R v James Ian Longworth

[2016] NSWDC 132

District Court

New South Wales

Medium Neutral Citation:	R v James Ian Longworth [2016] NSWDC 132
Hearing dates:	28, 29 January 2016
Date of orders:	18 February 2016
Decision date:	18 February 2016
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	1. The offender is sentenced to four years and ten months imprisonment. The sentence commences on 14 February 2016 and expires on 13 December 2020. I fix a non-parole period of three years that will commence on 14 February 2016 and expire on 13 February 2019. The offender is eligible for parole on 13 February 2019. 2. The backup charge of assault occasioning actual bodily harm is withdrawn and dismissed.
Catchwords:	CRIMINAL LAW – particular offences – offences against the person – assault – circumstances of aggravation and aggravated assaults – one punch causing grievous bodily harm to bar security; CRIMINAL LAW – sentence – relevant factors – nature and circumstances of offence – consequences of offence or impact on victim - whether injury (brain damage) in upper reaches of grievous bodily harm – relevance of offender’s depression and intoxication – knowledge of consequences of one punch – general deterrence on offender – impact of media coverage - whether or not full-time custody required
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Field v R [2015] NSWCCA 332 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Angelos (unreported, Haesler SC DCJ, District Court of New South Wales, 4 October 2014) R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31 R v Mooney (unreported, Young CJ, Victorian Court of Criminal Appeal, 21 June 1978)
Category:	Sentence
Parties:	Regina (Crown) James Ian Longworth (Offender)
Representation:	Counsel: Mr J Pickering SC (Crown) Mr H Dhanji SC with Ms C O’Neill (Offender)   Solicitors: Director of Public Prosecutions (NSW) (Crown) Nyman Gibson Miralis (Offender)
File Number(s):	2013/271287
Publication restriction:	Non-publication order re material in Exhibit VD2 in red square brackets, personal addresses or telephone numbers contained in VD2 until order revoked. Non publication interim orders applying in the Commonwealth of Australia to Exhibit A, items in Exhibit B, including photographs 23, 24, 25, 26, 27 and 28 behind the first tab, which is yellow and photographs 21, 22, 23, 24, 25 and 26 behind the second tab, which is orange and Exhibit C until order revoked. Non-publication order re address of accused.

Judgment

1. Sometimes serious crimes are committed by good people. Often such cases involve car accidents. A driver has a momentary lapse of attention and someone else is killed or seriously injured. The driver may be an upright citizen who contributes to society but they then face a very serious charge involving the death or grievous bodily harm of a fellow citizen. That person in a short moment faces a prison sentence.

2. This case is another example of such a crime. James Longworth has a host of character references confirming that he is a very decent man. But on the night of 6 September 2013 he encountered another very decent man. That man is Fred Taiba. He was doing his security job at a bar here in Sydney. James Longworth had been drinking a lot. He was not an aggressive drunk but the experienced Fred Taiba could see he was drunk enough to refuse him entry. James Longworth tried to talk his way in but Fred Taiba maintained his refusal. Then James Longworth did something completely out of character. He stepped away but then launched a heavy blow to Fred Taiba when he was engaged with other patrons. Fred Taiba had no idea it was coming. He fell to the hard floor and received a serious brain injury.

3. James Longworth was arrested and charged with an assault occasioning grievous bodily harm committed with intent. As an alternative he was charged with recklessly causing grievous bodily harm.

4. The case came to trial before a jury in October last year. The jury returned a jury of not guilty of the first charge involving an intent but found James Longworth guilty of recklessly causing grievous bodily harm.

5. In accordance with the jury verdicts, and if I have not done so already, I acquit James Longworth of the more serious offence involving intent but I convict him of recklessly causing grievous bodily harm.

6. That crime is an offence against s 35(2) of the Crimes Act 1900. Parliament regards the crime as so serious that it has fixed a maximum of ten years imprisonment to the crime. Not only that, Parliament has indicated that the crime should attract a standard non-parole period of four years.

