R v Jay Phillip Parslow

[2008] NSWDC 383

CITATION:	R v Jay Phillip PARSLOW [2008] NSWDC 383
JUDGMENT DATE:	18 June 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Non-parole period of 1 year 10 months and balance of the term of 1 year and 6 months.
CATCHWORDS:	CRIMINAL LAW - sentence - maliciously inflict grievous bodily harm - dispute of facts - onus lies in this case on offender to satisfy that his version of events should be accepted - victim impact statement - offence committed while on conditional liberty - criminal record including similar offences - offender suffering from brain injury from earlier accident leading to significant impairment in judgment - plea of guilty
LEGISLATION CITED:	Crimes Act 1900 s 35(1)(b) Crimes (Sentencing Procedure) Act 1999 s 21A, s 44
PARTIES:	Regina Jay Phillip Parslow
FILE NUMBER(S):	07/13954
COUNSEL:	Mr Baffsky for Mr Parslow
SOLICITORS:	Ms Graham for the Director of Public Prosecutions

JUDGMENT

1. I am sentencing Jay Phillip Parslow who has pleaded guilty to maliciously inflicting grievous bodily harm on John McMaster. The offence of maliciously inflicting grievous bodily harm in the form that Mr Parslow has been charged with has now been repealed. It was under s 35(1)(b) of the Crimes Act 1900. It was the law which applied at the time the offence was committed and therefore the law according to which I sentence him. The offence carries a maximum of seven years imprisonment.

2. There are two issues which are more prominent than others which I need to deal with. One is to resolve a dispute of fact as to what occurred in the course of the events. The second is to assess the significance of an injury which Mr Parslow sustained in a car accident some years before this crime.

3. First I should give a brief account of what happened. Mr Parslow was riding a motor bike. He had his five year old son with him as a passenger. It was a Mini motor bike. He was driving along Greenbank Drive in Werrington. This was on Sunday 17 December 2006 at 4pm in the afternoon. Mr McMaster, the victim of this offence, was driving his car along the same road. Mr McMaster said he slowed down to make a U-turn so that he could go back to check a house where he thought his friend might be. Mr McMaster’s account is that he heard a noise and found that Mr Parslow had collided with the back of his car. Mr Parslow’s account is that there had been some exchange between Mr Parslow and Mr McMaster for some moments before this incident. Mr Parslow said that Mr McMaster offered him an aggressive expression and clearly displayed an attitude of dislike towards Mr Parslow and his son. Mr Parslow said that what happened is that Mr McMaster overtook Mr Parslow and then slammed on his brakes causing Mr Parslow’s bike containing his son to collide with the back of the car. I will return to those varying accounts shortly.

4. There was a collision between the bike and the car in the sense that the bike went over and slid under the car. The result of that was that Mr Parslow’s son Jonah fractured his leg. His fractured leg was obvious. What happened then was that Mr Parslow asked Mr McMaster to drive his son to a house nearby where Mr Parslow had some acquaintances. This occurred. When they got to the house a few minutes later Mr Parslow’s son Jonah was transferred to another car. That was to enable him to be driven to hospital but before they drove off to hospital Mr McMaster approached Mr Parslow to see if Jonah was all right. Mr Parslow grabbed Mr McMaster and punched him on the upper left part of his cheek. He punched him again on his lower right jaw. The second punch knocked Mr McMaster to the ground. Mr Parslow verbally abused Mr McMaster and blamed him for intentionally slowing down.

5. The boy was then taken to the hospital. Mr McMaster was taken to another hospital. It was found that Mr McMaster had sustained a fractured cheek and a fractured eye socket. In addition he had a number of teeth removed. Mr Parslow’s son had indeed sustained a serious break to his leg.

6. Mr Parslow was arrested on 9 January 2007 and has been in custody bail refused since then. I have heard evidence from Mr McMaster and from Mr Parslow. In addition I have read the exhibits which have been tendered in these proceedings.

