotel and the Green brothers were drinking with the victim. There were a number of other people drinking there amongst whom were their work colleagues.

13. The crew, if I can call them that, who stayed at Junee Motel had struck up apparently some friendship, or relationship, with two young women, Ms Moylan and Ms Philpott. Some time after 11.55pm the hotel closed and a number of members of the work crew, including the victim, the prisoners, and other men, as well as the two young women, went back to the motel for some socialising. I assume, being a Wednesday night as I understand it, the men had to get up early in the morning to go back to the maintenance of the railway track. But that did not seem to be inhibiting anybody’s ingestion of alcohol, or socialising, on this particular night.

14. I point out in passing a a statement from John Dargin produced on behalf of the prisoner, tendered in the course of the evidence before the Court in relation to the disputed facts who was, as I understand it, the owner/manager of the Junee Hotel in 2013. He deals with a number of the contextual issues, but particularly refers to the fact that some time after 11.15pm he heard the victim saying words to the effect that he, “wanted to hit somebody”. The manager of the hotel was not sure who he was talking about, but it turned out that he was talking about the prisoner, Steven Green. It is the case that the younger brother, Sean, was apparently trying to diffuse the situation, and it is also clear from that statement that not only had the group of people drinking together drunk a great deal of alcohol, but the prisoner Steven Green, was concerned that the hotel should remain open, at least behind closed doors so to speak, and he could continue drinking.

15. A group of people then left the Junee Hotel and made their way back to the motel, I have seen the CCTV footage of that group walking back to the motel along what I understand to be Broadway Street. That CCTV footage I was provided is also important because at a later time, some time after around about 1.59am, the victim can be seen stumbling towards the direction of the Junee Hotel, having come from the Junee Motel, pursued by the Green brothers wearing clothing that can distinguish the two of them and footage of their return to their accommodation.

16. Back at the motel people continued to drink and somehow the two women ended up in one of the rooms in circumstances that I need not dwell upon. About 1.30am, however the two Green brothers and the victim were outside what was described as ‘Room 1’, having an argument, and the two women particularly speak of hearing raised voices and the like. It was the prisoner’s evidence, and certainly is asserted in the statement of facts, that in the course of this argument the prisoner and the victim ended up in a nature strip in the middle of Broadway Street, nearby to the hotel. That is where the stabbing of the victim occurred on the evidence of the prisoner. This is one of the primary “disputed facts”.

17. At some stage after the argument had started the victim did return to the Junee Hotel, and I have referred to CCTV footage showing him “stumbling” along the footpath back towards the hotel at 1.59am with the two Green brothers in what I would regard as hot pursuit. The facts provided to the Court refer to a witness called Luke Moor hearing voices. He was staying, or living, in a two storey terrace building immediately next to the hotel. I have photographs of its relationship to the hotel. His bedroom was located upstairs. He heard arguing, or yelling, outside. When he came out onto the balcony, presumably to quell the sound, he saw three people in the street below, one was the victim and the other two were the two Green brothers. He did not know any of the men but he gave descriptions which clearly can distinguish Steven Green, the prisoner, from his brother.

18. The victim was being held by the front of his shirt upright against a motor vehicle and he was dragged to the ground, the victim was trying to protect himself. The Crown alleges that the victim was stabbed by the prisoner at some point whilst he was being held against the motor vehicle, and ultimately I am satisfied of that beyond reasonable doubt for reasons I will explain later.

19. Once the victim was on the ground Sean Green punched the victim once with a closed fist. The victim lay motionless on the ground, and it was at this point that Steven Green kicked the victim to the back of the head and did so a number of times. Whilst the kicking was taking place it is alleged Sean Green said, “Ease up” and Steven Green was heard to say, “Fuck him, I’m going to kill his whole family”. I am satisfied beyond reasonable doubt these words were said by the prisoner.

20. In fact ultimately when one analyses the evidence such as it was given by the prisoner about these matters he cannot dispute this aspect of the disputed facts hearing. Furthermore, Mr Moor shouted down to the brothers below to leave the victim alone, which was reasonable enough. Steven Green, the prisoner, shouted back to Mr Moor, “Come down here and I’ll stab you too”. I am satisfied beyond reasonable doubt those words were said. Again the prisoner offers no answer to Mr Moor’s evidence other than to say ultimately he does not remember saying it.

21. The two brothers then walked off. The victim lay motionless on the ground. Mr Moor rang for the ambulance and assistance was provided to the victim. I need not go into that. Some people who provided statements to police saw two people wearing clothing similar to the two brothers at various times. I had oral evidence from two train drivers, Mr Greg Richards and Mr Darryl Fitzgerald, who, as I understood their evidence, were standing on the railway station looking westward at particular times towards the Junee Hotel, perhaps slightly in a nor-westerly direction. They were however some considerable distance away from relevant events.