7. What I will do now is to briefly recount what happened which led to the crime. I will make reference to the evidence before me and to some of the issues I need to resolve in the sentence proceedings. I have already referred to what happened at the scene. What preceded that was a tragic family story. James Longworth was brought up in a stable and loving family. He was working overseas in London. Sadly his father suffered from cancer. James Longworth visited him around Easter 2013, he then went back to London. His plan was to return to say goodbye to his father once his father became close to death. However, the progress of his father’s disease was quicker than expected. His father deteriorated suddenly and died in June 2013. The deterioration was so sudden that James Longworth was not able to get home to say goodbye to his father. He got home for the funeral.

8. The impact of his father’s death, of missing his father’s death and therefore not being able to say goodbye had a significant impact on James Longworth. There is plenty of evidence to that effect. James Longworth himself said as much. His mother gave evidence to that effect, as did his sister and his uncle. For some months he was at a loss. He was living at home with his mother and his sister and her partner. He was lethargic and disinterested in life. He did not engage in the community. Things were becoming tense in the family home. Finally, his uncle put him in touch with an agency that offered him a job. He was interviewed and secured the job. It was not a demanding job but nevertheless it meant he had to get up and be at work and engage in work.

9. He had been doing that job for a couple of weeks when a further serious issue arose within the family. It became apparent that the ashes of James Longworth’s late father had been misplaced. In fact in the end, thankfully, they were located but for some days there was a state of uncertainty. This obviously upset Mrs Longworth. It equally obviously upset James Longworth. The news came a couple of days before the assault I have described. Enquiries were made by Mrs Longworth of the funeral directors. On the day of the assault, while he was at work, James Longworth found out that those enquiries had so far been fruitless. He headed home. It was a Friday night so he stopped for a drink and met some friends. They were in a bar in the city. They watched the Swans match on TV that night. James Longworth drank a lot of beer that night. He was very intoxicated.

10. As I said, he was a quiet drunk and showed no signs of aggression until later on. He was with some mates watching the Swans. After the match they decided to kick on. They went to the bar where Fred Taiba worked. They tried to get in. Fred Taiba indicated that James Longworth was not sober enough to enter the bar. Obviously he was responsibly discharging his duties, not only to his employer but to members of the public who would attend the bar. There were discussions amongst the young men and Fred Taiba. That is apparent from the CCTV which I have viewed again. James Longworth made one or two attempts, it seems, to talk Fred Taiba out of his decision but Fred Taiba maintained his position and refused him entry. The men then stepped a few metres away outside the entrance to the bar. They were apparently talking among themselves deciding what to do next. Some of them started heading off.

11. James Longworth was standing there. He looked at Fred Taiba and then, as I said, he launched a heavy blow to Fred Taiba’s head. At the time Fred Taiba was not facing James Longworth. He was turned away from him because he was talking to other patrons. James Longworth caught Fred Taiba completely by surprise. At least one witness said, “He fell like a tree”. He hit his head on the hard surface and was very seriously injured. James Longworth tried to run away but others caught up with him. He was arrested and charged and spent about three days in custody.

12. I had before me, of course, the evidence that was called in the trial. In addition evidence was called in the sentence proceedings from Mrs Danielle Taiba, Fred Taiba’s wife. James Longworth himself gave evidence in the proceedings, as well as his sister Jacquelyn Longworth. The prosecution called Dr Yvonne Skinner, an experienced forensic psychiatrist. The defence called Dr Bruce Westmore, also an experienced forensic psychiatrist, as well as Mr Longworth’s treating psychologist, Sam Borenstein.

13. I have reports from the various specialists who treated Fred Taiba. I have Mrs Taiba’s victim impact statement and photographs of him in hospital. I have from the defence a letter of apology from James Longworth, as well as a large number of references. The prosecution papers include a medical report from Dr Skinner and the defence exhibits include medical reports from Dr Westmore as well as Mr Borenstein. In addition there is affidavit material and, as I have already said, a large number of references.

14. There were some issues which were debated in the sentence proceedings. I must record here, as I have already, how competently each party was represented. The Director of Public Prosecutions was represented by the Deputy Director, Mr John Pickering SC, and Mr Longworth was represented by Mr H Dhanji SC who was accompanied in the sentence proceedings by Ms C O’Neill. The trial and the sentence proceedings were conducted robustly, fairly and in a very helpful manner so far as I was concerned.

