R v McLean

[2014] NSWDC 104

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v McLean [2014] NSWDC 104
Hearing dates:	01/04/2014
Decision date:	03 April 2014
Jurisdiction:	Criminal
Before:	S Norrish QC
Decision:	Convicted and sentenced to a term of imprisonment by way of non parole period of 1 year, 6 months with a balance of sentence of 1 year, 6 months.
Catchwords:	Criminal - sentence, recklessly inflicting grievous bodily harm, objective seriousness, early plea, 'standard non-parole period'.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Thomson and Houlton [2000] NSWCCA 309 Wilson v R [1992] HCA 31, (1992) 174 CLR 313 Muldrock v R (2011) 244 CLR 120 R v Way [2004] NSWCCA 131 Wong v The Queen (2001) 207 CLR 344
Category:	Sentence
Parties:	The Crown Tony Mack McLean - offender
Representation:	Director of Public Prosecutions - Crown Mr Hopkins - offender
File Number(s):	2013/00089360

SEntENCE

1. HIS HONOUR: Before I move to the sentencing remarks that the law requires me to make in relation to this matter, there are some remarks I wish to make which are particularly directed to the prisoner and the victim and their families and the people that support them in this Court. It is to be remembered of course that sentencing in courts is a complex exercise and it is not primarily or principally directed at extracting revenge or retribution for wrongdoing.

1. Most importantly, I make the point that when sentencing offenders where they cause the death or serious injury to other people either in the control of motor vehicles or in manslaughter matters the sentence ultimately imposed is not to be regarded as the measure of the value of the life lost or the injury done by the prisoner to a particular victim. It is also to be remembered of course that the criminal law recognises a wide range of levels of culpability.

1. The prisoner here is to be sentenced in the context that the prosecution has charged him with an offence that does not require it to prove that he had the intention to cause grievous bodily harm, that is really serious bodily harm as undoubtedly occurred in this case to the victim. Courts do not determine what charges people should face, the range of conduct that warrants the sanction of the criminal law can vary from the extreme levels such as those shown in the conduct of Ivan Milat over a period of time, viciously torturing and then murdering his victims, to cases involving people controlling motor vehicles being momentarily distracted by a mobile phone or a child in the backseat and then losing control of their motor vehicle and causing grievous bodily harm or death.

1. Of course, the Director of Public Prosecutions has the responsibility of exercising the discretion to determine what charge or charges should be brought against and accused person. This is a discretion exercised by the prosecution quite separately from the Courts and of course the Courts are reluctant to interfere with and rarely interfere with the learned Director's discretion. Courts never determine the terms of a particular charge.

1. I am not suggesting for a moment that the charge in this matter was inappropriate. But members of the public, prisoners, victims and those otherwise interested in the case of course should understand that they come here to view only this particular individual case, however the Court itself sees the wide variety of human misconduct on a daily basis and is left to rely upon its experience to assess where particular moral culpability lies in the range of offences of the type with which a particular offender is charged.

1. The High Court of Australia in Wong v The Queen, (2001) 207 CLR 344, dealing with guideline judgments in Commonwealth sentencing matters in 2001, noted that the "core" of the difficulty in the sentencing task is its complexity. This has not been helped of course by legislative amendments and changes over a period of time. Sentencing judges are required to take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender.

1. Very often, the High Court said, there are "competing and contradictory considerations". What might mitigate seriousness of the offence on one hand may aggravate the seriousness of the offence on the other. Yet, from these matters the Judge is left with the responsibility of distilling an answer which reflects human behaviour in time or monetary units of punishment.

1. Mr McLean, my practice is to tell people in advance what sentence is to be imposed. In your case I propose to impose a sentence of three years imprisonment with a nonparole period of eighteen months which will commence from today. I have to give my reasons in relation to that.

1. The prisoner appears today for sentence in relation to the offence of recklessly inflicting grievous bodily harm upon Adam Ford in the early hours of 24 March 2013 at Orange. The offence to which the prisoner has pleaded guilty carries a maximum penalty of ten years imprisonment with a standard nonparole period of four years imprisonment. The prisoner pleaded guilty at the first reasonable opportunity and was committed for sentence to this Court. Thus, in accordance with the guideline judgment of Thomson and Houlton [2000] NSWCCA 309 where the Court of Criminal Appeal laid down a guideline for discounts to be given to reflect the utilitarian benefit of pleas of guilty, the prisoner is entitled to a discount of twentyfive per cent on the otherwise appropriate sentence.