22. The victim, as I said, was tended to and I need not dwell upon that. Ms Moylan and Ms Philpott were still at the motel and about to go home when the two Green brothers returned to the motel. Ms Moylan, I believe, gave evidence that she asked the brothers what they had been doing, to which the prisoner, as I understand her evidence, said “Fuck off, cunt”, which to my mind reflects a level of belligerence and a degree of awareness of what was going on on the part of the prisoner at that particular time. Ms Moylan and Ms Philpott returned to the hotel, where I gather they had more permanent residence, to find the victim being treated.

23. The victim had to be taken to Wagga Wagga Base Hospital from Junee Hospital and then had to be transferred to St George Hospital for emergency or intensive treatment. He had the following injuries:

24. A two centimetre penetrating wound to the right upper chest just lateral to the sternum; a superficial incised wound to the right upper quadrant of his abdomen; an abrasion to his forehead above his right eye; a one centimetre incised wound to the left lateral eyebrow which required two sutures; two incised wound to the medial aspect of the right arm approximately one centimetres in length, and the other three centimetre in length, for which suturing was required.

25. This clearly was a man suffering very serious injuries and there is no doubt that he suffered both grievous bodily harm, and actual bodily harm from the assault. The extent to which he was stabbed is not made clear, I could only be satisfied beyond reasonable doubt that he was stabbed once, the primary wound being the wound to the right upper chest.

26. A trauma surgeon who gave evidence before me, Dr Mary Langcake, treated the victim, and she noted that the victim suffered a cut through his right internal mammary artery. She gave her expert opinion both in statement form and in oral evidence that the artery would have gone into spasm or contracted. Such a process may have slowed the amount of blood loss, and she expressed the opinion that it was possible that the victim may have walked for an indeterminate distance after being stabbed, but she thought it unlikely in the circumstances the victim would have walked or stumbled for the distance that he would have on the accused’s version having regard to the circumstances as she understood it. She expressed other opinions based upon requests for further information from the officers of the learned Director of Public Prosecutions.

27. She was asked about the depth of the wound to the chest, and the reference in her statement to the depth of the wound of the chest of Mr Allen being 4.68 centimetres.

28. She was asked whether this was a reference to the fact that the wound had gone a further 4 centimetres into the chest cavity, meaning a total depth of 8.86 centimetres. She said it was impossible to state the exact depth of the wound suffered. She said:

“Since the average depth of the male chest wall in this position is 4.86 centimetres as previously stated, the weapon has penetrated at least 4 centimetres into the chest cavity to cause the injury, not 4.86 centimetres plus further centimetres, as this could not be determined by the available imaging nor at the time of surgery. To penetrate this far” (I took that to mean to the distance that she could best estimate through skin and muscle) “would require significant force”.

29. She went on to say about the walking or running 350 metres after receiving the stab wound:

“The injury that Mr Allen suffered transected (cut through) his right internal mammary artery. When an artery is injured it spasms (contracts) which can for a period of time slow the amount of blood which the artery is losing, therefore it is possible that Mr Allen did walk for a distance after being injured. It is highly unlikely that he would have been able to run as this would have caused an increase in his heart rate and therefore further bleeding, which would have led to earlier collapse. I am unable to state what distance he would have been able to walk after the injury.”

30. In her oral evidence she, to some extent, expanded upon the various opinions expressed in the report and supplementary report. She said in relation to the matter that with the reaction to the injury, people will have a “fight or flight” reaction which will cause them in certain circumstances to do extraordinary things to avoid further harm, even as a matter of instinct. I raised with her to my mind the famous example of Erich Maria Remarque’s book All Quiet on the Western Front and his observations of wounded men endeavouring to avoid falling down and dying where they were shot, running sometimes on the stumps of their legs.

31. She also expressed opinions about the matter that were directly raised by the prisoner in his oral evidence concerning whether the injury that she treated, that is the injury to the chest, could have been caused by a “butterknife”. She said in the report and in her oral evidence that an implement that would cause a wound of this nature and of this depth would have to have had at least one sharp bladed side to it. She said:

“In my experience butter knives don’t have that, and the reason I can say that is that the chest wall is thick in that area. Skin is very tough and it will require being a sharp implement to penetrate to that depth.”

32. She said in relation to the issue of the use of a “bread and butterknife”, in response to questions from learned counsel for the prisoner:

“Unless it was sharpened that would be difficult to envisage simply again because of my experience in doing thoracic surgery and knowing that if the scalpel blade is blunt, for instance, it is actually very difficult to get through the various layers.”

33. It is widely known that in terms of knife wounds causing fatal injury and the like, particularly to the chest and stomach, that the major barrier to penetration is penetrating the outer layer of skin. Once that occurs the relevant weapon, depending upon its sharpness, can penetrate very deeply with minimal force after penetration. Be that as it may, she also pointed out that the position of the wound on the torso does not necessarily correspond directly to where the implement has come through into the chest cavity, it depends on trajectory, “The wound, as I would describe it, was relevantly adjacent in this case, but it doesn’t necessarily mean that it’s gone through at a perpendicular angle.”

