R v Harvey & Boye

[2015] NSWDC 398

District Court

New South Wales

Medium Neutral Citation:

R v Harvey & Boye [2015] NSWDC 398

Hearing dates:

19/10/2015:

Decision date:

18 December 2015

Jurisdiction:

Criminal

Before:

Judge S Norrish QC

Decision:

Harvey: -

Count 2 - CONVICTED:  Sentenced to a term of imprisonment of 3 years and 3 months with a non-parole period of 1 year and 3 months.

Count 4 - CONVICTED:  Sentenced to a term of imprisonment of 2 years and 6 months with a non-parole period of 1 year and 3.

BOYE: -

Count 2 - CONVICTED:  Sentenced to a term of imprisonment of 3 years and 3 months with a non-parole period of 1 year and 6.

Catchwords:

Criminal – Sentence, while in company recklessly cause grievous bodily harm, breach of conditional liberty, delay, special circumstances, mental disability.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:

R v Callaghan (2006) 160 A Crim R 145
DPP v De La Rosa [2010] NSWCCA 194
Muldrock v The Queen [2011] HCA 39
R v Thomson and Houlton [2000] NSWCCA 309 (49 NSWLR 383)
R v Todd (1982) 2 NSWLR 517
Veen (No 2) v The Queen (1988) 164 CLR 465

Category:

Sentence

Parties:

Crown
Sean Harvey – Offender
Andrew James Boye - Offender

Representation:

Counsel:
Mr Todd - Crown
Mr Thomas – S Harvey
Ms Fernando – A J Boye

File Number(s):

2011/00416320: 2014/00372811

sentence

1. HIS HONOUR: Two men appear before me today for sentence, each having pleaded guilty to particular charges on an indictment that was presented when I was sitting at the Bathurst sittings of the District Court of New South Wales. Mr Harvey and Mr Boye both pleaded guilty to a charge set out in count 2 that they each at Kelso on 11 November 2011 while in the company of each other recklessly caused grievous bodily harm to Luke Hutchin. They were jointly charged in relation to that matter as an alternative to a count of cause grievous bodily harm with intent to cause grievous bodily harm, to which they pleaded not guilty. The plea entered by them was accepted by the Crown in full discharge of that part of the indictment.

2. Mr Harvey was separately arraigned and pleaded guilty to a charge of recklessly causing grievous bodily harm to Alecia Cole. That plea of guilty was in respect of a charge that was an alternative to a charge alleging that he, while in company with Mr Boye, cause grievous bodily harm to Alecia Cole.

3. In respect of the common charge to the two accused, the recklessly cause grievous bodily harm in company, the maximum penalty for that offence under s 35(1) Crimes Act 1900 is 14 years imprisonment, with a standard non parole period of five years imprisonment.

4. With regard to the offence of recklessly cause grievous bodily harm, an offence contrary to s 35(2) Crimes Act 1900, the maximum penalty of imprisonment is ten years with a standard non-parole period of four years. There are no other charges to consider by reason of a Form 1 or a s 166 certificate. Both men have been in custody prior to sentencing in relation to the current matters.

5. In relation to Mr Harvey, to deal with him particularly, I am informed he has been in continuous custody from 18 October 2013 up until the present time, however, I am unable to take into account all of that time in custody for the simple reason that on 1 May 2014 he was convicted at the Bathurst Local Court in respect of an offence of assault occasioning actual bodily harm, that offence being committed on 17 October 2013 and sentenced to six months imprisonment commencing on 18 October 2013. Thus, part of the time with which I am concerned so far as his time in custody is concerned is referrable to another offence. However, as was indicated by the remarks I made to Mr Harvey before I commenced the sentencing observations, I propose to commence the sentence imposed upon him in January 2014. The first of the sentences I am required to impose will be partially accumulative upon that sentence of six months. Obviously, I appreciate I have a wide discretion in relation to the matter, I could have made the sentences I impose entirely accumulative, but in the circumstances to reflect totality of criminality principles I have not done so.

6. Just dealing with Mr Harvey for a moment on another matter. He was on parole at the time of the commission of the offences with which I am concerned in relation to him. It is self-evident that offences committed while subject to parole represents a breach of conditional liberty of some seriousness and that is an aggravating factor under s 21A(2) Crimes (Sentencing Procedure) Act 1999. Hereinafter I will refer to that legislation as “the Act.” However, in relation to the revocation of his parole that followed upon him coming into custody in October 2013, I am advised by reference to the custody record that the prisoner’s balance of parole was merely two months and two days. I use the word “merely” to represent the fact that had it been considerably longer, if it had run, for example, for the period of time that was imposed in respect of the assault occasioning actual bodily harm conviction to which I referred then I would be required to have regard to the principles in decisions such as Callaghan from 2006, particularly Simpson J’s observations that caution is required to be exercised when finding an aggravating factor such as an offence committed in breach of parole where there’s been a revocation of parole and the need to ensure that one does not double dip. As it transpires the sentence I impose starts after the completion of that balance of sentence relevant to that revocation of parole.

7. With regard to Mr Boye, he was arrested and charged in relation to the current matters in circumstances where he has been in custody since 31 January 2015. Thus, the sentences I impose will date from that date and will take into account all of the time spent in custody. He, likewise, was subject to conditional liberty at the time of the offending with which I am concerned, but the matter that he was restrained by was a s 9 bond for a period of 12 months in relation to a driving offence. That is still obviously a breach of conditional liberty not quite as serious as an offence committed whilst on parole. I will come back to the calculation of the effective non-parole period relevant to Mr Boye in a moment.

