R v Maw

[2022] NSWDC 683

District Court

New South Wales

Medium Neutral Citation:

R v Maw [2022] NSWDC 683

Hearing dates:

8 April 2022

Date of orders:

8 April 2022

Decision date:

08 April 2022

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

(1) Convicted of the offence of recklessly cause grievous bodily harm in company.

(2) Impose a sentence consisting of a non-parole period of one year and ten months and a balance of term of one year and 6 months.

Catchwords:

CRIME — Violent offences — Recklessly cause grievous bodily harm

SENTENCING — Aggravating factors — In company

Legislation Cited:

Crimes Act 1900 (NSW), s 35(1)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases Cited:

BP v R [2010] NSWCCA 159

Bugmy v R [2013] 249 CLR 571

Bullock v R [2016] NSWCCA 131

DPP (Cth) v De La Rosa [2010] NSWCCA 194

Lloyd v R [2022] NSWCCA 18

Muldrock v R [2011] HCA 39 244 CLR 120

R v Henry (1999) 45 NSWLR 346

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Michael Maw (Offender)

Representation:

Counsel:

Mr Waldersee (Offender)

Solicitors:

Office of the Director of Public Prosecutions (Crown)

Legal Aid (Offender)

File Number(s):

2021/00069734

SENTENCE

Introduction

1. The offender, Michael Maw stands to be sentenced, having pleaded guilty to a single count that on 14 February 2021 at Toongabbie, he assaulted Trevor Sec while in the company of his brothers, Daw Maw and LN, causing him grievous bodily harm, reckless as to causing him actual bodily harm. That is an offence under s 35(1) of the Crimes Act and has a maximum penalty of 14 years imprisonment and there is an applicable standard non‑parole period of five years imprisonment.

The facts

2. The facts are agreed and the Crown tendered a CCTV recording of the incident giving rise to the offence.  I viewed the CCTV last week when I was hearing the sentencing submissions for the co‑offender, Daw Maw.  The following is taken from the agreed facts: 

3. At approximately 2.13pm, the victim walked across the concourse of Toongabbie Train Station, having been out buying some food, and began walking down a ramp leading to Portico Parade in Toongabbie.  At the same time, this offender and his two brothers were walking together up the ramp towards the concourse of the train station.

4. The victim and ‑ what's referred to in the facts as – “the three offenders” had a brief interaction with one another.  The victim moved past the offenders but turned back and faced them.  This offender and the co‑offender, Daw Maw, quickly moved towards the victim, but Daw Maw fell to the ground.  This offender pushed the victim backwards onto the footpath at the bottom of the ramp adjacent to Portico Parade.  The victim's sunglasses and hat fell off and landed on the footpath and he landed on the footpath heavily.  This offender kicked the victim near his head with his right foot.  The victim was lying on the ground and put his hands up in front of his face.  Daw Maw moved closer to the victim.  Both this offender and the co‑offender, Daw Maw stepped on the victim more than once.  This offender kicked at the victim's torso twice.

5. Daw Maw kicked at the victim's hand and the victim let go of something in his hand and it landed on the roadway, that was a small USB Taser device.  The victim stumbled to his feet and tried to run away, but he was followed closely by this offender and quickly stumbled forward into a shopping trolley that was on the footpath within a few metres.  The victim fell to the ground next to a bus stop seat.  As the victim fell, this offender again pushed him and with the co‑offender, Daw Maw, then kicked the victim in the back while he was on the ground.  Both this offender and Daw Maw also punched the victim several times.  The victim tried to get up and crawl away.

6. A female friend of the offenders tried to intervene and pushed this offender and Daw Maw away, and the victim fell back to the ground, hitting his head on the gutter of the roadway as he fell.  This offender and Daw Maw were joined by their younger brother, LN, who jogged over to the victim and stood over him.  The victim was lying on his back, looking upwards with his hands on his face.  Daw Maw kicked the victim to the head and stepped on his torso.  LN also stepped on the victim several times and spat at him.  At this time, other friends of the offenders intervened and the three offenders moved away from the victim.