34. A blood sample was taken from the victim at 10.25am on 22 August. That would be, on my calculation, over eight hours after he was wounded, and even then he had a blood alcohol reading of 0.083 grams of alcohol in 100 millilitres of blood, which shows to my mind, without further expert evidence, that he would have had a very high concentration of blood alcohol at the earlier hour. I would expect that the prisoner and his brother were similarly affected as was the victim, given the other evidence about their drinking.

35. The prisoner and his brother were eventually spoken to by police on 26 August and as is clear from the statement of facts, both taking part in electronic interviews, they provided absolutely no cooperation to the police in relation to this matter and certainly made no critical admissions against interests. They admitted that they were at the hotel drinking with the victim and they admitted that they went back to the motel with others, where they had a few more drinks but both said that they went to bed at about 1.30am. They did not leave the motel until the following day, they said, and they denied being involved in any incident with the victim.

33. The account the prisoner gave was obviously false by reference to the evidence he gave before me, and of course that is a relevant matter to assessing his credibility in other respects. I must say in passing the prisoner sought in almost a throwaway line to suggest that we should all go off and have a look at the drain outside the Junee Motel to look for the weapon. It is a a shame that he was not prepared either himself or instruct his legal representatives, to ask the prosecuting authorities to go and look for the weapon before the matter came before me.

34. The prisoner certainly did not provide any assistance to the investigators to find the weapon because, as I say, he denied any involvement. No weapon has ever been found. There was no blood trail along the 350 metres from the vicinity of the motel to the location where the victim was being physically assaulted. I am mindful that rain fell at Junee in the hours after the victim was assaulted, but part of the route followed by the victim was also, as the CCTV footage makes clear, along a footpath that was under cover.

35. The victim has no memory of the incident. He remembers the night of the incident drinking alcohol with his workmates and then standing in the street with blood on his shirt and then waking up in hospital. He cannot recall being stabbed or assaulted, and I was not, as far as I can see in the bundle, provided with any victim impact statement.

36. As I said ultimately the disputed facts hearing concentrated on these issues, where the stabbing occurred and whether the Crown had proven beyond reasonable doubt that it was outside the Junee Hotel, the circumstances of the assault occasioning actual bodily harm in company of the victim and whether the knife used was one as asserted by the prisoner to be “a butterknife”. I am mindful of the fact the Crown must prove beyond reasonable doubt essential facts relevant to the proof of guilt. The character of the weapon is one such fact in my view. The location of the stabbing is to my mind a matter the Crown must prove beyond reasonable doubt. The circumstances of the assault occasioning actual bodily harm must be proven beyond reasonable doubt.

37. As I have already pointed out, when one considers the prisoner’s evidence the matters to be determined in relation to the last issue that I have just described were barely troubled by the evidence of the prisoner. He could offer no answer at all to the essential facts alleged by the Crown in relation to that matter. But, interestingly enough, he was adamant about the character of the weapon and the location of the stabbing. This is coming from a person who claims that he has no memory of the things that he said to Mr Moor.

38. With regard to the evidence of Dr Langcake I have had regard to that and I have also had regard to the various witnesses who gave evidence before me. One such witness was a lady who worked at a bakery and was required as part of her responsibilities at that bakery to start work some time after 1.30am on the morning of 22 August. That witness, as with all the witnesses in the prosecution case to my mind, was an honest witness. She saw various things from outside the Junee Bakery which is, as I understood her evidence, on the other side of Broadway Avenue from the Junee Motel.

39. It should be pointed out that this particular street, at least in the vicinity of the Junee Motel, is a very wide street. It has a roadway adjacent to the bakery separated by a wide medium strip, that is a medium strip that appears to be well over 15 metres wide, and then another roadway leading on to the motel. This lady, Ms McNeair, made observations that were relied upon by counsel for the prisoner as purportedly supporting the prisoner’s version, given he says that he stabbed the victim on that median strip. Of this area there are some photographs tendered in the Court.

40. From the outset, as I said, as the matter unfolded there appeared to be really no dispute on the part of the prisoner as to the circumstances of the assault occasioning actual bodily harm to the victim. The prisoner’s evidence concerning that matter in company with his brother, bearing in mind he pleaded guilty to being in company with his brother, raised, as I said, no substantial issue of dispute. At one point the prisoner in his evidence sought to describe this aspect of the conflict as some sort of “fight”. But he soon retreated from that proposition in his evidence and conceded, when asked to provide further particulars of what happened, that in fact it was no fight because the victim was entirely defenceless at that point of the proceedings. He had been set upon by the prisoner and his brother together at that point.

41. When asked about Mr Moor’s account of what happened, particularly concerning statements heard by Mr Moor and observations Mr Moor made of the number of blows to the victim and the character of the blows and what was said to Mr Moor by the prisoner, the prisoner could only say, very unconvincingly, that he had no memory. Even if his statement was convincing, it does not assist him in any issue of disputed fact.