8. In respect of the two offenders I have an agreed statement of facts. Although there are matters in dispute, I have concluded ultimately that the matters in dispute are not of such significance as to warrant any particular analysis on my part. Many of the matters concerning the issues in dispute were discussed in the course of submissions.

9. The facts of the matter are that on Friday 11 November 2011 Mr Harvey drove Mr Boye and two other people, Mr Peters and Mr Hutchin to premises at Kelso. The premises at Kelso were occupied as I would understand it by one of the men in the car, that is Brady Hutchin, at least he had clothes at the premises. It was also occupied by Alecia Cole who was a former partner of the prisoner Boye and Luke Hutchin who I take to be the brother of Brady Hutchin.

10. There was some acrimony obviously between Mr Boye and Ms Cole. I am not in a position to make a judgment in respect of that matter. They had a child of their relationship and clearly there was some bad feeling that it had bubbled over on this particular night. In fact, according to the facts,

11. Mr Boye and Ms Cole had an acrimonious telephone conversation which I am prepared to accept Mr Harvey was largely unaware of.

12. When Mr Harvey arrived with the other men in a motor vehicle, they remained seated in the car, the child of the relationship between Mr Boye and Ms Cole was at other premises. There is absolutely no doubt based upon the agreed facts that Ms Cole came over to the motor vehicle and commenced having what appears to be an argument with the prisoner Boye. It is to be noted for the purposes of reflecting upon issues, such as pre-meditation and deliberation and planning, that during the course of this argument the prisoners Mr Harvey and Mr Boye remained seated in the car. Words were exchanged and obviously tempers got heated.

13. The facts refer to some evidence given by Jacob Peters at a previous proceeding at the Bathurst District Court to the proceedings with which I was involved, I am informed that Judge Hanley was sitting at Bathurst and conducted a Basha inquiry in relation to matters concerning a forthcoming trial involving the accused Harden. Part of the evidence of Mr Peters forms part of the agreed facts. The Crown does not necessarily accept Mr Peters’ version of events and ultimately it must be said that my capacity, if needs be, to resolve disputes as to the facts is extremely limited given the fact that I did not see Mr Peters give any evidence and nobody has called the victims or the prisoners to resolve some of these matters.

14. One of the matters asserted by Mr Peters that was Ms Cole was in the possession of a screwdriver or a chisel and was threatening Mr Boye as she stood at the driver’s door speaking across Mr Harvey in the driver’s seat during the course of their heated argument. In my view whether she had a screwdriver or a chisel is of little moment. It seems to me so because the first act of violence in the matter was not involving Ms Cole but it was an act of violence towards Mr Hutchin.

15. That having been said the facts make it abundantly clear that, when Mr Boye got out of the motor vehicle and walked across the front yard or into the front yard of the premises Mr Hutchin removed his shirt and approached Mr Boye and the two of them fell to fighting, not that I am approving fighting in public places. As it can be shown in this case it can sometimes get out of hand as happened on this occasion but the truth of the matter is Mr Hutchin a victim in relation to count 2, was a willing participant in acts of violence perpetrated by Mr Boye and Mr Hutchin upon each other.

16. It would seem as though in the course of the fight Mr Boye got the better of Mr Hutchin as can happen in fights and got on top of Mr Hutchin and commenced to punch him repeatedly in the head with his fists. Ms Cole seeing her then partner being bettered by Mr Boye determined that she would assist him. I appreciate complex issues of rescue or defence of a third party and the like coming into play here, but she returned to the fray with a wooden didgeridoo. A photograph of it in a broken state is part of the evidence in the proceedings.

17. If she had not introduced the didgeridoo into the fight, I have got no doubt that it would not have become the weapon that it subsequently did. When she brought the didgeridoo back it is alleged in the disputed facts that Cole handed to didgeridoo to Hutchin and he swung it towards Boye’s head. There is no suggestion that he struck Mr Boye with it. The Crown asserts that Mr Harvey dispossessed Hutchin of the didgeridoo and it would seem to me quite clear that he did so at some point because ultimately Mr Harvey ended up with the didgeridoo in his hand.

18. Mr Peters supports the version concerning Mr Hutchin using the didgeridoo as a weapon initially against Mr Boye. It would seem on any view of the facts, however, that Boye and Hutchin again fell to fighting and again Mr Boye got the better of Mr Hutchin, continuing to punch him to the head at a time when Ms Cole no longer had the didgeridoo. It was at this point that the prisoner Harvey struck Mr Hutchin to the head with the didgeridoo. Mr Boye, it is agreed after the victim got struck to the head with the didgeridoo, got to his feet and kicked Mr Hutchin to the head on a number of occasions as Mr Hutchin was motionless on the ground. He was effectively defenceless. Whether he was defenceless because of blows to the head from Mr Boye, from the striking of him by Mr Harvey with the didgeridoo or by a combination of those two offender’s actions I am clearly unable to say.

19. In relation to this aspect of the matter the two prisoners were jointly charged in relation to the same count to which they have pleaded guilty. They are charged with being in company of one and other. Mr Thomas in his usual erudite and concise way pointed to the in company feature as being the predominant characteristic of the joint conduct rather than “joint criminal enterprise” but the bottom line is of course that as now a particular person can be proven beyond reasonable doubt to have inflicted the grievous bodily harm that Mr Hutchin actually suffered. Clearly their joint responsibility for the grievous bodily harm that was suffered arises out of the concept of an on-going but short lived criminal enterprise.

20. Ms Cole intervened when Mr Hutchin was obviously defenceless. At this point Mr Harvey struck Ms Cole across the back with the didgeridoo. As she turned towards Harvey he struck her again this time hitting her on the arm. Whether her arm was up in a defensive position or whether it was just bad fortunate, it is not possible for me to say on these facts. When struck on the arm she yelled out, “Please stop, please don’t hit me”, at which point Mr Harvey who had the didgeridoo apparently poised pulled out of a swing that ultimately connected with her arm.