7. A few moments later, however, LN, followed closely by Daw Maw and this offender returned to where the victim was on the footpath.  Daw Maw pushed one of his male friends away from the victim and kicked the victim to his upper body and head.  This offender and LN also kicked the victim to his body and head.  The offenders' kicks were described as forceful and caused the victim's head to come into contact with the roadway.  Following this assault, the victim lay still, his body and head were on the roadway and his legs were on the footpath.  Daw Maw stepped on the victim's head before being pushed away by several of his friends.

8. Two male friends of the offenders lifted the victim by his arms and moved him from the roadway to a nearby seat.  Daw Maw also lifted the victim by his torso, but dropped him before he was located onto the seat.  The friends lifted the victim onto the bench seat, laid him down on his back. He was either unconscious or semi‑conscious and was assisted by members of the public.  Daw Maw, the co‑offender, had taken the victim's blue baseball cap during the incident.  The offenders and their friends made their way to the train station platform and the three offenders traded some of their clothes before hopping onto an east bound train.

9. According to the facts, the incident took 90 seconds.  The victim was taken by ambulance to Westmead Hospital where he was admitted for three days.  He sustained several injuries:  Minimally displaced rib fractures to his sixth and seventh ribs and his left eighth, ninth and tenth rib;  Fractures to both scaphoids in his hands, for which he had surgery on 19 March 2021 to fix a screw in his right wrist and a screw and bone graft in his left wrist, a small left medial orbital wall fracture and a minimally displaced right orbital floor fracture, being fractures to his eye sockets;  A frontoparietal scalp haematoma.  Aside from the victim's fractured scaphoids, his other injuries were treated conservatively. He did have a consultation with an oral and maxillofacial specialist in relation to his orbital fractures, it was determined that the fixtures to his wrists would remain permanently.  This offender was arrested on 11 March 2021 at his home.

Objective seriousness

10. Turning then to my assessment of the objective seriousness of this offence.  The offence is one which was committed pursuant to a joint criminal enterprise between this offender and the co‑offenders.  While each participant in a joint criminal enterprise is equally responsible for all the acts in the course of carrying out the enterprise by whomsoever they are committed, a particular participant's level of culpability is to be assessed by reference to the conduct of that particular participant.  Two co‑offenders were involved in the attack upon a person walking down a ramp from a railway station and they were, of course, the brothers of this offender.  The attack, according to the agreed facts, lasted 90 seconds.

11. It was essentially an unprovoked attack upon somebody who was simply leaving a train station in the middle of a Sunday afternoon.  It was this offender who first applied violence to the victim, pushing him to the ground and then, kicking him near the head.  This offender, along with the co‑offender, Daw Maw, then stepped on the victim more than once.  This offender then kicked at the victim's torso twice.  The victim, during the attack, tried to run away but was pursued by this offender and Daw Maw, and the victim was essentially pushed to the ground by this offender.  This offender then, together with his brother, cowardly kicked the victim in the back and punched the victim several times.  While the victim remained lying on the road, this offender kicked him in the head and his body.

12. Friends of the offenders intervened, and the offenders proceeded to move away.  Shortly after that, this offender, together with the two co‑offenders, returned to where the victim was on the footpath.  He has kicked the victim to his body and head, along with the co‑offenders.  This offender performed a persistent and significant role in this offence.  On the agreed facts, clearly, a far greater role than LN, and on or about the same level as that of Daw Maw, noting it was this offender who committed the first act of violence against the victim.  The offence involved a very serious attack upon a member of the community simply going about their business on a Sunday afternoon.