7. I turn now to the first issue which I mentioned at the commencement of these remarks, namely the resolution of the differences in accounts between Mr Parslow and Mr McMaster. A preliminary question is where the onus lies in satisfying me about which account should be accepted. I am of the opinion that the onus lies on Mr Parslow. He has been charged with the offence and the basic facts are admitted by Mr Parslow to the effect that he assaulted Mr McMaster resulting in the injuries which were caused. The prosecution does not seek or does not agitate any point of view which would aggravate those circumstances.

8. On the other hand Mr Parslow through his counsel Mr Baffsky invites me to view the sequence of events in a way which would mitigate their severity. Mr Baffsky invites me to conclude that the offence occurred in the way suggested by Mr Parslow. That in turn would provide an explanation for the offence and some mitigation in the sense that the behaviour of Mr Parslow was provoked by Mr McMaster deliberately slamming on the brakes. Alternatively Mr Bavski invites me in the event that I am not satisfied that his client’s account should be accepted to conclude that his client believed that the accident was the result of Mr McMaster’s behaviour even if that was not the case.

9. I am not satisfied on the balance of probabilities, which is a standard by which I need to be satisfied in order to establish a mitigating feature, that the events occurred in accordance with the way that Mr Parslow said. I regard his account is inherently unlikely. His explanation was that Mr McMaster, until then a complete stranger, took a dislike to the fact that he and his son were riding on a motor bike. Such was the dislike that Mr McMaster took it upon himself to behave in a way that would obviously result in a serious accident between a motor car and a motor bike.

10. I would have been assisted in resolving this dispute had the detail of the allegations made by Mr Parslow about the behaviour of Mr McMaster been put to Mr McMaster. I say the detail because what Mr Parslow claimed was that Mr McMaster was behaving like a vigilante and glaring intently at him and his son. He even suggested that Mr McMaster may have been drinking. He said that Mr Master was behaving like a lout and had in a violent manoeuvre simultaneously swerved and slammed on his brakes. As I said, I regard the account given by Mr Parslow as inherently unlikely. Had this account been put in detail to Mr McMaster I may have been assisted in resolving it but because it was not put in detail I am reluctant to conclude against Mr McMaster that events occurred in the way which he flatly denied. Nor do I accept that Mr Parslow believed that events occurred as he asserted. I do not see any rational basis for Mr Parslow entertaining such a belief. I do see a rational basis for him asserting that the events occurred as he said they did. That rational explanation is that he had reconstructed the events. I think that is more likely. He had, after all, inflicted significant violence upon a complete stranger and in my opinion the more likely explanation is that Mr Parslow needed to reconstruct an account which would in some way explain his behaviour.

11. Even if I were to accept that the events occurred as Mr Parslow said or were the result of his belief, I would accept the submission of Ms Graham who appeared for the prosecution to the effect that the resulting reduction in the severity of the offence would be not great, that is because of the time delay between the events and the assault.

12. I make the following findings about the objective seriousness of this offence. The injury was a bad injury. The consequences were serious for Mr McMaster. I have read and taken into account exhibit B, his victim impact statement which lists a large number of serious consequences which this assault has had on Mr McMaster’s life. I should say about the injuries that they are not the worst examples of grievous bodily harm. This offence is not in the worst category of offences. On the other hand I find in accordance with s 21A of the Crimes (Sentencing Procedure) Act1999 that the injury and damage caused by the offence to Mr McMaster was substantial.

13. I will return in a moment to the objective seriousness of this offence. In the meantime I mention two other aggravating features: one is that this offence was committed by Mr Parslow whilst he was on conditional liberty. This offence occurred on 17 December 2006. On 31 January 2006 Mr Parslow had been convicted of assaulting a police officer in the execution of the officer’s duty. He had been sentenced to fifteen months imprisonment and that sentence was suspended. Accordingly at the time of committing this offence he was enjoying the liberty which had been granted to him by the previous court to enable him to rehabilitate himself. The abuse of that conditional liberty is a serious aggravating feature. A second aggravating feature is his own criminal record. It involves a number of offences of common assault as well as offences of assaulting police in the execution of their duty and one assault of occasioning actual bodily harm. I regard that record as aggravating in this sense: it indicates the need for Mr Parslow to become more aware of the importance of containing his own behaviour. It is important that a sentence imposed upon him reflect the fact that further violent behaviour will not be tolerated.

