R v Hendra - [2012] NSWDC 198

District Court

New South Wales

Medium Neutral Citation: R v Hendra [2012] NSWDC 198
Hearing dates: 26 October 2012
Decision date: 16 October 2012
Before: Berman SC DCJ
Decision:
Sentenced to imprisonment for a period of 18 months with a non-parole period of 9 months.

Catchwords: CRIMINAL LAW - Sentence - Common assault - Security guard - Vulnerable victim - Lack of remorse - Night club
Category: Sentence
Parties: The Crown
Menelaus Hendra
Representation: Mr C Patrick - The Crown
Mr G Thomas - The Offender
Director of Public Prosecutions

File Number(s): 2011/288740

SENTENCE

HIS HONOUR: Security guards at licensed premises are part of the solution to the problem of drunken violence, but, as the events which led to the conviction of the offender on a charge of assault have demonstrated, security guards can also be part of the problem.

Mr Nicholas Barsoum went to the Ivy one evening. No doubt he was hoping to have a good time. In the early hours of the following morning he was punched by an exgirlfriend. He did nothing to provoke this. Quite understandably he got cross and grabbed his exgirlfriend as she ran away. This led to the intervention of security guards. They told him to leave and escorted him out of the premises. Security camera footage showed what happened. Mr Barsoum remonstrated with the security guards, wagging his finger at them. One might be forgiven for thinking that most of us in his position might have done something similar. Mr Barsoum, I repeat, did nothing to provoke the attack upon him by his exgirlfriend. He was entitled to be at least disappointed at the situation which saw him being ejected from the Ivy in those circumstances. It is important to understand that there is no suggestion at all that Mr Barsoum was in any way violent towards those who were escorting him off the premises. Despite that, one of the security guards, probably a man by the name of Paul Fenukitau, punched him in the face as he was leaving. This was not captured on CCTV but no doubt it occurred. This punch caused a significant injury; it caused Mr Barsoum to be bleeding heavily from his lip, an injury which later required stitching in hospital. Mr Barsoum sent a text message to his friends. They assembled outside the Ivy and began walking towards the security guards, including the violent Mr Fenukitau, who were controlling access to the Ivy. The evidence of Mr Barsoum and his friends was that they wished merely to find out which security officer had hit Mr Barsoum and make a complaint.

What happened thereafter is captured on closed circuit television. It is difficult to decide whether violence first came from the security guards or Mr Barsoum and his friends but given what happened to Mr Barsoum later it simply does not matter. Within a very short space of time the security guards had isolated Mr Barsoum. He was then set upon by a number of guards…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hendra

Details

AGLC: R v Hendra [2012] NSWDC 198
Case: [2012] NSWDC 198
Decision Date: 16 October 2012

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v Hendra involved the defendant, who had been charged with common assault against a vulnerable victim in a nightclub setting. The victim, a patron of the nightclub, was in an intoxicated and vulnerable state when the defendant, who was employed as a security guard, assaulted them. The defendant was alleged to have used excessive force during the altercation, resulting in injuries to the victim. The case proceeded to trial where the defendant pleaded guilty to the charge of common assault. The primary focus of the court was to determine an appropriate sentence that would reflect the severity of the offence and the circumstances surrounding it.

The legal issues before the court included assessing the appropriate penalty for a common assault committed by a security guard against a vulnerable victim, as well as considering the defendant's lack of remorse and the impact of alcohol on both parties. The court was required to weigh these factors alongside the principles of justice, deterrence, and rehabilitation. The defence argued for a lesser sentence due to the defendant's otherwise unblemished character and the influence of alcohol, while the prosecution emphasised the severity of the assault and the need for a sentence that would adequately reflect the gravity of the crime.

The court considered the nature and circumstances of the assault, the vulnerability of the victim, and the defendant's lack of remorse. It noted that the defendant, as a security guard, had a duty to protect patrons and should have exercised greater restraint. The court found that the assault was unprovoked and that the defendant used excessive force. Given the defendant's lack of remorse and the need to deter similar offences, the court determined that a custodial sentence was necessary. The sentence imposed was 18 months imprisonment with a non-parole period of 9 months, reflecting the seriousness of the assault and the need for general deterrence.

Orders

Orders of the court

Sentenced to imprisonment for a period of 18 months with a non-parole period of 9 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Hendra [2012] NSWDC 198
Hearing dates:	26 October 2012
Decision date:	16 October 2012
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment for a period of 18 months with a non-parole period of 9 months.
Catchwords:	CRIMINAL LAW - Sentence - Common assault - Security guard - Vulnerable victim - Lack of remorse - Night club
Category:	Sentence
Parties:	The Crown Menelaus Hendra
Representation:	Mr C Patrick - The Crown Mr G Thomas - The Offender Director of Public Prosecutions
File Number(s):	2011/288740