13. The injuries suffered by the victim were fortunately not life threatening, but that is more as a result of luck than anything else.  The injuries were, however, significant and involved a number of fractures to the ribs, the hands, and the eye sockets.  To correct the fractures to the scaphoid, surgery was required to fix a screw in the right wrist and a screw and bone graft in the left.  While not at the upper end of grievous bodily harm, the injuries are, in my opinion, still quite significant.  I assess the objective seriousness of this offence, as I did when sentencing Daw Maw, as falling close to the middle of the mid‑range of objective seriousness.

The Offender’s subjective case

14. Turning then to the offender's subjective case, his date of birth is 21 June 1997, so he is currently 24 years of age and was 23 at the time of the offence.  A relatively young adult offender, but probably towards the upper end of the range of persons who can be said to fall into the category of young adult offender for the purposes of sentencing.  The principles associated with sentencing a young adult offender are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrence, denunciation and retribution when sentencing a young adult offender.  See the summary of relevant principles in Bullock v R [2016] NSWCCA 131 and BP v R [2010] NSWCCA 159.

15. This offender has something of a record for violent offences.  He has convictions in the past for intimidating a police officer in the execution of duty, three convictions for common assault and assaulting a police officer in the execution of duty.  As at the time of the offence I am to sentence him for, he was on an Intensive Correction Order for assault police officer in the execution of duty and intimidate a police officer in the execution of duty.  His record disentitles him to any considerable leniency in this sentence. 

16. As I just noted, this offence was committed while the offender was on an Intensive Correction Order for offences of violence.  The fact this offence was committed while on conditional liberty is an aggravating factor on sentence.  I have before me a psychological report of Mr Graeme Randall dated 28 March 2022, and a sentence assessment report dated 24 March 2022.  I also have a letter of apology to the victim provided by the offender today.  The offender did not give evidence on sentence, and I have had regard to that fact in assessing what weight to give to statements made by the offender about the circumstances of the offence and to his remorse.

17. Turning then to the offender's family background.  He reported that he is the eldest of seven children born to his biological mother.  He reported his biological father was Sudanese and his mother was Egyptian.  The young family immigrated to Australia from Egypt when he was approximately five years of age.  The offender explained to the psychologist that he has three younger brothers born to the same biological father.  He reported his other younger siblings coming from later relationships of his mother.  He reported to the psychologist that the siblings have strong relationships and are "tightknit".  He reported that he had no interaction with his mother's second and third partners and did not consider anyone in his life as a male role model or positive father figure.

18. The offender reported to the psychologist that there was significant abuse within the family home.  He reported that his father was physically abusive towards him and his mother.  As a result of this abuse, the offender, his mother and siblings were removed from the home and placed in various refuges.  The offender and his family moved through a number of refuges, but he states his mother would often return the family to his father's home.  During this time, the offender stated his mother started abusing heroin and became unavailable, emotionally and physically.  The offender reported that he felt a sense of reliance on his father at this time out of necessity for needs such as food and clothing.  I note the offender reported the abuse continued throughout this period.

19. The report of Mr Randall refers to particular conduct of the offender's father towards him when he was young which I have full regard to in formulating the sentence, but will not read onto the record. 

20. When the offender was approximately nine years of age, he and his siblings were placed into foster care.  He has reported to the psychologist that he and his siblings were separated into different foster homes throughout Queensland, New South Wales and Victoria.  He reported a level of distress at being separated from his siblings, and found being placed into foster care traumatic.  He explained to Mr Randall that he often became violent towards his foster carers, and as a result, was regularly moved to different foster homes by himself.

21. The offender reported that his three youngest half‑siblings are still in foster care, which he feels a level of responsibility and guilt for.  He reported having reconnected with his siblings and feels as though they have bonded over the shared trauma of their experience in foster care.  As mentioned earlier, he described their relationships as close. 

22. In terms of his family background, I note it is generally consistent with that given by his brother to the psychologist in the sentencing proceedings concerning the brother.  At the time of the offence, he told the author of the Sentencing Assessment Report that he had a relationship break down and was essentially transient.  He has three children from two prior relationships with whom he maintains regular phone contact and intends to have contact with them when released.