14. I return now to the assessment of the objective seriousness of this offence. A significant factor in this case is a diagnosis by a Dr Ronald Rowe, a consultant neuropsychologist and clinical psychologist. In a report dated 16 June 2008 which became exhibit 3 Dr Rowe referred to a car accident which Mr Parslow had had in 2003. Dr Rowe was trying to assess whether there was any brain injury which might have been sustained in that accident. He administered various tests on Mr Parslow. He diagnosed Mr Parslow as being afflicted with a chronic pain disorder with depression and most significantly with a traumatic brain injury which led to a post concussive disorder. In addition he had a personality related disorder as a result of his exposure to childhood domestic violence. Dr Rowe’s opinion was that these conditions led to a significant impairment in Mr Parslow’s judgment and his ability to inhibit an impulsive response to a novel and unexpected situation which had developed at the time of the accident. He thought that had Mr Parslow’s condition been adequately monitored and treated earlier then he most likely would not have reacted in the way that he did. Dr Rowe prescribed a treatment program for Mr Parslow and offered the opinion that if he complied, then his risk of re-offending would be negligible. That report is supported by an earlier report of a psychologist Mr Gorrell dated 10 May 2008 who had concluded that it was likely that Mr Parslow was suffering frontal lobe damage.

15. I accept those reports, in particular Dr Rowe’s report. That has a significant impact on the finding which I make so far as the objective seriousness of this offence is concerned. It needs to be taken into account that Mr Parslow’s behaviour was causatively related to the brain injury which he had sustained. This is not to say that it is justified or excusable but it reduces an otherwise very serious assessment of the objective seriousness of the offence.

16. So far as Mr Parslow’s subjective circumstances are concerned I have read the pre-sentence report, exhibit C, which records his background confirming that he had had a childhood which had featured physical and psychological abuse. Mr Parslow has his own son with whom he is very close. He has previously been employed in real estate management for some five years and has a positive reference from a person who worked with him in that occupation. The pre-sentence report noted a reluctance from Mr Parslow to accept responsibility for his offending behaviour. In his evidence before me he did acknowledge his own role in the sense that he ought not to have been where he was when he was. I should record at this stage that when the accident occurred Mr Parslow was riding an unregistered and uninsured motor bike. The pre-sentence report noted that he had been unemployed since 2003. That I note is the date of his car accident. Anger management was seen to be by the probation officer a significant criminogenic factor. The report assessed him as suitable for a medium level of intervention but with a focus on anger management and neuropsychological issues.

17. I do not find that it is unlikely that Mr Parslow will re-offend or that he has good prospects of rehabilitation. I hasten to add that I do not make those findings because I think it is likely that he will re-offend or because I think his prospects of rehabilitation are poor, I am guarded in my assessment of both those factors. It will depend upon whether Mr Parslow co-operates with the long term treatment program suggested by Dr Rowe. I cannot make, in light of that condition, a positive assessment that he is unlikely to re-offend or has prospects of rehabilitation which are good.

18. He has however pleaded guilty. Normally a plea of guilty would, at the earliest opportunity, attract a discount of twenty five percent. In this case however I propose to reduce that discount to fifteen percent. That is because I accept Ms Graham’s submission that the discount is reduced because the utilitarian value of his plea of guilty was substantially eroded by the fact that he called and had cross-examined Mr McMaster. In addition there were two other witnesses who were called who in the end were not cross-examined. He is still entitled to a significant discount of fifteen discount because of the value of his plea to the criminal justice system but in my opinion he is not entitled to the maximum of twenty five percent.

19. The maximum sentence for this offence is seven years. A sentence of seven years of course would be reserved for a most serious example of this offence, in other words a worst case. I regard this offence as very serious, it is very serious because of the nature of the injury and because of the impact which it has had on Mr McMaster. In addition it was committed on conditional liberty. I would regard an appropriate sentence for this offence as five years. However because of the impact which the diagnosed brain injury condition has had on Mr Parslow’s behaviour and because that means that the element of general deterrence is reduced somewhat I regard an appropriate overall sentence as four years. I reduce that four year sentence by fifteen percent because of his plea of guilty. That is a reduction of some eight months from the forty eight months which is the four years. Hence I regard an overall sentence which is appropriate in this case as forty months or three years and four months.

