R v Holmes

[2011] NSWDC 33

District Court

New South Wales

Medium Neutral Citation:	R v Holmes [2011] NSWDC 33
Hearing dates:	7 to 12/12/10 and 18/2/11
Decision date:	21 March 2011
Before:	A.F. Garling DCJ
Decision:	Sentenced to a term of imprisonment which consists of a non-parole period of five years and six months and a total term of nine years and four months.
Catchwords:	CRIMINAL - sentence - cause grievous bodily harm with intent to do so - s 33(1)(b) - conviction after trial - standard non-parole period - assault with baseball bat - serious head injury - defence of self-defence rejected - no previous adult custody - twenty year old offender - on good behaviour bond at time of offence.
Legislation Cited:	Crimes Act 1900 s 33(1)(b)
Category:	Sentence
Parties:	Regina Andrew Holmes
Representation:	Mr. D. Williams (Crown) Mr. P. Massey (Offender) Ms. C. Hurford (ODPP) Ms. J. Murray (Offender)
File Number(s):	09/230045

Judgment

1. The offender was found guilty by a jury of a charge that on 5 June 2009 at Narellan in the State of New South Wales he caused grievous bodily harm to Graham Mackerway with intent to cause grievous bodily harm to Graham Mackerway. That charge carries a maximum sentence of twenty-five years imprisonment with a standard minimum non-parole period of seven years.

1. I am required to find a set of facts and I am satisfied beyond reasonable doubt of these facts. During the evening of 5 June 2009 the offender was in the company of two other persons. He had earlier been in the company of an extra person. At about 10.30pm they drove - and I will make this clear, the offender was not the driver. They drove to a service station in Camden Valley Way. The victim also was at the service station at about that time. The victim was obviously heavily drunk. He asked a number of persons at the service station for a lift and he did so in a way that would have been very annoying and perhaps even intimidating. He had a bottle of wine in his hand. He asked one of the other occupants of the car for a lift. They had a short argument. When the driver of the vehicle, not the offender, went to drive out of the service station, the victim obstructed the car and even at one stage lifted the bottle in a threatening manner, but he did not strike anyone.

1. Mr Williams drove the vehicle into Camden Valley Road and then did a right hand turn down Coghill Street. That was a deadend street. There could have been no other purpose for going down that street other than to confront the victim. The victim walked from the service station across to an area very close to the corner of Coghill Street and Camden Valley Way where he stood. He had a bottle in his hand. Mr Williams stopped the vehicle. Mr Williams and the offender got out of the car. They went to the boot. Mr Williams got out a metal baseball bat and the offender subsequently took that bat and walked from the car to a position very close to the victim. The victim did not approach the offender. There then appears to have been an argument and the offender struck the victim with the baseball bat, deliberately aiming for his head and hitting him on the head. He hit him hard and he knew the blow would cause serious injury.

1. In giving evidence the offender conceded that striking the victim was out of proportion to what the man was doing and there was never any need to hit him in that way, nor did he believe it was necessary. The victim fell immediately unconscious. He sustained serious injuries. The offender and the others simply left him. The offender fled the scene. He did not give any help to the victim, neither did the others. He also disposed of the baseball bat.

1. Indeed, those facts were fairly non-controversial. The offender defended this matter on the basis he was acting in self-defence. The jury, quite rightly, rejected that defence, it had absolutely no merit. There are two ways the jury could have looked at it, that is, did he act in self-defence, however, was his response unreasonable, or did he not reasonably believe that what he did was necessary in order to defend himself? I have no doubt that the jury, like I, would have been satisfied this was not self-defence, it was nothing to do with self-defence, it was an intentional attack on a drunk man.

1. The evidence was that the victim did have a bottle of wine in his hand. The evidence was at one stage he did raise it above his head and swing it. However, the offender had gone a considerable distance from where the car was stopped to where the victim was. There was no need for him to be anywhere near the victim, nor should he have been. There was never any necessity for him to get into a situation where he would need to defend himself. I am satisfied that he was not acting in self-defence at any time but that it was a deliberate attack. I am satisfied the attack occurred probably because he was annoyed at the harassment and interference from the victim.

1. Mr Williams' evidence was quite credible. While still in the car Mr Williams had said words to the effect of, "Let's get the guy" and the offender agreed to do so. The offender asked Mr Williams for the bat. Williams did not ask the offender to take it. The offender raised the bat into a striking position before the victim had raised the bottle. The Crown also contended for other findings arising from the evidence of Ms Ballity. I am not prepared to make those beyond reasonable doubt because I am not confident enough of her evidence. I reject the evidence of the offender, just as the jury obviously rejected parts of it. It was not impressive, it was not likely and it had no credit.

1. That is the basis upon which I am satisfied the victim came to be significantly injured. I should add this, that whilst it is said that the offender is impulsive and has various problems, from the time they were originally annoyed by the victim asking for a lift and getting in their way to the time the victim was struck, was a significant period of time. This was not an impulsive action.

1. The offender is twenty years of age. He has a criminal record which commences in 2008. He has convictions for assault occasioning actual bodily harm, assaulting an officer in the execution of his duty, resisting or hindering police officer in the execution of duty, destroying and damaging property, contravening a prohibition restriction on an AVO, other convictions of assaulting officers in the execution of their duty and contravening restrictions in AVOs, stalk, intimidate, intend fear or physical harm. He has been sentenced to two control orders, both I think of twenty-eight days, but has never been sentenced to a full-time term of imprisonment in an adult gaol.