23. In terms of his education and employment history, the offender reported to the psychologist that he attended 16 different schools before leaving school at the end of year 9.  He reported having repeated year 2 and that he averaged two terms at each school.  He noted the changing in schools was due to being transferred to new foster homes.  His schooling came to an end when he was expelled at 15 years of age after a violent attack on another student.  The offender reported to the psychologist that he had a long history of behavioural difficulties, violence and truancy at each school, which resulted in multiple detentions, suspensions and expulsions, noting that he was expelled from six schools.  He reported at times having to be restrained by police and needing sedation.

24. The offender reported that he had difficulty understanding the material in each school he attended, which he believed contributed to his anger and dislike of school.  He reported that his reading, writing and mathematical ability in year 7 was equivalent to the average year 3 student.  Although I note there is no evidence before me that confirms the offender's intellectual or schooling ability. 

25. The offender reported having gained some employment after leaving school, firstly as an apprentice carpenter.  He reported this employment was terminated after he became violent following contact from his father.  The offender gained a second apprenticeship at his foster father's workplace as a sprinkler fitter.  To his credit, he completed this apprenticeship in 2020 and he continued working as a sprinkler fitter until a few months before the offence of failing a drug test.  He told the author of the Sentencing Assessment Report that his employment was terminated for aggressive behaviour.  He stated to Community Corrections that he intends to seek employment when released.

26. The offender reported an extensive history of substance misuse.  He described to the psychologist first using tobacco from the age of 11.  Shortly thereafter, he began using alcohol and cannabis from age 12.  He reported regularly consuming MDMA, methamphetamine, cocaine, LSD and inhalants from approximately 15 years of age.  The offender reported his drug and alcohol use continued until his arrest for the current offence.  He reported to the psychologist that he chose to take drugs to alleviate his feelings of loneliness and to calm his emotions when he became agitated.  He reported some attempts to maintain sobriety when employed, but said he would consistently return to his pattern of drug taking.

27. The offender reported his longest period of sobriety as being his current time in gaol.  I note the offender reported having never engaged in any structured alcohol or other drug rehabilitation.  He told the psychologist and the author of the Sentencing Assessment Report that at the time of the offence, he had been using alcohol and prohibited drugs and had not slept for six days.  The fact that the offence was committed under the influence of drugs and alcohol is generally not a mitigating factor, however, I consider his drug use is linked to his childhood trauma and have had regard to observations in R v Henry (1999) 45 NSWLR 346 as to the taking into account of his drug use when sentencing in such situations.

28. Turning to his psychological and psychiatric history.  He reported to the psychologist as having been diagnosed in the past with attention deficit hyperactivity disorder when he was around nine or ten years of age.  For this, he was prescribed Ritalin which he said he took for approximately five years.  He reported a range of psychological outcomes including periodic suicidal thoughts, panic attacks and low mood.  The offender reported that he continued to struggle with his childhood trauma and abuse, which manifested in regular nightmares and flashbacks.  He reported a suicide attempt in 2017 when he was admitted to hospital for four days.

29. After taking a history, the psychologist opined that it "appears he experiences hypermania" and his "symptoms are consistent with complex post‑traumatic stress disorder with such severe impairment that his emotional and behavioural regulation is severely compromised".  The offender reported having been engaged with various psychologists before he was 14 years of age.  When he was 15, he was assigned a psychologist by Family Services who he's been seeing for a month at a time until shortly before his arrest.  He reported that this most recent psychologist has confirmed his diagnosis of bipolar disorder, anxiety, depression and post‑traumatic stress disorder.  I note somewhat disappointingly, the author of the report before me has not reviewed any material from that psychologist.  The offender reported he is currently prescribed Zoloft and Cymbalta for depression, but says he has chosen not to take the medication.  He is recorded in the Sentencing Assessment Report as being willing to reengage with a counsellor upon his release.