15. The issues which became apparent in the sentence proceedings and which I should resolve are these. First there is a question of whether or not Mr Longworth could serve a prison sentence but not in full-time custody; examples are a suspended sentence or an intensive correction order. Sentencing legislation in New South Wales provides that a judge ought not to sentence an offender to prison unless the court is satisfied “having considered all possible alternatives, that no penalty other than imprisonment is appropriate”: see s 5 of the Crimes (Sentencing Procedure) Act 1999. No sentence other than imprisonment is appropriate in this case and Mr Dhanji acknowledged as much. One of the issues in the case was whether that could be served other than by a full-time detention. That cannot be the case in my opinion. In order to fix a sentence which would be served in the community the gaol term itself would need to be two years or less. This is not a case which can attract a gaol term of two years or less. In due course I will sentence James Longworth to full-time custody.

16. The next issue which I should resolve is whether or not the injury was in the upper reaches of grievous bodily harm. Mr Dhanji acknowledged that the injury was very serious and that Mr Taiba continues to suffer the ongoing effects as a result of the trauma but noted that he was assessed at making an excellent recovery considering the severity of the injury. On the other hand, Mr Pickering referred to the medical evidence and the victim impact statement which he said supported his argument that the injury sustained by Mr Taiba was in the upper reaches of grievous bodily harm. Mr Dhanji warned against accepting that any brain injury would necessarily be in the upper reaches and reminded me that grievous bodily harm necessarily starts with really serious bodily injury.

17. I accept both of those submissions but the following features and consequences of the grievous bodily harm suffered by Mr Taiba place this injury, in my opinion, in the upper reaches of grievous bodily harm but, I acknowledge, falling short of a worst type of case.

18. Mr Pickering referred me to the evidence of Dr Jonker, the neurosurgeon who operated on Mr Taiba. Dr Jonker noted that Mr Taiba’s coma scale was 7 when he was brought to hospital and that a CT scan “revealed a right sided subdural haematoma”. Dr Jonker told the court and the jury (at T18) that a coma figure of 8 or less is considered to be comatose. Dr Jonker described the surgery he had to undertake. It involved opening the side of Fred Taiba’s head to expose the brain and taking off the window that was overlying the meninges. He was worried about the severity of the injury which meant that the bone could not go back straightaway because the brain could swell further and there could be a secondary injury, so the window of bone was left out. It was necessary to leave the brain exposed for some time. This procedure occurred at St Vincent’s Hospital where Mr Taiba was admitted on 6 September 2013. On 16 October 2013 he was transferred to the neurosurgical ward at Liverpool Hospital and on 21 October 2013 transferred to the brain injury unit in that hospital. Then he had to return to St Vincent’s for the cranial reconstruction required because of the initial surgery leaving the brain exposed. That occurred on 31 October 2013.

19. Mr Taiba did not go home until almost three months after the injury, namely on 29 September 2013.

20. Mr Taiba was also treated by Dr Ahamed Beerabangsa. That doctor is a specialist in rehabilitation medicine. That doctor expressed the opinion that as a result of the assault Mr Taiba sustained a severe traumatic brain injury. Dr Beerabangsa went on to say that the injury “has resulted in skull fractures and a permanent brain injury”. The doctor said that the “brain injury was critical and life-threatening and required emergency cranial surgery”. The doctor went on to say that the “clinical findings, CT brain scan findings of extensive damage to the brain, the prolonged period of [posttraumatic amnesia] of 40 days, and the findings of the neuropsychological assessment all confirm the very severe nature of the brain injury he has sustained”. In a supplementary report Dr Beerabangsa said that Mr Taiba has “developed seizure episodes”.

21. The medical evidence given by the doctors was supplemented by Mrs Taiba who gave an account of the impact which this injury and surgery has had on her husband in day‑to‑ day activities. She said (at T11) that “one minute he could be on one scale of the spectrum being happy and then the next second he could be on the bottom of the scale, angry or upset or sad. So in that split second he can change his personality, his temperament in that split-second. People, like if we go out somewhere and if I can see that he looks uncomfortable I need to withdraw from that situation as quickly as possible just so things don’t escalate. He has silent seizures, so we need to monitor that as well.”