42. Mr Moor was a very impressive witness to the extent that, firstly, he was adamant in his evidence. His statement to police was made on the day of relevant events, when events were fresh in his memory and he would appear to be a person unaffected by alcohol, unlike the prisoner. He was skilfully cross-examined by the prisoner’s counsel and was completely unshaken in relation to relevant matters. There was absolutely no reason, including the evidence of the prisoner, that arose either in submission or otherwise observed not to accept Mr Moor’s evidence.

43. So far as the prisoner’s evidence is concerned one would need to approach his evidence, of course, with considerable circumspection. First of all, but not necessarily in order of importance, he conceded in the course of his evidence as to the circumstances of the stabbing and that in placing his brother some distance away from that he gives this evidence in the knowledge that his brother was pleading not guilty to the same charge and was alleged to be part of a joint criminal enterprise in relation to the stabbing. He also understood that the presence or not of his brother at the site of the stabbing was a significant matter in the Crown case against his brother.

44. I also assess his evidence in the knowledge, as I have pointed out, that when interviewed by police in relation to the matter three or four days after the event he denied wrongdoing, provided no assistance to the police, and in circumstances where, as I said, in his evidence he now claims the weapon he used was thrown down the drain outside the Junee Motel. It may well be there, of course, but nobody has bothered to go and find it for us. In the intervening period of time even since pleading guilty he has not, as I said earlier, provided any information to the prosecution about this matter.

45. He was, it must be said and I do not mean this unkindly of him, a most unimpressive witness. I accept he has probably never given evidence before and he is the prisoner. He is under a great deal of pressure. I understand all of those matters. Any key admissions or details of his actions were very reluctantly given, such as, for example, his assertion that after he had stabbed the victim and followed him down to outside the hotel. He initially claimed that they were involved in “a fight”, which involved no resistance from the victim.

46. The only part of the prisoner’s evidence I could accept without reservation is really quite distinct from the disputed facts. That is that he felt sorry for himself and the consequences for him and his family in relation to this matter. I understand why that would be so. His lack of memory of key events such as the details of Mr Moor’s interaction with the attackers, to my mind, reflects adversely upon his claimed memory of other events.

47. I have had regard to Dr Langcake’s evidence and the detail of matters arising in cross-examination particularly, and in my view, having regard to her opinion in the context of other facts, including the absence of any blood trail in circumstances where one might have thought it might not be washed away by the rain and particularly the doctor’s opinion that it was unlikely that the victim could have moved such a distance in the manner reflected, for example, by the CCTV footage. There is no reasonable possibility by regard to her evidence that the victim was stabbed some hundreds of metres away from the Junee Hotel and then stumbled or ran or walked back to the Junee Hotel from the scene of the stabbing as asserted by the prisoner.

48. The evidence of Ms McNeair, the lady at the bakery, reflects upon the movement of two or three men at various times in the area outside the Junee Motel and in the medium strip and then along the Broadway Street precinct, heading in the direction of the Junee Hotel. At one point she suggested one of the men had gone into a nearby building. Her account is just as consistent with three men being together at various times either arguing and/or fighting, before the victim was chased or followed back to the Junee Hotel without having been stabbed, as suggested as the scenario by the prisoner.

49. A most compelling piece of evidence, apart from the weight of the expert opinion in conjunction with the physical evidence, is the evidence of Mr Moor. Of particular importance were the words said by the prisoner, “Come down here and I’ll stab you too.” I appreciate that that could refer to the fact of an earlier stabbing, as claimed by the prisoner. But in my view in the context of all of the other evidence it is more consistent with a reaction by the prisoner almost immediately after the stabbing of the victim, at a time when the prisoner was in possession of the knife. It is to be remembered that the prisoner’s account is that he had discarded the knife before he chased the victim down the road. The statement made to Mr Moor that he would “ ... stab him too” speaks of him having a knife in his possession at that particular time.

50. His counsel in submission, of course, conceded the difficulties faced by the explanation given by the prisoner. In fairness to her and her skill in conducting her client’s case, she said, amongst other things, effectively “It is what it is”. She had her instructions to put his case and challenge the facts asserted by the Crown, and I respect that. She did that skilfully and the prisoner had the right to give evidence of what he believed to be the circumstances in which events occurred.

51. These are matters of right and I will draw no inference adverse to him for exercising his rights. But the truth of the matter, if reality was understood by the prisoner, is that he must have understood it would be very, very difficult indeed for any Court to accept an account of a person who was so heavily intoxicated seeking to challenge the matters that the Crown said had been proved in part by independent evidence.