1. I have evidence from Dr Hodgkinson concerning the injuries sustained by the victim. The doctor said that the victim:

"was taken to hospital, he was bleeding from the left ear and head. A cerebral CT scan showed a left temporal contusion and a left subdural haemorrhage. There was an undisplaced fracture of the left temporal and parietal bones and at the base a skull fracture. There was also another temporal bone fracture. These injuries indicated significant damage to the brain. They are consistent with a blow of considerable force to the left side of the head. The fractures extend from near the front of the head into the back and base of the head. It was noted that the victim had left sixth nerve palsy resulting in double vision. He had diminished hearing and he subsequently was referred to the brain injury rehabilitation unit".

He had suffered extensive damage as a result of this blow.

1. As at 20 December 2010 the victim continues to have difficulty with high level language and expression. He had returned to work on a structured vocational rehabilitation program. He has developed an anxiety state. He has returned to some duties of employment but not full duties. Ongoing permanent impairments are expected, particularly in the areas of language expression and high level cognitive impairment, for reduction in his work capacity, he has a hearing impairment, he has a hearing aid. He experiences frequent headaches and requires regular medication. He experiences dizziness. His long-term prognosis is to experience continuing difficulties, some permanent impairments of brain function. I have also read the victim impact statement which confirms those matters set out in the doctor's report.

1. On the offender's behalf there was a report tendered from Dr John Jacmon, consultant psychologist. He reached these conclusions:

"The offender's day to day functioning has been impaired by attention deficit hyperactivity disorder and anxiety. The impairment due to ADHD is likely to have existed since childhood. Anxiety has likely existed for a long period. He has at times been impaired by substance abuse. However, at the time of this offence he was not impaired by either an illegal substance or by alcohol. He has various symptoms of anxiety, insomnia, agitation, fatigue, difficulty in concentration, memory problems, he is impulsive."

1. He said:

"The offender's actions which led to offending indicated marked diminished capacity for judgment because there appeared to be little thought given to the consequences. Impaired judgment is also shown by relying on marijuana, however, at this stage he was not so affected. The offender has taken the opportunity to reflect on the incident and expressed remorse throughout the assessment for the serious injury he had caused."

1. What I know of him is that he was born in Sydney and grew up in the Campbelltown area. His father left home obviously at an early stage and his father was of little assistance to him. He saw the offender from time to time but often when the offender, as a young lad, was expecting his father to come and see him he did not. He completed his primary education and attended high school. His behaviour was challenging throughout school. He was expelled three months before he completed Year 10. He then found some work, remained in that work until he was taken into custody. He has had various relationships. I think that is a fairly accurate summary of that report. That report, of course, does explain to a degree why the offender may have acted in the way he did. It does not, of course, in any way justify what he did. The offender's grandmother also gave evidence.

1. This charge carries a standard non-parole period. I therefore have to assess where it falls in the range of this type of offence. I have heard submissions from the Crown, which would indicate it fell above the mid-range, and on behalf of the offender that it was slightly below the mid-range. I do not think there is any doubt whatsoever, and I find, that this falls above the mid-range of this sort of offence. It does not fall a significant degree above the mid-range but does fall above the mid-range and calls, in my view, for a sentence which is assessed on the basis that it is slightly above mid-range. The reason I say that is, this was an unprovoked attack. Other than because the offender was annoyed, there is no other reason for it. He was not affected by alcohol, he was not affected by drugs, nothing had occurred between them other than this nuisance behaviour. The victim was obviously very intoxicated, he was unable to defend himself. The offender, in my view, was with a group who decided - I am not saying the offender decided, I do not know - to turn down this road they had no business to be in. Williams' evidence, which I accept, is that he suggested they attack the victim and that the offender readily agreed. The offender then took the baseball bat, the offender approached the victim, he knew at all times that the victim could not have defended himself. He had a dangerous weapon with him, he knew that if he hit him, and he admitted this, with that weapon he would cause him significant damage and he did. There was absolutely no reason for this unprovoked attack. The injuries were serious and, in my view, as I have said, clearly falls at and slightly above the middle of the range.

1. I accept it is unlikely there was any real planning. There is a little remorse. The remorse, I think, is probably about the seriousness of the injuries. Other than for special circumstances to which I will return, I can see no reason why this Court would not impose the standard non-parole period. It falls right into the category of those matters which demand such a sentence be imposed.

1. There are clearly special circumstances. They are his age, he is a young man. He has never served a term of imprisonment in an adult gaol. In addition to that, there is a hope and one would hope that with rehabilitation he will be able to overcome some of these problems he has and learn that he cannot act in this way. So he needs rehabilitation. Those matters add up, in my view, to significant special circumstances, particularly his age. He must be sentenced in such a way that he realises he cannot act in this way but, more importantly, that others in the community realise that if they carry out acts such as this they will be sentenced to terms of imprisonment and lengthy terms of imprisonment. It was, as I said, a very serious matter.

1. In sentencing him I commenced, as I have stated, by finding where the offence lay in the range by concluding an appropriate sentence was the standard non-parole period subject to special circumstances. That standard non-parole period is seven years in gaol. That means a head sentence of nine years and four months. I have no reason for departing from that and that will be the head sentence. However, as I have said, there are some significant special circumstances and the most significant of those, of course, is his age. He is a very young man. He acted in a totally unacceptable way. He has caused very serious injury to another person. I should add that he was on a bond at the time he committed these offences. He has a criminal record for offences of violence in the past. I have to take all those matters into account when I am fixing a non-parole period. Because of his age and the fact he can be rehabilitated I have concluded that he should have a significant period on parole once his non-parole period concludes and that is the way I have structured this sentence.

1. I convict you and sentence you to a term of imprisonment which consists of a non-parole period of five years and six months and a total term of nine years and four months, both to date from 15 October 2009. You will be eligible to be considered for release to parole on 14 April 2015. I find special circumstances: his age, rehabilitation and no previous adult custody.

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Decision last updated: 27 May 2011