21. It would seem on the basis of that part of the facts that there was not any deliberation on the part of the prisoner to strike a particular part of her body. Hence his plea to an allegation of reckless infliction of grievous bodily harm. The didgeridoo was damaged and I have a photograph of it broken at a particular point. The splintering I can see in the relevant break is consistent, it seems to me, was some defect in the timber. I could not conclude beyond reasonable doubt as to the amount of force that was generated such as to cause the didgeridoo to break as was submitted by Mr Thomas.

22. Mr Harvey, Mr Boye and Mr Peters apparently then left the scene. The other Mr Hutchin must have remained at the scene. Mr Luke Hutchin, the victim in relation to count 2, suffered serious injuries, he had a large laceration across his head five centimetres long and one centimetre deep and abrasions to his body. He was admitted to Westmead Hospital with a “serious closed head injury” and was then placed in an induced coma within ICU for several days.

23. This was clearly a step taken as a preventative measure and it would seem that he fully recovered from the injuries suffered with no permanent disability. Ms Cole was treated in relation to an undisplaced fracture to her wrist. I have a photograph of her with her arm in a cast of some description, with traverse fractures of the vertebrae at L1 to L4. I have a photograph of her back showing a rather large bruise.

24. The facture to the vertebrae did not compromise the mechanical stability of the spine. There was no spinal cord injury, the vertebrae injury was treated with pain management and she fully recovered from her injuries. So neither victim suffered a permanent disability, but clearly the injuries were grievous bodily harm.

25. Investigators sought to locate Mr Boye and Mr Harvey. Apparently they travelled to South Australia. Warrants were issued for their arrest. On 25 April 2012 the prisoner Mr Boye came to the attention of South Australia police. New South Wales police were informed of the arrest but a Commander of the New South Wales Police Force declined to authorise extradition to New South Wales. I will deal with the issue of delay in this case, taking into account that aspect of the matter and other aspects at a later time.

26. On 18 October 2013 I am informed by Mr Thomas, and I have no reason to doubt what he tells me from the bar table, the prisoner Harvey surrendered himself to police at Bathurst.

27. He was, it would seem, already wanted in relation to an offence committed the day before these events concerning the assault occasioning actual bodily harm matter to which I referred for which he was sentenced to six months imprisonment. But he also knew that there was a warrant for his arrest in relation to the matters with which I am concerned and he went into custody from that time as I said.

28. In November 2014 New South Wales police sought extradition of the prisoner Boye from South Australia. This was, I note, two years and eight months after declining to do so. He presumably remained on bail and ultimately when extradited came into custody and has remained in custody since that time.

29. I will deal firstly with the material relevant to Mr Boye’s circumstances. His subjective case was limited but in the material in the Crown case I have his criminal history. He was born, as I understand it, on 28 March 1985. That would mean at this time he is now 30 years of age. At the time of the commission of the offence he would have been approximately 26 years of age. He, like Mr Harvey, has a lengthy history although he does not have as lengthy a history for violence as Mr Harvey. He has a number of appearances in the Children’s Court throughout 2000, 2001 and 2002 with a range of offences of varying types that I need not dwell upon. In respect of his appearances in the Children’s Court ultimately he found himself being committed to Juvenile Justice detention in respect of one offence, a breaking, entering and steal matter. After an appeal to the District Court he ended up with a term of 18 months imprisonment with a non-parole period of six months.

30. As an adult he has a number of appearances in the Local Court in respect of a range of offences including assault occasioning actual bodily harm in 2004 for an offence committed on 25 June 2003. He was sentenced apparently to periodic detention of 12 months with a non-parole period of eight months. He has a number of street offences. He has a number of driving offences of no great significance, although he has a conviction on 19 October 2007 of driving whilst under the influence of alcohol or drugs for which he was convicted and fined and disqualified.

31. In February 2008 in respect of offences committed in December 2007 he was convicted of a number of offences which resulted in terms of imprisonment encompassing a period of 12 months with a non-parole period of six months. Those offences were using an offensive weapon to prevent lawful apprehension, two counts of common assault and a count of contravene an apprehended domestic violence order. He also received a sentence of four months imprisonment, apparently concurrent with the other sentences, for demanding property with menaces with intent to steal. He next appeared in 2010 and was convicted of common assault, amongst other matters, for which he was placed on a bond to be of good behaviour for six months commencing on 18 April 2011.

32. On the same date as he appeared in relation to those matters, as far as I can understand it from the criminal history, he was also convicted on 18 April 2011 at the Bathurst Local Court, of driving whilst disqualified. For this he was placed on a good behaviour bond pursuant to s 9 of the Act for a period of 12 months and it is that particular bond that he was in breach of when he committed the subject offence. He was also convicted on that occasion in respect of an offence of resisting an officer in the execution of his duty and given a conviction without further penalty. Those two offences, I hasten to say, had been committed almost a year before.

33. He has convictions in South Australia following upon, as I would understand it, his flight to South Australia but the most relevant convictions for which he received modest penalties were convictions for common assault and ‘commit assault causing harm in circumstances of aggravation’, each of those offences committed on 30 November 2013 and dealt with on 5 September 2014.

34. In respect of the pre-sentence report concerning him there is reference to his supervision previously, his response to supervision previously was deemed suitable. He was in employment at the time of the offending involved in rail track maintenance and I understand that Mr Harvey too was involved in some employment concerned with the railways. In fact he had apparently worked a nine day shift immediately before the offences with which I am now concerned. He was thought not to require any further interventions from the Community Corrections Service.