52. With regard to the issue of the butterknife, of course the significance of him going to grab a butterknife, as I would understand it, is that he was not armed with a weapon that was capable of inflicting great harm and that the weapon that he in fact used upon the victim in the course of a heated argument, which I accept had occurred, was not premeditated or was thought out. I have referred to the expert opinion of Dr Langcake. It is clear on any view of it, in the context of the expert evidence, that for a relatively blunt object like a butterknife to penetrate the chest wall in the manner in which this wound did would require tremendous force. To my mind a type of concentrated force entirely inconsistent with what the offender claimed to be his use of the knife, in a form of self-defence fighting this person by himself. It is in this context I have formed the view that the offender’s evidence about his account is a situation of ‘confess and avoid’, if that is the correct expression. I bear in mind, of course, that he claims he was so intoxicated he cannot remember what he said to Mr Moor and other relevant events. I am quite satisfied that the preponderance of independent evidence and expert evidence and physical evidence is contrary to the unsatisfactory explanation given by the offender.

53. I have referred to Mr Richards and Mr Fitzgerald. Their evidence does not really add to the more direct evidence of Mr Moor or the account given by the offender. One aspect of Mr Fitzgerald’s evidence however that is against the offender is that he suggests in his evidence that there was some argument or some confrontation going on outside the Junee Hotel for a matter of some minutes before the fighting that he saw occurred. It would be highly unlikely, one would have thought, that the victim having been stabbed several hundred metres away staggered back to the hotel, lent against a car or a vehicle of some type and then engaged in some sort of debate or argument with his two attackers with that stab wound in his chest.

54. I have already dealt with the evidence of the two young women who found their way back to the Junee Motel as I said. The evidence of one of those women reflects upon the belligerence of the offender after the event, and certainly shows in the immediate aftermath the offender at least was neither furtive nor contrite.

55. Having made all these various findings and observations about the evidence, there are other conclusions that need to be noted for the purposes of assessing the objective facts. Firstly, this was not a planned crime or a premeditated crime in the generally accepted understanding of that word. I am referring of course to the wounding with intent matter at the moment. The assault occasioning actual bodily harm matter was not premeditated nor planned as well. But neither crime was “impulsive”. Firstly, this is not a case of a man being stabbed and then assaulted immediately upon an insult or some physical altercation between the offender and the victim. The offender’s own account is that he went into a room to get a knife and introduced it into an argument where the victim was unarmed. As the Crown facts stated, and the facts I accept establish, the offender and his brother followed the victim for some distance after their heated argument and the offender armed with a knife. Thus, whilst I have made a finding of no “premeditation”, it is clear the offender was prepared to confront the victim with the knife in his possession in circumstances where ultimately he had no concern about using it.

56. The grabbing of the knife however I am prepared to accept was very much in the heat of the moment. I have accepted that there was a heated argument between the offender and the victim and the offender’s brother. The background to it may well have been some discord in respect of their working relationship and I am mindful of the evidence of the publican that the supervisor wanted to fight the offender at some stage. That having been said, the CCTV footage of the group going back to the Junee Motel shows the group seeming to be walking along in a relatively relaxed manner and it would appear that the argument that later developed arose out of past enmities.

57. I conclude that the Crown has not established beyond reasonable doubt that the cause of the disputation between the offender and the victim was “not unprovoked”. In other words, what commenced this course of violence was some dispute, it could have even been a form of physical altercation, the victim cannot remember, which might have been in part contributed to by the action of the victim. But having said that, the subsequent events occurring some distance from the start of that altercation reflect upon the diminishing mitigation of any actions on the part of the victim toward the offender. The physical altercation at the motel, if it was one but certainly the argument, does not justify or explain the stabbing of the victim and certainly does not explain the cowardly attack upon him by kicking when he was defenceless on the ground. As I said, the victim was not armed and it is quite clear from Mr Moor’s evidence he was quite incapable of defending himself.

58. I bear in mind of course that the stabbing of the victim occurred when the offender was in the company of his brother, which is an aggravating factor, bearing in mind it is not pleaded, pursuant to s 21A (2)(e) as submitted by the learned Crown Prosecutor. In any event putting aside the issue of any aggravating factor that might be pleaded or otherwise arising under s 21A of the Act, the victim was at all relevant times outnumbered and, of course, then assaulted after the stabbing. The assault occasioning actual bodily harm in company, which whilst it did not cause more serious injury to the victim was in one sense even more reprehensible than the stabbing.

59. The offender’s criminal history is not significant in my view. I am mindful of the fact he has a finding of guilt in 2009 for an offence committed in 2010 at the Nowra Children’s Court. The offender was born in November 1990 and thus the offence of affray and the offence or robbery whilst armed with an offensive weapon were offences committed when 17. He was ordered to serve control orders that were suspended. The affray matter of course has the characteristics of the current matter, but it is to be said for a person who is still relatively young those offences were some distance from the events with which I am concerned in time. He has other findings of guilt of a minor matter relating to the misuse of motor vehicles and a finding of guilt in 2012 for wilful damage in Queensland, for which there was no conviction. For the purposes of s 21A(3) of the Act, I am prepared to find that he does not have a significant criminal history, as I have said.