22. As I might have mistakenly said, it was not Mrs Taiba who gave a victim impact statement but Mr Taiba himself. Mrs Taiba gave the evidence that I have just quoted.

23. In his victim impact statement Mr Taiba set out the ways in which “my life has been impacted”. It included an inability to work as a security officer to support his family, an inability to play the sports he used to play, an inability to play recreational sports with family and friends. He finds that he now has to take about 140 tablets “to manage seizures and ongoing medical issues” since the assault. He cannot drive because he does not yet have a clearance. That is because of his seizures. He thinks that if he cannot get his licence back he will need to find other work. He fears that if he loses his job he would be at high risk due to the severity of his brain injury and therefore an unattractive candidate to appoint. He cannot do “everyday household maintenance due to having seizures”. He pointed out that James Longworth’s attack “scarred me for life, from the front of my forehead around to the back of my head” and that the “scar is a constant reminder of what happened that night and will be with me till the day I die”.

24. Returning to Mrs Taiba, she described the impact on her husband’s employment (at T12). She said that they “started off doing one day a week just to get him, catching a train on his own. So we had to catch a train with him to make sure he caught the train on his own, he felt safe. So we progressed from say month to month, say we do one day, then two days, then build it up to five days. He is not doing what he was doing before. He is doing lighter duties but he just wanted to get back to work”.

25. I have little hesitation in light of that evidence comprising the medical evidence and the evidence given by Mr and Mrs Taiba that the injury sustained by him was within the upper reaches of grievous bodily harm.

26. Another issue which was agitated by Mr Pickering and Mr Dhanji in the sentence proceedings was Mr Longworth’s mental condition of depression. Related was the significance of any contribution of that condition to his offending behaviour compared with the contribution of alcohol to his offending behaviour. I should explain how that issue arose and why there is a tension. Very many of the factors relevant for a judge to take into account when sentencing an offender are set out by Parliament in s 21A of the Crimes (Sentencing Procedure) Act. Section 21A (5AA) provides that in “determining the appropriate sentence for an offence, the self‑induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor”. In this case, as I have said, Mr Longworth was very drunk, he acknowledged his drinking and its effect and there was scientific evidence called by the prosecution in the trial as to the likely high extent of his intoxication.

27. On the other hand James Longworth had been depressed. The psychiatrists acknowledged as much. Arguably James Longworth was still depressed at the time of the offence. A mental health problem can be a mitigating factor for a judge to take into account in sentencing an offender. So Mr Pickering was arguing to reduce the significance of depression and he was arguing to attribute more significance to the alcohol. Mr Dhanji was arguing that his client’s depression remained a significant contributing factor despite the alcohol. As I have said, each of them called highly qualified forensic psychiatrists and, in addition, Mr Dhanji called his client’s treating psychologist Mr Borenstein.

28. I should say at this point what the Court of Criminal Appeal has said about the significance of a mental health issue. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 McClellan CJ at CL, as his Honour then was, made reference to the settled principles to be applied in sentencing where “an offender is suffering from a mental illness, intellectual handicap or other mental problems” (43 at [177]). His Honour said that the principles could be summarised as being relevant in the following ways where “the state of a person's mental health contributes to the commission of the offence in a material way; the offender's moral culpability may be reduced”. His Honour added that the “need to denounce the crime may be reduced with a reduction in the sentence”. A mental health condition “may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed”. A mental illness or mental health condition “may mean that a custodial sentence may weigh more heavily on the person”. Finally, such a condition “may reduce or eliminate the significance of specific deterrence”. A number of those were live issues in these sentencing proceedings.

1. I have reviewed the helpful evidence of Dr Westmore, Mr Borenstein and Dr Skinner, and these are my findings. Dr Westmore did have an advantage in seeing Mr Longworth, although it was well after the event. Dr Skinner acknowledged that there could be some advantage in seeing a patient. Dr Skinner’s opinion was based upon reading other material. It was common ground that Mr Longworth suffered a major depressive disorder between the death of his father and returning to work a couple of weeks before the crime. That condition had improved enough for James Longworth to engage in undemanding employment but there was an exacerbation of his depression and grief on learning of the loss of his late father’s ashes. I accept Dr Westmore here, as well as Mr Borenstein. Dr Skinner acknowledged that such news had the potential to cause a setback. There was no evidence of any predisposition to violence in Mr Longworth and Dr Skinner accepts the significance of that history. Both doctors and Mr Borenstein agree about the contribution of alcohol in removing inhibitions and in acting impulsively in a case such as this. Mr Longworth’s drunkenness was clearly a contributing factor to what happened.