1. He is one of four children. Apparently he grew up in Bathurst. His family was the victim, if I can use that expression as most families are in the general sense, of domestic violence from the father. His mother and father separated when he was 14 years of age. The prisoner has a daughter now who is aged 11 and she lives with her mother in Bathurst. The report states that after he went to Adelaide he more or less commenced a ”new life” and sought to distance himself from what he believed were possible “reprisals” in relation to the current offences. He was in a permanent relationship and he and his partner or “wife” have a property together in Adelaide. It would be the case, as I would understand it, he would return there once he had completed his sentence. The prisoner’s mother has moved away from Bathurst to Branxton, which I take to be in the Hunter Valley, and she has confirmed some of the background details.

2. The prisoner was a little unlucky in his early life. On leaving school he commenced an apprenticeship. However, the firm with which he worked failed and he lost his employment and he had to move to another apprenticeship as a boilermaker but he was unable to complete that particular occupation. When he was in Adelaide prior to his arrest he was in employment working for a building materials manufacturing company.

3. With regard to the offending in this matter the prisoner acknowledged that the relationship with his partner had contributed to the offending. He expressed remorse for what had happened. He blamed himself for harming the victim. He recognised his conduct as stupid. He used the expression “my pride got the better of me”. He is considered at medium risk of re-offending. If he was released to parole and was required to live in New South Wales he could live with his mother in Branxton. He may be able to get a transfer to South Australia in due course. He has a settled lifestyle to return to in Adelaide which I have taken into account. With regard to the offending with which he was concerned he still feared reprisals and he said that the violence involved went beyond what he envisaged.

4. Turning to Mr Harvey’s circumstances, his criminal history very much mirrors much of what I know about his personal life. His parents separated when he was quite young and at one point he lived in Queensland with a parent and his criminal history reflects this. He commenced offending in 1996 and has a number of appearances in the Queensland Children’s Court for a range of offences including offences of violence. He has in fact quite a number of appearances in that jurisdiction

5. When he came back to New South Wales it would appear in about 2000 being then approximately 16 years of age. He commenced appearing in the Children’s Court and appeared in the Children’s Court in relation to a number of offences as an adult. He has convictions for contravening apprehended violence orders for which he has been convicted and fined, taking and driving a motor vehicle without the consent of the owner for which he was sentenced to a term of imprisonment in 2002 of 12 months with a non-parole period of six months. He was, as I understand it, at the same time convicted of an offence of threaten or cause injury to a person “being a witness”. There were two counts involved in relation to that and he was sentenced to 12 months with a six month non-parole period.

6. Back in Bathurst, those other two convictions being recorded in the North Coast, he was convicted at the Bathurst Local Court for breaking, entering and stealing and given an 18 months good behaviour bond. He was called up in relation to that bond I note about a year after it was given to him and sentenced to 12 months imprisonment with a nine month non-parole period. However, that was sentenced. I note that within seven months of that he was called up in relation to that bond and sentenced to that term of imprisonment. An appeal was unsuccessful.

7. He was later convicted of assault occasioning actual bodily harm land sentenced to 12 months imprisonment with a nine month non-parole period. He was further convicted in 2009 in respect of offences committed in 2007 of assault occasioning actual bodily harm for which he was sentenced to two years imprisonment with a non-parole period of what is described as one month.

8. He was convicted of destroying or damaging property. He was convicted on the same date in 2009 for a 2008 offence of common assault for which he was sentenced to 11 months imprisonment and in respect of another offence of assault occasioning actual bodily harm, committed in January 2009, on the same date he was sentenced to another period of two years imprisonment.

9. He was on parole in relation to one or other of those offences, as I said, at the time of the commission of the two offences with which I am now concerned. He has those two convictions that I have noted from 2013. There are other findings of guilt dealt with in the Local Court including, convictions for possessing drugs, consistent with the history that emerges from the Community Corrections Service report and the psychological report.

10. With regard to the pre-sentence report it is a very lengthy report and a very detailed report. During his supervision in 2002, his progress was said to be satisfactory but subsequently it has been noted in the course of supervision that he has had a number of issues to address including ongoing illicit substance abuse issues as well what are described as “violent behaviours”.

11. What the Community Corrections Service observes is that in Mr Harvey’s case, initially his response to supervision is quite positive, but as time wears on there is more and more non-compliance. There are some details in relation to the report as to the circumstances of his breach of parole. I also note his performance in custody which is detailed at some length, most recently with a number of what could be called “prison offences” or “institutional misconduct” charges against him and I have taken that into account.

12. He has been subject to a substantial period of segregation at one point in respect of the disputes he had with correctional officers. During his time in custody he has engaged with psychology staff fairly regularly. His motivation has been to access assistance and to regulation of his emotional management and dealing with his anxiety. I note during the period of time he has been in custody that he has been in some form of protection. He fears some reprisals from other inmates, particularly Aboriginal inmates.

13. Mr Harvey, if he does not mind me saying so, is clearly a formidable man who, no doubt, is quite capable in many respects of looking after himself. But I accept that he has been in protection and I accept this is a matter I should take into account to some extent in this sentencing exercise.

14. He is engaged in some employment in various roles during his time in custody. He was employed as a cleaner at one point at one institution but at the moment, as I understand it, he has been at Parklea Correctional Centre without work.

15. His dysfunctional background, if I may call it that and I mean no disrespect to his parents of course, is referred in the report. His parents split when he was quite young and he clearly was not responsible for that and he had to move between his mother and his father. As I understand the matter his father moved to Queensland. Apparently he still maintains a relationship with his father but his mother appears to have some attitude of indifference to their relationship.