60. The offender gave evidence about his personal circumstances before me. Notwithstanding the fact I have rejected his account of the stabbing, I am prepared to accept aspects of the evidence that he gave. Firstly, he is in partnership with a woman with whom he has had a relationship for some three or four years. She already had a five year old son. She leads a “pro-social lifestyle” and it is quite clear on the evidence the offender was a hard working man, who was obviously trying to do the best for his family by going out to Junee to work on the railway.

61. He has had limited education, only attending two years of high school, but as I would understand it he has generally been employed. He has undertaken some courses at TAFE to improve himself and obtained some certificates at various places to try and improve his employment opportunities. Since this incident he has apparently lost his employment with the rail maintenance firm. He worked at a chaff mill for a period of time and also worked at some form of commercial hardware premises.

62. I accept the fact that he would wish to return to his partner and maintain that relationship which will be a positive influence on him. He is a member of a large family, as I would understand it. There is some dysfunction in his family. His mother and father separated when he was relatively young. He has four older sisters and an older brother and the younger brother, his co-offender, as well.

63. I accept that the offender, whilst he has used drugs in the past, was not a person who was abusing prohibited drugs at the relevant time nor has a problem with those as such. But he was a heavy drinker, drinking in a “binge fashion”, not only on the night of the commission of the offence but at other times either side of the offending. His binge drinking no doubt has contributed to his loss of control on this particular night.

64. He was subjected to various psychological tests, including an intelligence test and assessment of his depression, anxiety and stress, severity of substance dependence and a personality assessment. The conclusion reached by the psychologist in relation to the matter, noting the background of the offender and his then current circumstances, was that his overall cognitive functioning fell on the cusp between lower extreme and low average range. He also suffered from the symptoms of a “substance dependence disorder” in relation to alcohol at the time of the offence. He has a low tolerance it would seem for frustration, particularly when affected by alcohol, and a low capacity to problem solve when confronted with stressful situations.

33. So far as recidivism is concerned, he is found to be in the “moderate to high risk of re-offending”, having regard to some of his past misconduct and antisocial associates and other matters I have not referred to, but the report notes some ‘conduct disorder’ situations at his high school that have ultimately led to him terminating his secondary education. With regard to his risk of recidivism it is largely reflected by what there is of his criminal history and his past conduct problems.

34. He is also to be found to be suffering from symptoms of mildly elevated depression. It would seem that those matters arising out of the testing are reactive to his current circumstances of being in custody for the first time.

35. He should undertake a violence offender’s treatment program whilst in custody, which is self-evidently so. He also should undertake some form of anger management program at some stage and he needs to receive professional assistance in relation to substance abuse, particularly his abuse or alcohol. I do not think there is any doubt, of course it goes without saying, if he and his workmates had come home from a hard day working on the railways had a cup of tea, went to the movies and went back to the motel none of this unfortunate affair for the victim would have occurred.

36. There was not much other material available to me in relation to the subjective circumstances of the offender. I accept the fact that he does continue to have the support of his partner and his family.

37. In sentencing the offender I have had regard of course to s 3A of the Act. The purposes of sentencing of course loom very large in a sentencing exercise such as this. I believe that the offending of the offender, whilst I do not doubt that he is capable of reacting with violence in a particular situation, is primarily “uncharacteristic” in the sense that the offender is not a person prone to use weapons to settle arguments. That having been said, of course the facts of the matter are that the offence that he committed was a serious offence for its effect upon the victim. The circumstances of drunken people fighting in the streets and causing serious injury to one another is one that has been the subject of considerable debate amongst the community. The Courts and the community are sick and tired of having to clean up the mess caused by drunken or intoxicated people causing serious injury to others, and the conduct of the offender of course was ultimately inexcusable.

38. There is a need for the offender to be adequately punished. There is a need for an element of general deterrence of course in this type of offending and some element of deterring this offender. Having regard however to his “pro-social” domestic circumstances, the absence of any significant criminal history and his industry, I am prepared to accept that the weight to be given to protection of the community from the offender is very little indeed. Of course, if a person acts this way once they can act this way again. I do not believe the offender is a risk to the community at large by reason of having a generally violent disposition.

39. I am required to make him accountable and denounce his conduct and recognise of course the serious harm done to the victim, but I am also required to promote his rehabilitation. In that regard I adopt, if I may do so with humility, the observations of King CJ in the decision of Yardley v Betts, also adopted by then Wood CJ at CL in R v Blackman and Walters [2001] NSWCCA. King CJ in 1978 observed that:

“The protection of the community included a consideration of the rehabilitation of offenders because if offenders were rehabilitated or assisted in their rehabilitation then ultimately this was a matter that protected the community in the future.”

75. Section 5 of the Act has been taken into account but it is quite clear that nothing other than a term of imprisonment can be imposed.

76. I have referred to the aggravating factors submitted by the Crown, the fact that the wounding with intent was committed in company. Of course that is an element of the assault occasioning actual bodily harm offence and thus cannot be taken into account as an aggravating factor additional to that matter arising from the pleadings. A court is not to have additional regard to any aggravating factor in sentencing if it is an element of the offence as s 21A(2) makes clear. I appreciate the injury caused was substantial but it is an element of the offence that the offender inflicted grievous bodily harm. Once again the use of a weapon is not itself an additional aggravating factor given the elements of the offence. It is inherent in the offending one would have thought that the offender would have used a weapon.