20. I accept Mr Baffsky’s submission that there are special circumstances in this case which warrant an adjustment in the normal relationship between a non-parole period and a parole period. Normally a non-parole period is fixed at three quarters of the overall sentence. Mr Bavski has argued in accordance with s 44 of the Crimes (Sentencing Procedure) Act that there are special circumstances which would justify my lengthening the parole period and at the same time reducing the non-parole period. He says that those special circumstances are the diagnosis of the brain injury and the treatment plan which Dr Rowe recommended. Ms Graham did not dispute the fact that special circumstances exist warranting a departure from the normal ratio.

21. I do not propose to reduce the overall sentence by half but I propose to reduce it by more than two thirds. The non-parole period which I propose to impose is twenty two months, that is one year and ten months. That means that the parole period will be eighteen months, that is one year and six months. I regard a period of eighteen months as important in order to assist Mr Parslow in rehabilitating himself in accordance with the plan proposed by Dr Rowe.

22. Now Mr Parslow would you stand up please. Mr Parslow in sentencing you I set a non-parole period for your sentence of one year and ten months that is to date from when you went into custody on 9 January 2007 and will expire on 8 November 2008. The balance of the term will be one year and six months commencing on 9 November 2008 and expiring on 8 May 2010. The earliest date upon which it appears that you will be eligible for release is therefore 8 November 2008. I recommend that the Parole Authority when giving consideration to your parole, take into account the report of Dr Rowe dated 16 June 2008 and any other reports concerning the impact which the car accident had on you and in particular I recommend that the Parole Authority give serious consideration to fixing as conditions of parole the elements of the treatment regime set out by Dr Rowe under item 12 of his report dated 16 June 2008. Have a seat Mr Parslow.

In a moment I will discharge my statutory report of making sure that Mr Parslow understands the sentence but first are there any other orders or directions which I need to make?

GRAHAM: Your Honour I’d ask that you impose the condition that commonly annexed to parole he place himself under the supervision of the Probation and Parole Service and they--

HIS HONOUR: I can’t impose that because it’s not for me, I’m not fixing parole I can only recommend because it’s over three years.

GRAHAM: It’s over three years, I beg your pardon.

HIS HONOUR: I think that’s for the Parole Authority really.

GRAHAM: Sorry yes, it’s over three years.

HIS HONOUR: That’s why they’re in terms of recommendations. No other orders I need to make?

23. Mr Parslow your overall sentence is three years and four months, that’s forty months and it starts from 9 January 07 which is when you were arrested. You’ve been in custody since then. I fixed a non-parole period of twenty two months so that expires on 8 November 2008 so that’s just under five months time. At that stage you are eligible for parole. I can’t order you to be released on parole because your sentence is over three years. Whether you’re released on parole depends upon the Parole Authority. After you are released on parole you will be on parole until 8 May 2010 and I have recommended that in fixing parole the Parole Authority take into account Dr Rowe’s report and give serious consideration to making conditions of parole the treatment regime which

the doctor recommended for you because this could be the way out of the pattern of criminal behaviour which you’ve had for the last few years, because Dr Rowe may have found an explanation for what happens and his treatment may assist,

HIS HONOUR: do you understand?

OFFENDER: I do.

24. I recommend that the Parole Authority facilitate Mr Parslow’s continuing treatment by Dr Rowe if both Dr Rowe and Mr Parslow agree in a way that Mr Parslow can afford. That is a recommendation only of course, it may not be possible.

GRAHAM: Your Honour sometimes judges require that a photocopy of the psych report be attached to his gaol file.

HIS HONOUR: That’s right, my associate normally recommends that.

25. I direct that the reports of Phil Gorrell dated 10 May 2008 and Donald Rowe dated 16 June 2008 that photocopies of those two reports be attached to Mr Parslow’s warrant and travel with him.

Thank you for your assistance Ms Graham I appreciate it, and thank you for appearing today.

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