16. The prisoner has two children at the moment aged seven and four from two separate relationships. He has contact with one child but not the other. There is some form of apprehended domestic violence order in place in respect of one of those relationships.

17. He gives a background of behavioural issues as a child which I will deal with in the context of the psychological report. He concedes that up until the age of 24 he did not have much employment but when his first daughter was born that gave him some incentive to work more frequently and he has been working reasonably regularly over the years. He has got a history, as I have said, of poly-substance abuse starting at an early age and has from time to time binged both on alcohol and amphetamines, most recently immediately before he came back into custody in 2013.

18. He has a number of infractions in relation to the use of either prohibited drugs or prescribed drugs whilst in custody but he says that that is now under control.

19. With regard to factors related to offending the Community Corrections Service officer observes, and I believe it is reflected in the criminal history as well as his custodial behaviour, that Mr Harvey has a “tendency to perpetuate violent behaviours”. I will come back to the analysis of the offending, but it must be fairly said that if that be a common problem for him and one that, in fact, exhibited itself on this occasion I have taken into account what has been said by Mr Thomas most skilfully that the prisoner was not the architect of the beginning of the violence that occurred on this particular occasion. He was somewhat captive to circumstances beyond his control.

20. The prisoner denied that the offences were premeditated and I have concluded that that must be so based upon those agreed facts that are not in dispute. He told the Community Corrections Service that he, in one sense, thought he was acting in a form of defence of another and that he did react instinctively. The first proposition I could not accept but I do accept that he did react instinctively rather than in any considered way.

21. He does deny any real responsibility for his offending. A position I understand in the context of some of the objective circumstances, but certainly not a realistic position.

22. He is at medium to high risk of reoffending. There are a large of number of issues that he needs to address, both his drug abuse and alcohol abuse, his violence and his aggression and a number of emotional and other issues.

23. He has a leg injury but says that it does not greatly inhibit him. Community Corrections believed that he was polite during the interview. He appeared honest and forthcoming in relation to information given. He is a relatively young man with a troubled background as most young men coming to Court charged with offences of this type usually are. He acknowledged the character of the injuries inflicted upon the victim, however, and said that he would be willing to subject himself to supervision in the future.

24. This brings me to Mr Borenstein’s report. It is a most helpful report. Mr Thomas and I had some discussion about it in the course of the submissions. I had not fully absorbed its details and I somewhat understated in my interaction with Mr Thomas the effect of it. I do not propose to go through the personal details of the prisoner and work history and other matters. I have taken those matters into account from this history and other histories given by the prisoner.  

25. What I wish to particularly concentrate on, however, was Mr Borenstein’s history from the prisoner which I am prepared to accept. That he, as a young child, was taken by his mother to see either a psychologist or a psychiatrist. He was told that he was diagnosed with Attention Deficit Disorder or Attention Deficit Hyperactivity Disorder as well as Autistic Spectrum Disorder (ADD/ADHD/ASD).

26. He was treated with a number of medicines including Zoloft and Ritalin which can have permanent effects on people particularly when prescribed to children of a young age. His treatment was not continuous, however, because his father, who was then separated from his mother, did not agree with this medical intervention and as I understand the matter his father would stop him using medication and when he went back to his mother he would go back onto the medication. He had a lot of interruption to his schooling moving back and forth between New South Wales and Queensland and he said that his mother would on occasions, “dose me up” in relation to the medication he was prescribed.

27. He had a number of abilities though. He was a good sportsman I am told. He was captain of one of the schools he attended in primary school. He had abilities in rugby league and other sports and he gives the impression of being a naturally athletic man. But because of his underlying conditions he obviously had difficulty with attention and focus and also had low tolerance to frustration, distractibility and irritability, was prone to angry outbursts and his criminal history reflects this.

28. Clearly I accept that he has conditions that are or were beyond his control. He has difficulty maintaining relationships. His physical health includes the leg injury to which I referred but it does not impair him greatly.

29. Mr Borenstein conducted some psychometric testing. He did a Personality Assessment test which reflected the prisoner having a marked potential for emotional and/or behavioural problems. Again his criminal history reflects this. He had an elevated result on those scores under the test that reflected “acting out” behaviours. He had particular problems with impulsivity and a tendency to be compulsive. There are some other matters that I do not propose to put on the record that I have taken into account.

30. He has had difficulties in his personal relationships as I have earlier pointed out. A depression/anxiety stress scale reflects severe symptoms of depression and anxiety but whether they are reactive to his current circumstances or not neither Mr Borenstein nor I can say. He is a rather disjointed historian to be fair to the detail of Mr Borenstein’s report, but he reflected clinically as a person who was easily distracted which was consistent with the history that was given but there is no suggestion of any serious psychiatric disorder. There is no evidence of psychosis. His thought processes were normal. There was no cognitive impairment.

31. With regard to the assessment of him Mr Borenstein points out that the earlier diagnoses would explain much of his behaviour. He described much of his life as being “directionless”. He reflected upon the prisoner’s capacities as a worker and in terms of pursuing activities like reading and the like and reflected upon the prisoner’s version of events.

32. He thought the prisoner suffered what he described as a “recurrent mood disorder” in the context of ADD/ADHD. He said people who suffer these conditions as children are more likely to develop mood disorders in adult life and he pointed to the fact that Mr Harvey has an understanding that he can be impulsive, compulsive and emotionally reactive as he was in the course of committing the current offence.