77. With regard to mitigating factors that arise the offence, as I said, was not part of planned or organised criminal activity. The offending itself was not caused by provocation by the victim, I have made that clear, but the train of events started by matters not entirely the fault of the offender. In fact I noted one of the young women from the hotel referred to the victim being a bit “lippy” towards the offender back at the hotel. But that was some hours of course before the stabbing of the victim, at least more than an hour and a half before that occurred.

78. The offender does not have a significant record of previous convictions. I could not conclude ultimately the offender was a person of good character, but I am prepared to accept, notwithstanding the offender’s obstinacy in the fact finding exercise, that other features of the matter suggest that he is unlikely to re-offend, particularly with the salutary experience of a sentence of imprisonment. I am prepared to accept through the fact that he is a young man of industry that he has good prospects of rehabilitation.

79. His counsel urged upon me to conclude that the prisoner had shown remorse. I could not conclude on balance that that was so. I do not believe that he has accepted responsibility for his actions. Whilst he acknowledges the injury and loss and damage that he has caused this has come at a much later time than would be salient to an assessment of remorse.

80. He has expressed remorse for his actions, I understand that. He appears to me and to the Community Corrections Service to be more remorseful about his circumstances than those of the victim. There are no other mitigating factors that arise.

81. With regard to the sentencing for the two offences I am required to have regard to the principal of ‘totality’. I am mindful of what is said about this matter by the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610, particularly at [45] and discussion of that judgment in later judgments of the Court of Criminal Appeal, particularly the observations for example of Justice Simpson in the decision of Hammoud 2002.

82. It seems to me, with respect, that whilst the two offences are closely related the attack upon the victim giving rise to the assault occasioning actual bodily harm in company, apart from being totally unnecessary, has to be seen as increasing the totality of the criminality. I am mindful of the fact that the victim was defenceless and even though the prisoner was highly intoxicated as I have said earlier the conduct of the prisoner was reprehensible.

83. I have concluded that should be a finding of ‘special circumstances’ pursuant to s 44 of the Act. The partial accumulation of sentences requires a consideration of special circumstances in accordance with authority dating back to the old Sentencing Act, such as Astill, but also in my view there is a need for an extended period of supervision.

84. I considered whether a period of four years was too much in the scheme of things. I must have regard to the relationship of the non-parole period to the total sentence and it seems to me that the prisoner will need an extended period of supervision to adjust to community living. He will need professional assistance in relation to employment in relation to re-establishing his relationship with his partner.

85. He will also need a great deal of guidance in relation to anger management and the abuse or use of alcohol particularly. One would hope that this experience in gaol will not drive him back to experimentation with prohibited substances.

86. That as I have addressed in my remarks on sentence matters that were either directly raised by the parties or had to be identified by myself and the consideration of what the appropriate sentence would be by regard to relevant principals and statutory considerations. I have certainly taken into account all the submissions that have been put to me by the parties in respect of the disputed facts and the other issues that are obviously relevant to sentencing.

87. Just one last issue. It was never put nor could it be concluded by the Court, that anything arising out of the psychologist report gave rise to a consideration of matters that have been discussed in judgments such as De La Rosa (from 2010) or Hemsley (from 2004) and the many authorities to which those two judgments make reference. The prisoner does not suffer from any mental disorder or disability at all and there is nothing being demonstrated on the evidence to show a causal connection with any such matter to the offending.

88. I am sorry, Mr Green, that is a lot of territory to cover I’m afraid. Could you stand up? Thanks very much.

89. In relation to the offence of assault occasioning actual bodily harm in company you are convicted. You are sentenced to two years imprisonment. That will date from 3 August 2015. That sentence will expire on 2 August 2017.

90. In relation to the offence of wounding with intent to cause grievous bodily harm, taking into account the matter on the Form 1 you are convicted. You are sentenced to a term of imprisonment by non parole period of three years. That will date from 3 August 2016. It will expire on 2 August 2019. In relation to that sentence I fix a balance of sentence of four years imprisonment that will expire on 2 August 2023.

91. Just take a seat, sir. I am sorry, Mr Green, there are two matters that I was to refer to and which for reasons that fall to me I neglected to refer to but they are important.

92. Firstly, your counsel provided me with statistics in relation to the matter to which I have had regard. They provide me with a range of sentences imposed in the ‘higher courts’. The sample of cases setting out total sentences for the principal offence of wounding with intent to cause grievous bodily harm is 138 and I have taken that into account.

93. Of course the limitations of statistics were the subject of comment in 1998 by Chief Justice Spigelman in the decision of Bloomfield. His Honour’s observations were concerned with the limitations of statistics on appeal but many of those observations are relevant here and whilst the statistics provide a range of sentences imposed over a period of time and the incidence of particular sentences being imposed, without facts, without the character of the injury, the circumstances of the imposition of the injury, without details as to if pleas of guilty have been entered, and the like, what discounts have been given.