2. Dr Skinner acknowledged on 29 January 2016 (at T54) that “the alcohol was a factor that made this person lose control, so that he acted on an emotion he would not have acted on had he not been drinking”. She agreed with the proposition that “depression can cause a reduction in frustration tolerance” and acknowledged that “depression might be a contributing factor” in the behaviour of Mr Longworth on the night.

3. Dr Westmore expressed his opinion on the same day (at T23) in the following terms -

“It’s hard to isolate I think in any sensible percentage terms, how the alcohol affected him and how the depression affected him in that way. Because there’s a very unfortunate combination of things that occurred at that time, which resulted in his behaviour. I can’t really be more specific than that. We know that depression does obviously affect judgment, affect our capacity to assess our environment properly, as does alcohol. And we know that depression, certainly in males, depression and anger can be closely related clinically. So the fact that, I think it was an act of anger, the emotion of anger was present at the time and I think that anger arose from his depression primarily and the impulsiveness probably from the alcohol.”

32. I accept on the balance of probabilities that the news of the loss of his late father’s ashes a day or two beforehand resulted in an exacerbation of James Longworth’s depression and grief. I accept that his mental condition of depression was a contributing factor to this crime, and therefore becomes a mitigating factor in accordance with the principles with which I have referred to. Mr Pickering acknowledged that there is an element of contribution which the depression can make but argued that it was not significant. At the same time Mr Longworth’s intoxication explains his behaviour but in no way mitigates it.

33. There was another issue about the extent to which James Longworth knew about the consequences - the very serious and tragic consequences - that one punch to the head of an individual can have. He was cross‑examined about that by Mr Pickering during the trial (over T279 – 280). Mr Pickering asked him about “the phenomenon of one punch death”. He was asked what he thought would happen “if you struck someone in the head when they didn’t know that they were going to be struck with a forceful punch?” Mr Longworth said the he “didn’t know what to expect”. He went on to explain that he would not expect a serious consequence “from one punch”. He acknowledged that maybe multiple punches that somebody would be unconscious or severely injured, “but one punch, no” (T279). He was cross‑examined about watching boxing matches and maintained that he did not think that one punch could knock someone unconscious and cause such a serious injury.

34. Here it is important to state a legal principle that binds me in resolving disputes. The prosecution asks me to find that Mr Longworth must have been aware of the impact of one punch. If he was aware, that would tend to aggravate the circumstances of the crime. In turn that means, according to the High Court, that I must be satisfied beyond reasonable doubt before I reach that conclusion. Mr Longworth was cross‑examined on the issue. He maintained that he did not appreciate the possible consequences of the punch. Mr Dhanji reminded me that the jury verdicts did not necessarily involve the rejection of his client’s evidence. The jury found him not guilty of acting with intent. The fact that they found him guilty of reckless behaviour included turning his mind to the possibility of causing actual bodily harm but did not involve the jury considering the impact of alcohol - that was a legal component for the jury to take into account in their reason. That meant, Mr Dhanji argued, that I should not conclude that the jury rejected his client’s evidence. I think there is force in that argument. In addition, I have seen James Longworth give evidence. My impression is that he gives his evidence in a way consistent with trying to tell the truth as best as he recollects it. He did not give me the impression of being overly defensive or prevaricating in his answers.

35. I am not satisfied beyond reasonable doubt by the prosecution that he understood the potential of a “one punch”.

36. Next I turn to the punch itself. There was an issue here agitated between Mr Dhanji and Mr Pickering. Mr Pickering points out that Mr Longworth was refused service and then he waited for an opportunity to strike Fred Taiba while he was not looking. Mr Pickering argued that I could conclude from viewing the CCTV that Mr Longworth was waiting for his victim to be distracted and then launched his aggressive and violent punch. In other words, he argued that there was some degree of planning and that the punch itself was not instinctive.