33. There was a supplementary report dated 15 December 2015. He said in that report that there would be a direct nexus between the condition of ADHD and the circumstances of the offending. If I could just pause for a moment to reflect upon that aspect of the evidence, just particularly focusing on Mr Harvey. As is well known or should be well known, there are a number of authorities that have discussed the relationship of mental disorders and mental illnesses with offending and the principles to be applied.

34. In the judgment of McClellan CJ at CL in DPP v De La Rosa [2010] NSWCCA 194, his Honour in his usual erudite and succinct way summarised principles emanating from a range of authorities dating back to Scognamiglio and through Engert and later decisions like Israil and Hemsley. Essentially to summarise the position his Honour said that where a person’s mental health contributes to the commission of the offence in a material way the offender’s moral culpability may be reduced.

35. I pause for a moment to say that in this case I do not believe the condition underlying much of the prisoner’s behaviour throughout the years, reduces his “moral culpability”, if only for the reason that at this point of his life or at that point of his life four years ago he would have well known both the character of his condition and the capacity he has for impulsive behaviours.

36. The Chief Justice pointed out that persons with a condition that is related to their offending of this type may not be an appropriate vehicle for the message of general deterrence. I accept that proposition without doubt. It is a matter of degree. If one is dealing with a person with an intellectual disability that is profound or a substantial mental illness then, of course, the weight to be given to general deterrence will be in a correlated way reduced in the appropriate case.

37. I am prepared to accept in this matter that there might be some reduction or there should be some reduction to the weight to be given to general deterrence. But, on the other hand, it may be, as the learned Chief Judge at Common Law stated, that the character of the mental abnormality or “illness” may present as making the offender a danger to the community. I do not think the prisoner is a danger to the community but it certainly is a matter that warrants perhaps greater weight to be placed upon “specific deterrence”. For the reason that the prisoner by reference to his criminal history is well aware of his capacity for acting violently in an impulsive way.

38. That having been said it seems to me those matters even themselves out more or less. In this matter there is no suggestion of the prisoner suffering a mental illness or a mental abnormality that makes the circumstances of custody more difficult, as would be the case with a person with a profound intellectual disability or a mental illness such as schizophrenia.

39. That having been said, I note also that the learned Judge pointed out that the mental problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. A mental disorder of modest severity may well moderate the need for general and/or specific deterrence which actually I accept.

40. In relation to the two offenders there is a common feature in a sense of delay, although it operates in different ways. Delay of itself, of course, is not a mitigatory matter, but it may in combination with other matters be favourable to the sentencing of an offender. One such case was the decision of Todd, (1982) 2 NSWLR 517. There the Court of Criminal Appeal had to consider the appeal of an offender who came back to New South Wales to be sentenced in relation to offending which was contemporaneous with offending in another State, from memory Queensland where the offender was eventually arrested and was required to serve a lengthy term of imprisonment.

41. He came back to New South Wales many years after the offending in circumstances where there had been a path of rehabilitation. Street CJ pointed out that,

“Where there has been a lengthy postponement whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence to the circumstance that he has been left in a state of uncertain suspense and to what will happen to him when in due course he comes up for sentence on subsequent occasion and to the fact that sentencing him for a stale crime, long after the committing of the offences, calls for a considerable degree of understanding and flexibility of approach - passage of time between offence and sentence when lengthy will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence. At times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.”

76. This approach was, of course, adopted by the High Court six years later in the decision of Mill. In relation to Mr Todd, of course, that required “undue leniency” being given to him as a matter of “fairness”. In this particular matter, of course, no issue of “undue leniency” arises. But I am required to take into account the effect of delay in this particular sense.

76. In the case of Mr Boye it is to be borne in mind that he has established a life for himself in South Australia, which, of course, is now interrupted by the current proceedings. In the case of Mr Harvey there was, at least, two years of time when he was out of the state with some very minor offending in South Australia which I take into account in his favour.

77. There is another aspect of this matter that works in favour of both prisoners. This is the issue of “uncertain suspense” arising out of delay, part of which was referred to by Street CJ. One of the aspects of delay is the relevance of the conduct of “prosecuting authorities” in that regard.

78. In the case of Mr Boye I note particularly that in April 2012 State Police had a chance to extradite him and they did not. He was not extradited as it turned out for another two and a half years, maybe more, later. That is a matter to take into account. I make no criticism of the Police or the prosecuting authorities, but that is the reality of the situation.

79. In the case of Mr Harvey he came back into the jurisdiction and was in custody. But the determination of his sentence in relation to this matter has been very much delayed by the fact that Mr Boye did not come back into custody until January 2015 and in Mr Harvey’s case his proceedings were put on hold whilst Mr Boye worked his way through the system. That is not Mr Boye’s fault. It has meant that Mr Harvey has been left in a state of suspense because of the need for him to be linked to his co-accused, and I have taken that matter into account as relevant in this sentencing exercise.

80. With regard to the submissions of the parties, if I might just deal with some further matters that arise for consideration. Firstly, it was Mr Thomas who probably spent most time on the assessment of the objective facts, although Ms Fernando again skilfully reflected some of the matters raised by Mr Thomas. The Crown did not really submit to the contrary of what was put.