94. The statistics provide little assistance of course in your case when sentencing you. I cannot give you any discount other than the discount I have accorded for the plea of guilty of 10% upon the other appropriate sentence, which led me to the conclusion that your total sentence for the principal offence should be seven years imprisonment, and the sentence for the assault occasioning actually bodily harm matter should be two years imprisonment.

95. I am mindful of the timing of the plea and in fixing that discount it seemed to me, on the basis of the submissions agreed, that the discount should be 10% by regard to the discretion available to the court pursuant to the guideline judgment of Thomson and Houlton.

96. The other matter I am afraid I did not refer to, and I apologise for that for keeping you, is of course the relevance of the standard non-parole period. In that regard I make note of the observations of the High Court in Muldrock v The Queen [2011] 244 CLR 120 but of course particularly the legislative amendments occurring subsequently in the now detailed provisions in s 54A(2) and s 54B(2) of the Act.

97. In relation to s 54A(2) the standard non-parole period represents the non parole period for an offence of the middle range of objective seriousness in the table of the division, only taking into account the objective factors effecting the relative seriousness of the offence.

98. I conclude that this offence falls within the middle range of objective seriousness. The absence of premeditation in the strict sense, the absence of planning, and the context in which the offending occurred is quite critical in coming to that conclusion. Furthermore pursuant to s 54B(2) the matters to be taken into account in determining the appropriate sentence, and particularly the non-parole period, by reference to the Table of the division do not include matters which are otherwise required to be taken into account in determining the appropriate sentence, such as mitigating factors and of course determination of whether there are “special circumstances” pursuant to s 44 of the Act.

99. I am mindful that the learned Chief Justice in a decision of Way in the Court of Criminal Appeal from 2004 expressed the view that the middle range of objective circumstances was a “not necessarily narrow band”. Whether that observation, being an obiter observation, still stands after Muldrock nobody has really explained. It seemed to be in the circumstances ultimately, notwithstanding the fact that I found the offence to be in the middle range of objective circumstances, that I should adjust the non-parole period to take into account those matters that I have found in mitigation as well as the finding of special circumstances.

100. I should point out I noted to make those observations prior to making the orders relevant to the prisoner but for some reason the circumstances in which I have got a great number of documents in front of me, my notes in relation to those matters were temporarily mislaid.

101. Mr Green, do you understand the sentence I have imposed?

102. OFFENDER: Yeah, sort of.

103. HIS HONOUR: The total sentence I have imposed is eight years imprisonment and I’ve fixed a non-parole period of four years. I’ve backdated the total sentence to 3 August 2015. I have taken into account all the time you’ve spent in custody. You’ll be eligible to release to parole on 2 August 2019. That will be a matter for the Parole Authority. You won’t automatically be released to parole if the Parole Authority decides that you shouldn’t be released to parole. So at the end of the day your performance in custody will be relevant to the issue of when you’re released to parole. Of course all the orders I’ve made are subject to your rights of appeal and the Crown’s rights of appeal, I fully appreciate that, but I’m speaking in terms of the orders that I’ve made, do you understand that?

104. OFFENDER: Yes.

105. HIS HONOUR: If you are released to parole after four years you’ll be subject to parole supervision for another four years. You’ve never been on parole before although you’ve had a suspended control order. That will mean that at least for three of those four years you’ll have to report to an officer of the Community Corrections Service. If you don’t abide by the conditions of your parole the Parole Authority can revoke your parole. They won’t come to me to ask me to do that, or the Court of Criminal Appeal, or wherever your sentence finally ends, it’ll be a matter for the Parole Authority and the Parole Authority can revoke your parole, you’ll go back into custody, and you’ll stay in custody until the Parole Authority decides either that you be released or your total sentence expires. But your balance of sentence does run from the time you’re released from custody, do you understand that? So if you spent two years out in the community and they revoke your parole you wouldn’t start the balance of parole over again, it would be the balance of that time two years - the balance of your sentence less the two years you’d been in the community.

106. So in other words you get credit for being “on the street” so to speak but when you are released to parole I’d hope that you wouldn’t commit any further offences or you wouldn’t have your parole revoked. I must say, if I haven’t said so already, if you commit more crimes whilst you’re on parole your parole can be revoked depending upon the character of the crime. I doubt that you’d be - have your parole revoked for driving unlicensed but if you went and assaulted somebody in a pub the likelihood is that your parole would be revoked and you’d stay in custody until the Parole Authority thought that it was proper that you be released, do you understand that?

107. OFFENDER: Yes.

108. HIS HONOUR: I can’t explain it any better, I apologise for that, but as I said the matter of parole supervision is not for me, it’s a matter for the Parole Authority. Thank you very much, Mr Green, you’re excused.

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Decision last updated: 06 April 2016