37. On the other hand Mr Dhanji invited me to look closely at the CCTV footage. He argued that there was no sufficient evidence of contemplation or calculation involved in what I could see. He invited me to look carefully, including the quality of the footage. He argued that the quality of the footage did not allow for the degree of accuracy for me to find what the prosecution says. I cannot conclude, he said, that it was a calculated process. He reminded me of the evidence of the turmoil in his client’s mind. In that moment there was significant turmoil caused by a range of factors.

38. Once again, I need to be satisfied of Mr Pickering’s argument. I am not. I do not accept that there was a degree of planning or calculation before James Longworth punched Fred Taiba. However, at the same time the punch was not immediate and instinctive. There were a few seconds between his rejection and his punching Mr Taiba. At the same time I accept what Mr Pickering says, that when he punched Mr Taiba, Mr Taiba was not watching, he was in engaged with someone else. In other words, Mr Longworth’s punch hit Mr Taiba whilst he was distracted, so the act was not accompanied by planning or calculation but nor was it immediately spontaneous or instinctive.

39. I need to add something now about what the Courts have been saying about this kind of crime. The Court of Criminal Appeal re-determined the sentence regarding the tragic killing of Thomas Kelly. That was, of course, a different kind of case because it resulted in the death of Mr Kelly. But the Court -comprising Bathurst CJ and Johnson and R A Hulme JJ said this in R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31 at [216] -

“Secondly, the commission of offences of violence, including manslaughter, in the context of alcohol-fuelled conduct in a public street or public place is of great concern to the community, and calls for an emphatic sentencing response to give particular effect to the need for denunciation, punishment and general deterrence.”

40. Their Honours went on to say in the following paragraph -

“General deterrence and retribution are elements that must assume greater importance when the crime in question is a serious one, has been committed in a particularly grave form and its contemporary prevalence is the cause of considerable community disquiet.”

41. I acknowledge that their Honours were dealing with a case of manslaughter. The circumstances of the crime may have been marginally different so far as the attack was concerned. However, it is important to note their Honours’ reference to the “contemporary prevalence” of such a crime being “the cause of considerable community disquiet”.

42. In sentencing another offender for the same kind of crime as I am sentencing James Longworth for, Judge Haesler SC made the following comments in R v Angelos (unreported, District Court of New South Wales, 4 October 2014) –

“Crimes of violence on public streets cause harm, not just to their immediate victims and the victims’ friends and family. They also caused disquiet and frustration among the general public. They break down the bonds that bind the community, bonds of mutual respect and care for others.”

43. Finally, in Field v R [2015] NSWCCA 332, RA Hulme J, with whom Macfarlan JA and Johnson J agreed, referred at [143] to the “clear need for sentences that will serve the community interest of deterring others from public acts of aggression that may, and in this case did, have tragically fatal consequences.” Fortunately for Mr Taiba, the consequences of James Longworth’s assault were not tragic in the sense of causing his death. However, they have made the very serious impact on his person and his personality in the ways that I have described.

44. Finally, I should make some finding about the relevance of general deterrence. I have already referred to the authorities and it is clear that general deterrence - an important sentencing principle - looms large as very significant in this case. Mr Dhanji argued that his client was not “an angry drinking young man” and there was a fairly limited audience to which I could send the message of general deterrence in this case. He described that audience as people who were drunk and depressed but with no pre-existing notice of any violent tendencies. Mr Pickering acknowledges that there must be some allowance made for James Longworth’s depression but that the intoxication had a very significant role to play and being self‑induced was not relevant.

45. In many cases there are likely to be underlying psychological or psychiatric factors - depression is one - but the crime remains one of alcohol - fuelled violence. That offence in this case is one of the kind that attracts general deterrence. This is not a case, in my opinion, where Mr Longworth’s mental health condition makes such a contribution that there should be a very significant reduction in the weight I put on general deterrence.

46. Mr Dhanji referred to what the High Court had said in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [53]. Their Honours referred to the judgment of the Victorian Court of Criminal Appeal in R v Mooney (unreported, 21 June 1978) and extracted the following “frequently cited” passage from the judgment of Young CJ at 5 -

“General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.”

47. That is why I propose to allow the depression to have some impact but because the depression acted in combination with the disinhibiting effect of the alcohol, the need for general deterrence remains very significant.