81. The first point to be made was exposed in the discussion I had with all counsel in relation to the matter. As I have earlier pointed out, the use of the implement, that is the didgeridoo, only came about because Ms Cole introduced it into the ‘fight’, if I could use that expression. It was not brought by either of the prisoners to the conflict. I am quite satisfied that neither of the prisoners went to the home to start violence, that the violence that did happen was either to be regarded as spontaneous or reactive or possibly opportunistic, but certainly not pre-mediated or planned. Perhaps ‘impulsive’ might be a way to describe it. It is in that context that I approach what might otherwise be seen to be the inexcusable use of violence by Mr Harvey against a woman, who, even if she had contributed to the heated atmosphere, was simply trying to defend a man who was defenceless on the ground. That having been said, there was nothing pre-meditated about what the prisoner did, he has to be given credit for desisting from a full blow with the didgeridoo, as the facts make clear. He heeded her plea. But it was too late at the time to fully pull out of the blow that was delivered. And it shows, on the part of Mr Harvey, something to his credit, although his other conduct and his involvement in the matter reflects also a loss of control. To be fair, it was not his fight and he got drawn into something that really he obviously was not concerned to be involved in from the start. He was a bystander as Ms Cole got stuck into Mr Boye. On the other hand he should have realised that he should not have got involved, and certainly Mr Boye appears to have been well able to look after himself. But essentially I accept, from what I have just said, much of what was said about these matters by Mr Thomas and Ms Fernando.

82. With regard to some of the other matters raised by Mr Thomas, he said that the prisoner’s moral culpability was low. I accept that that is so in the context of there being lack of pre-mediation or planning. Both he and Ms Fernando submitted that the offending of the prisoners in relation to their respective offences was below the middle range of objective seriousness. I accept that that is for several reasons, including the absence of planning or pre-mediation, the quick period of time over which events developed. The fact that even though there is grievous bodily harm there is no permanent disability, amongst other matters I have pointed out from the facts.

83. I should say in relation to the standard non-parole period relevant to each offence with which I am concerned that I am mindful of the terms of s 54A(2) and s 54B(2) of the Act and, of course, the related principles set out in the 2011 High Court decision of Muldrock. In respect of the issue of the legislation it is to be borne in mind that the Act was amended to, in effect, reflect the findings in the Muldrock decision. Now it is quite clear from the Act that the issue of the middle range of objective circumstances and the standard non-parole is a matter to be concerned with only the objective facts or circumstances of the case. Pursuant to s 54B(2) whatever be the relevant finding of the extent of the objective seriousness the Court has then to factor into the appropriate sentence all the other relevant matters, including relevant, mitigating and subjective issues, as well as, of course, parity issues and the like.

84. There was some debate about what discount should be given to the prisoners covered in both sets of submissions. With regard the matter, Mr Thomas in his opening gambit was somewhat optimistically seeking a discount of 25% on the basis that Mr Harvey pleaded to the alternative charge in each respect for which he is to be sentenced at the first opportunity that the Crown made that available to him. I have borne in mind everything that has been said by Mr Thomas in respect of that matter and also what has been said by the Crown, who enlightened me on some of the history. Likewise, it was put on behalf of Mr Boye that a discount should be certainly greater than 10% or 15% in accordance with the principles laid down in the Thomson and Houlton, guideline judgment in relation to discounts to recognise the utilitarian benefit of pleas of guilty that was handed down by the Court of Criminal Appeal in 1999.

85. I have ultimately concluded in the context of the principles in R v Thomson and Houlton, bearing in mind everything that was said and the further information provided by the Crown, that I should accord each offender a discount of 17 1/2 per cent, in the context of them having been committed for trial. I am appreciative of the fact that they may be somewhat captive to the way in which the Crown chose to indict them and the like, but I am not persuaded that I should afford a discount greater than of 17 and a half per cent.

86. I will take into account, as I have pointed out, all the time relevant to the offending spent in custody. In the case of Mr Harvey I have already indicated I will commence the sentence partway through the six months sentence previously imposed on him.

87. With regard the submissions of Mr Thomas concerning general and personal deterrence, particularly reflecting on the mental state of the prisoner, I have already dealt with that issue.

88. Ms Fernando, in her submissions in relation to the facts has put matters to me that I have obviously taken into account. I accept her proposition that Mr Boye and Mr Hutchin exchanged blows in what could be called a “fair fight” and things got out of hand from there that events happened quickly.

89. I bear in mind the ‘in company’ element, as a circumstance of aggravation that is pleaded, only involved two people. I have taken into account all the submissions she put in relation to matters such as the relevance of his criminal history the discount for the plea of guilty and the like. I accept that he has had some disadvantages in his upbringing, although there is no underlying mental condition that explains some of the past conduct of the prisoner. I accept the submission that was put that he has somewhat reconstructed his life in South Australia and I am giving him credit for that.

90. I have taken into account the effect of delay. I have dealt with a number of the matters raised by the Crown because they were somewhat responsive to the submissions of counsel for the accused. The Crown dealt with the issue of the discount for the plea of guilty and the aggravating factors. The Crown submitted in the case of Mr Harvey that there was the aggravating factor of the use of the implement or weapon, the didgeridoo. It is an aggravating factor that arises. Mr Thomas put to me that it is inherently an element of the offence, but the charges brought could be proven without the use of an implement or weapon. It is a limited matter of aggravation in all the circumstances, bearing in mind the use of the weapon arose out of Ms Cole’s introduction of it. I use the term ‘weapon’ in a non-pejorative sense. It is more truly an implement as Mr Thomas said.

91. The fact that the offences were committed whilst the offenders were on conditional liberty is an aggravating factor. The Crown accepted that the fight started as a fair fight. The Crown was concerned about the use of the implement after Mr Boye got the better of Mr Hutchin and I have taken that matter into account. The Crown referred to the criminal histories of the two offenders, he said their prospects of rehabilitation were limited, and that the Court should be circumspect about that, and I agree with that submission.