30. The psychologist administered a personality assessment inventory to the offender.  It produced a result which showed the offender had an extremely negative view of himself and life in general.  It also indicated that the offender had experienced considerable trauma which continues to impact him, likely in the form of anxiety, depression and a belief that others are going to cause him harm.  The profile also indicated a high level of problems with drugs and alcohol, a high level of physical aggression, high level of stimulus seeking behaviour, and a high level of self‑harming behaviour.  The psychologist considered that the attributes of the offender's profile can be viewed as a response to significant trauma.

14. A Sentencing Assessment Report records that in the past, his response to supervision by Community Corrections has been less than satisfactory, and that while he has completed two Community Correction orders, he has breached numerous orders by way of re‑offending and a failure to comply.  He has incurred a number of discipline infringements while in gaol. 

15. According to the psychologist, the offender reported some insight into the impact of the offence on the victim.  He acknowledged the impact on the victim and the psychologist reported he had expressed remorse, as he regularly thinks about how the victim feels.  The Sentencing Assessment Report records the offender as displaying limited insight into the impact his actions had on the victim and bystanders.  According to that report, only after prompting was he able to express some empathy towards the victim.

16. A letter of apology from the offender was tendered, but as I noted earlier, he did not give evidence, so the content of that letter could not be tested.  I note in the Sentencing Assessment Report, the offender is recorded as saying that he had reacted to racial slurs from the victim and fears for his brother.  There is no evidence of that before me, and given the offender claimed not to have slept for six days at the time of the offence, his recollection of the events would be severely impaired.  In the Sentencing Assessment Report, the offender was assessed as having a high risk of reoffending.

17. In accordance with the principles discussed in Bugmy v R [2013] 249 CLR 571 in relation to the relevance of social disadvantage to sentencing, like with the offender's brother, I am satisfied that there is some reduction in the offender's moral culpability for the offence as a consequence of his very disadvantaged and trauma-filled early life. In particular, being exposed to very significant violence at a young age. I consider that his early life of social disadvantage was profound. I note, as I say, I made similar findings in relation to his brother when I sentenced him earlier today. While, as I noted earlier, when I did sentence the offender's brother, in Lloyd v R [2022] NSWCCA 18, it has been said that the better view is that there is no need to demonstrate a causal connection between social disadvantage and the offence. Here, the content of Mr Randall's report shows such a connection, in my opinion.

18. The trauma of the offender's early life has left its mark on him, resulting in him turning to prohibited drugs and alcohol which has reduced his ability to exercise judgment and regulate his own behaviour.  I have also considered that the well‑known principles concerning the relevance of mental health to sentencing, discussed in DPP (Cth) v De La Rosa [2010] NSWCCA 194, reinforced in Muldrock v R [2011] HCA 39 244 CLR 120, are engaged to a more limited extent here, having regard to the psychologist's report. While I know his account to the psychologist and the author of the Sentencing Assessment Report suggests that he committed the offence while substantially affected by drugs and alcohol, which is not a mitigating factor, there is clearly a close link to his mental health and his drug use.

19. There can be no doubt that his mental health difficulties are essentially intertwined with his social disadvantage over a number of years and I've been careful to not engage in double counting in that regard.  I consider that there is some slight reduction in the need to give weight to general deterrence here because of his mental health conditions.  The offender pleaded guilty in the Local Court, and I will allow him a 25% discount of his sentence in accordance with the Crimes (Sentencing Procedure) Act for the utilitarian value of his plea.  There is some evidence of remorse here, there is the early plea of guilty, the statements recorded in the Sentencing Assessment Report about his expressions of remorse, which suggest he has limited insight into the impact of the offence upon the victim.  I note the psychologist suggests in his report that there's been a more fulsome expression of remorse to him, and I earlier referred to his letter of apology.  I think there is some evidence of genuine remorse, although it is tempered by a lack of insight into the nature of the offending.