48. There are some other factors that I should refer to here. I should record them because they are relevant to the sentence which I will impose. Both parties agree that, because Mr Longworth had very early offered to plead guilty to the offence that he was ultimately convicted of, he would be entitled to a discount of 25% on the sentence which I impose. That is in accordance with legal principle.

49. Mr Longworth, after he was arrested, spent some three or so days in custody and I will backdate the sentence by some days to take that into account.

50. Mr Longworth is aged 35.

51. It is important to record certain mitigating factors which are relevant in his case and that I must take into account in accordance with s 21A of Crimes (Sentencing Procedure) Act. Mr Longworth has no criminal record whatsoever. A person who is sentenced is entitled to call that into account when he or she is being sentenced for the first time.

52. Mr Longworth is entitled to have taken into account his good character. People who have known him very well, some all his life, speak of him as a very decent human being. This offence was completely out of character; I accept that.

53. In addition, the referees talk about his obvious remorse at what he has done. I myself accept that Mr Longworth is demonstrably remorseful for the offence that is he has committed and particularly for the impact that it has had on Mr Taiba and his family. In accordance with s 21A(3)(i) Mr Longworth has given evidence of his remorse. In addition he has accepted responsibility for his actions and acknowledged the injury, loss and damage caused by what he did.

54. Mr Longworth is unlikely to reoffend. That is obvious to me from the evidence that he gave but it is put beyond doubt by the evidence of Dr Westmore and Dr Skinner.

55. Mr Longworth has very good prospects of rehabilitation.

56. On the other hand, there is an aggravating factor here that I must take into account. That is provided for in s 21A (2)(l) of the same Act. Mr Taiba in carrying out his job was “vulnerable”. That provision gives examples that include “the victim’s occupation”. Although they do not specify a security guard, examples include a public transport worker, a bank teller or a service station attendant. Mr Pickering emphasised in his submissions Mr Taiba was employed by his employer to protect members of the public. He was protecting patrons of the bar and anybody in the vicinity from the actions of people who may be intoxicated. He is by that very occupation in a vulnerable position. He was also doing a service to members of the public who wanted to enjoy their evening and their alcohol at quite a late stage of the night. That vulnerability is an aggravating factor in this case.

57. There was some argument about the impact of the media coverage which this case has received. Mr Longworth gave evidence about the impact on him of that media coverage. It is the impact on him of course that is relevant. It was intense but it was not extreme. Mr Dhanji acknowledged that. He also acknowledged that the impact on the family is not relevant, just on Mr Longworth because it is what Courts regard as an additional form of punishment. But he acknowledged, and I agree, that it is not a determinative factor; it goes into the mix to be taken into account. In a sense if one commits a crime such as this, one must expect that. Nevertheless, it has had an additional impact on Mr Longworth.

58. There was some reference to the delay in the case being heard between 2013 and 2015. That is not a factor to which I give any weight in favour of Mr Longworth. There was appropriately a committal proceeding and then the case came up for hearing and was heard when it was first listed.

59. His moral culpability is reduced somewhat by his depression. I add “somewhat”.

60. Specific deterrence is reduced to negligible because it is most unlikely that he will reoffend.

61. It is relevant to observe that a custodial sentence may weigh more heavily upon him. He will receive reduced attention from his personal GP and his psychologist but on the other hand he will receive treatment in the prison system if it is needed. He will receive appropriate attention. It may be that the attention he receives is not as great as he is receiving in the community. Mr Borenstein says as much but to my mind it is not a significant factor.

62. I turn now to the sentence that I will impose on James Longworth. Bearing in mind the seriousness of the assault and the seriousness of the impact on its victim - being in the upper reaches as an example of grievous bodily harm - but on the other hand bearing in mind, as I am obliged to, the factors that are mitigating for Mr Longworth and that I have referred to, bearing in mind, as I must, the maximum penalty of ten years imprisonment and as an additional factor the standard non-parole period of four years, I regard an appropriate head sentence as being one of six years and six months imprisonment. However, Mr Longworth is entitled to the 25% discount that I have already referred to. That means that the appropriate sentence for him in my view is one of four years and ten months imprisonment.