92. Both counsel submitted that I should make a finding of ‘special circumstances’ pursuant to s 44 of the Act. This was not objected to by the Crown and I accept that submission, in the case of Mr Harvey, in part because of the effects of partial accumulation. But I accept, as I do with Mr Boye, that there should be a period of extended supervision by the parole authority to assist them to return to community living. I believe they both need assistance and guidance in relation to a range of matters, particularly Mr Harvey in respect of drug and alcohol use, and also in relation to matters of employment and the like. Mr Boye has better mechanisms for a peaceful return to the community but he would, as would Mr Harvey, benefit from an extend period of supervision. If they are released at the end of their non-parole periods, the periods of extended supervision should reflect an adequate period for the purposes of supervision to take effect.

93. In sentencing the offenders I have had regard to s 3A of the Act. I bear in mind that the various purposes of sentencing to be taken into account are seven in number, four of which were purposes of sentencing that were discussed in Veen (No 2) in 1988 that the majority of the High Court said were “guideposts” that sometimes “pointed in opposite directions.” By reference to s 5 clearly no penalty other than that of imprisonment is appropriate. The reality is the offenders have been in custody for a substantial time. In sentencing them I note the need to make them accountable and denounce their conduct, recognise the harm done to the victims, as well as the issues of deterrence in its various forms, and seeking to promote their rehabilitation.

94. I do not believe on the facts that either offender is a risk to the community as I do not believe either of them is in a position where the community needs to be protected from them.

95. I have dealt with the aggravating factors that arise under s 21A(2). With regard to mitigating factors I conclude that the offences were not part of a planned or organised criminal activity. I cannot find that the two offenders were “provoked” in the conventional sense as I understand it.

96. In relation to their prospects of rehabilitation my approach to that is guarded but I think that the salutary experience of their extended custody in these matters there is a likelihood they will not re-offend. I am also prepared to accept that, by their pleas of guilty and by their statements to the Community Corrections officers - even though Mr Harvey sees some justification in his conduct - that they are both remorseful for what has happened. Their pleas of guilty are mitigating factors to be taken into account, but for that they receive a discrete discount.

97. Having taken into account all that is required of me, I move to making orders. Mr Harvey please stand up. In relation to count 4 you are convicted. You are sentenced to a term of imprisonment by way of a non-parole period of one year three months to commence on 18 January 2014 and will expire on 17 April 2015. The balance of sentence will be one year three months and that sentence will expire on 17 July 2016. The starting point of the sentence in relation to that offence has been discounted by 17.5%. The starting point was three years, six months.

98. In relation to count 2 you are convicted. You are sentenced to a term of imprisonment by way of a non-parole period of one year, three months to date from 18 April 2015, to expire on 17 July 2016. The balance of sentence is two years and that will expire on 17 July 2018. You will be eligible for release to parole on 17 July 2016, but that is a matter for the Parole Authority. I do not have the power to direct you be released to parole. The starting point for that sentence is four years.

99. Mr Boye please stand up. In respect of count 2, the common count with Mr Harvey, even allowing for the fact that there are multiple considerations in relation to both of you, I have concluded that you should receive the same sentence. So in relation to count 2 you are convicted, in your case I fix - in respect of that offence - a non-parole period of one year six months. I apologise, I earlier said 30 January 2015 but it is 31 January. That will commence on 31 January 2014 and will expire on 30 July 2016. The balance of sentence is one year nine months and that sentence will expire on 29 April 2018. I cannot direct that you be released to parole as the sentence is in excess of three years. The issues of your parole will be a matter for the Parole Authority.

100. In the circumstances Mr Thomas there is no need for me to make orders about your client’s current custody. I assume that is a matter between he and the authorities.

101. So that you understand the sentences, Mr Boye, your non-parole period will expire on 30 July 2016 and you will be eligible for release to parole on that date. In your case Mr Harvey your non-parole period will expire on 17 July 2016 when you will be eligible for release to parole on that date. Do you understand that?

102. Mr Crown are there any technical matters from your perspective?

103. BAKALIDIS: No your Honour.

104. HIS HONOUR: Mr Thomas?

105. THOMAS: No your Honour.

106. HIS HONOUR: Anything from you, Ms Fernando?

107. FERNANDO: No thank you your Honour - there may be a s 166 certificate that has a matter to be withdrawn.

108. HIS HONOUR: Yes you are right. I don’t think I was given a 166 certificate.

109. BAKALIDIS: No your Honour, there isn’t but in terms of Mr Boye there were two matters on a 166 certificate.

110. HIS HONOUR: Yes, affray and assault occasioning actual bodily harm.

111. BAKALIDIS: Yes, they are withdrawn if they have not been.

112. HIS HONOUR: I dismiss them.  So in relation to the s 166 certificate the matters in relation to Mr Boye - do you have the certificate?

113. BAKALIDIS: I have a copy of it. I also hand up one in relation to Mr Harvey as well. They are not signed.

114. HIS HONOUR: No, but for the sequence numbers they are helpful. In relation to Mr Boye the “backup charges” of affray and assault occasioning actual bodily harm in company are withdrawn. One is a back up charge and the other is a related charge but they cover the same matter. In relation to Mr Harvey it is the same position, the back up charge is the assault occasioning actual bodily harm in company, the related charge is affray. They are withdrawn and dismissed.

115. Mr Boye and Mr Harvey I wish you well for the future. I hope for the sake of the community and for your sakes that when you get out of gaol you stay out of situations that could lead to you going back into gaol.

116. Mr Harvey you know as well as I do that you have problems with temper and impulsivity and I know it is difficult in life, feelings of frustration and the like, but you have to control yourself and you know that in personal relationships there are aspects you have to control, and the same with you Mr Boye, this all started with the character of your relationship with Ms Cole. I am not making judgments about anyone, but I know that personal relationships create a strain for people, but you have to understand that the community is very concerned about people acting violently in the context of their personal relationships.

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Decision last updated: 12 July 2016