20. I consider he has guarded prospects of rehabilitation despite his relative youth.  He committed this offence on conditional liberty and he has a record of violence in the past.  He has a significant problem with prohibited drugs and alcohol, and has not undergone a rehabilitative treatment in regard to it.  He has very little family support, and his response to supervision by Community Corrections reported in the Sentencing Assessment Report is less than satisfactory.  He is considered by Community Corrections to have a high risk of reoffending.  The offender is relatively young and I am sentencing him during the COVID‑19 pandemic, when conditions in custody are more arduous than they were before the pandemic.  It is well‑known that inmates are spending much longer periods of time in the cells, have no in‑person visits with family and friends, and fewer rehabilitative programs are available, all due to the pandemic.

21. It is also clear that this offender will need professional assistance when next in the community to break the cycle of drug and alcohol use and offending.  For all those reasons, I will make a finding of special circumstances when fixing the non‑parole period.  I record that I have had regard to the harsher conditions of custody which are well‑known in determining the term of imprisonment, as well in making my findings of special circumstances. 

22. The offender has been in custody since 11 March 2021, during the period 11 March 2021 to 10 July 2021, he was serving a sentence of four months imposed by the State Parole Authority, it having revoked his Intensive Correction Order.  In the circumstances, having regard to principles of totality, I propose to commence the sentence I impose from 11 May 2021.

23. The offender's involvement in the offence is clearly significantly greater than that of the juvenile offender, LN, who was dealt with in the Children's Court.  I've noted the sentence imposed there on that offender, but it cannot be said there is a real issue of parity between this offender and LN.  This offender's role, it seems to me, is about the same as his brother, Daw Maw, although noting this offender was the first offender to act violently towards the victim.  However, Daw Maw's criminal history was less and he had no history of violent offences.  He was considerably younger at the time of the offence, and I made a finding that he had good prospects of rehabilitation.  Otherwise, their subjective cases are similar.  I consider that the slight difference in role and in subjective cases justifies a relatively modest difference in the sentence I impose on this offender.

Imposition of sentence

41. I've had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act.  As I said when I sentenced the offender's brother earlier today, offences of significant violence by groups of young men on members of our community simply going about their business occur far too frequently in our society.  The community looks to the courts to impose significant sentences upon those who commit such offences, not only to deter the offender concerned, but also, to deter others from engaging in such violent conduct.

42. Here, for the reasons I have given, there is some reduction in the need to reflect the concept of general deterrence in this sentence, given the offender's youth, his early life of social disadvantage and his mental health conditions. 

43. Sentencing always involves an instinctive synthesis of a number of often competing factors.  Here, it involves recognising the commission of a serious offence of violence and the harm done to the victim and the factors which clearly mitigate the sentence that should be imposed.  The maximum penalty and standard non‑parole period have been taken into account as legislative guideposts, it will shortly be seen that I've departed from the standard non‑parole period and have done so due to my determination as to the appropriate term of sentence and my finding of special circumstances.

44. The offender is convicted of the offence of recklessly causing grievous bodily harm in company.  I impose a sentence consisting of a non‑parole period of one year and ten months and a balance of term of one year and six months.  That is a total sentence of three years and four months imprisonment.  It commences on 11 May 2021 and expires on 10 September 2024.  The non‑parole period expires on 10 March 2023.  The earliest date Mr Maw is eligible to be released to parole is the date of the expiry of the non‑parole period, which is 10 March 2023.  Whether he is in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of his behaviour in prison in determining whether to release him on that date or on another date.

45. So it is a total sentence of three years and four months.  It commences on 11 May 2021 and expires on 10 May 2024.  The non‑parole period is one year and ten months and it expires on 10 March 2023.

Orders

1. Convicted of the offence of recklessly cause grievous bodily harm in company.

2. Impose a sentence consisting of a non-parole period of one year and ten months and a balance of term of one year and 6 months.

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Decision last updated: 14 February 2023