63. For a sentence of four years and ten months imprisonment the sentencing legislation envisages that a non-parole period would ordinarily be 75% of that head sentence. In this case that would be three years and seven months imprisonment. But a judge can reduce the non-parole period if there are special circumstances. Amongst the special circumstances Mr Dhanji outlined were that it would be harder for his client in custody because of the reduction in the treatment that he is receiving from Mr Borenstein. That has some impact, I accept. It will also be, for him, the very first time in custody. I regard those factors as relevant and I propose to reduce the non-parole period. But I also bear in mind that Parliament has fixed a standard non-parole period of four years for this offence. I regard an appropriate non-parole period as one of three years imprisonment.

HIS HONOUR:   James Longworth, I am going to sentence you now, if you would stand up please.

64. I sentence you to four years and ten months imprisonment. I will backdate it to commence on 14 February 2016. It will therefore expire on 13 December 2020. I fix a non-parole period of three years that will commence on 14 February 2016 and it will expire on 13 February 2019. The first date on which you will be eligible for parole is 13 February 2019. Whether you get parole or not is a matter for the Parole Authority.

HIS HONOUR:   Have a seat for a moment, Mr Longworth. Ms Anderson and Mr Gibson, two things: perhaps first for Mr Gibson, the prison authorities make it clear that psychological and psychiatric reports about prisoners are very helpful in the assessment process. Do you have instructions, and my associate sends them.

GIBSON: Yes.

HIS HONOUR: We got Dr Westmore and Mr Borenstein.

GIBSON: I’d ask that they go.

HIS HONOUR: Both of them. Do you want Dr Skinner included or not?

GIBSON: No, your Honour.

HIS HONOUR: No. Good.

GIBSON: In addition, your Honour, I’ve got a letter from Mr Longworth’s doctor which just outlines his current medication which may be of assistance to authorities?

HIS HONOUR: Would you like that to be sent as well?

GIBSON: I’d like that to go with the warrant, yes, your Honour.

HIS HONOUR: Yes. With the warrant today. What we will do, I will ask the court officer just to go and do a photocopy.

GIBSON: I’ve got copies if you want?

HIS HONOUR: You’ve got copies?

GIBSON: Yes.

HIS HONOUR: Done. Good. I’ll take that. Thank you.

EXHIBIT #S5 LETTER PREPARED BY DOCTOR TENDERED, ADMITTED WITHOUT OBJECTION

A photocopy should be given to your client for him to take into custody and I will give the copy here to my associate who will include it in her fax or email to the Corrective Services which includes, Mr Borenstein and Dr Westmore, so three things.

GIBSON: Thank you, your Honour. Yes.

HIS HONOUR: Mr Gibson, anything else? I was just going to ask whether there’s any factual or legal matters which could be dealt with now.

GIBSON: No, your Honour.

HIS HONOUR: I think the figures are correct.

GIBSON: Yes.

HIS HONOUR: Ms Anderson.

ANDERSON: Just one further--

HIS HONOUR: I am going to ask you in a minute about backup charges.

ANDERSON: Yes, your Honour.

HIS HONOUR: First, are there any factual or legal matters that need to be attended to?

ANDERSON: No, your Honour.

HIS HONOUR: And the figures I think are correct.

ANDERSON: They are, your Honour.

HIS HONOUR: My associate has reminded me there is a backup of assault occasioning actual bodily harm withdrawn and what do you propose?

ANDERSON: I’d ask you to withdraw and dismiss that charge.

65. So you withdraw that charge and I dismiss it.

ANDERSON: Thank you, your Honour.

HIS HONOUR: Thanks, Ms Anderson. Mr Longworth, it might be a matter if you want to stay here for a few moments with your family, is that okay with you gentlemen, just two or three minutes? Mr Longworth has posed absolutely no security risk that I know. That’s a matter for you, not for me, but if you want just a few minutes with your family that’s okay with me. If you want some privacy you might go into the dock and they can be there with you in front of the dock and talk to you but I will leave that management to you and to the Corrective Services.

HIS HONOUR: Is there anything else, Mr Gibson and Ms Anderson?

GIBSON: No, your Honour.

ANDERSON: No, your Honour.

HIS HONOUR: Thank you.

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Decision last updated: 18 May 2018