1. The prisoner, as I understand it, is now twentyfour years of age. According to the statement of facts the victim of the assault Mr Ford is now twentynine years of age. As can be divined from the material that has been presented to the Court, I understand the two men were strangers to each other at the time of the grievous bodily harm being suffered by Mr Ford. There was some reference in the facts to the prisoner being in Orange to play in a rugby league trial representing a team from Queanbeyan and I understand Mr Ford was actively involved in rugby league in Orange. Whether they played against each other that day, or whether they had contact that day, I am not informed.

1. The prisoner after his trial match, that is the day before the incident giving rise to the charge, went out with his team mates drinking together, not an uncommon experience for country teams travelling away for games. But often leading to very unfortunate consequences. The victim had been at the Royal Hotel and he left there at about 2.30am on 24 March. He walked out of the doorway that affronts Lords Place and passed a group of people who had been refused entry by the security officers to the Royal Hotel. This group included the prisoner.

1. Before the two men passed each other, and in fact before the victim left the hotel, the facts state that a "brief verbal altercation" had occurred between the prisoner and a security officer. Following upon this the victim left the hotel. He passed the prisoner and a team mate, as the person is described in the facts, and some words were said to the victim by either the prisoner or the team mate.

1. The victim turned around, walked a few steps back towards the prisoner and a further "short exchange of words" took place before the victim turned and walked towards the roadway which I take to be Lords Place, not Summer Street, which is nearby. I am denied the detail of what was said, but the facts state that the prisoner then followed the victim and punched him once to the left side of the head. Whether the victim was facing towards the prisoner or had his back completely to the prisoner the facts do not state. Certainly he had turned away from where the prisoner had been standing. The punch caused the victim to fall. But the real damage was done, as is often the case in such matters when someone is hit with a punch that is surprising and knocks them off balance, with the victim's head hitting the footpath and gutter heavily.

1. One only needs to read the facts of the leading High Court judgment on 'unlawful and dangerous act' manslaughter (Wilson v The Queen) to see very close parallels with this incident, and understand from many cases that come before the courts, that such unfortunate consequences happen too often in such circumstances. Even if it can be said where death is caused or serious grievous bodily harm has been caused, there was not an intention to cause the grievous bodily harm that arose. Distressingly, for the community, victims and the Courts, similar events, some with far more catastrophic consequences, have been chronicled in recent months in the media and elsewhere.

1. Mr Ford lost consciousness, as one would expect. He was tended by a friend and a trainee nurse who contacted emergency services. The facts state that the prisoner stepped back after the blow, placed his hands in his pockets and walked away from the area in an easterly direction towards Summer Street.

1. The prisoner has given evidence that in fact he went across the road, as I understand it to the other side of the Summer Street, and waited with some friends to find out what was happening. Apparently he sent a friend or friends back to the scene where obviously a crowd of people had gathered including police, to see if the victim was all right. Police attended and took information from various people designed to identify the attacker. There were team mates of the prisoner in the vicinity and one of them supplied the name of the prisoner to the police. Whether that was the person who the prisoner had sent back or not I do not know.

1. The victim was conveyed firstly by ambulance to the Orange Hospital, at the Bloomfield Campus, and was later airlifted to Westmead Hospital in a critical condition due to the severity of his head injury and what is described as a "brain bleed". He suffered an extra-dural haematoma, in other words a brain haemorrhage on the outer lining of the brain, and an underlying temporal bone fracture. He underwent a craniotomy and brain bruising was drained. He was at that point neurologically intact.

1. To the prisoner's credit, to a limited degree, whilst he did not provide positive assistance to the victim, he surrendered himself to police at 6.20am on 24 March 2013 accompanied by his football coach. As it transpires, as I understand the facts, he would not have been much help at the scene although he could have remained at the scene, as is self evident. He was electronically interviewed but took legal advice not to answer questions and not surprisingly followed that advice.

1. A victim impact statement has been tendered and been read by the victim and I take that into account in accordance with the terms of the provisions in the Crimes (Sentencing Procedure) Act 1999 herein after referred to as "the Act". There is nothing particularly controversial about what the victim said, even though it was not given on oath as is not required by the law and not subject to the test of crossexamination. I was impressed with the victim's delivery of it. It must have been very difficult for him. Its contents and its delivery were without rancour, but it confirms, as is available from the other evidence, the profound impact upon the victim of the prisoner's conduct.

1. This is demonstrated by two reports from the "MidWestern Brain Injury Rehabilitation Program" under the hand of a rehabilitation physician Dr Lahz. She gives the history of the treatment which shows that preoperatively the victim was able to improve from 4/15 to 14/15 on the Glasgow Coma Scale or the GCS. Postoperatively he was not subject to any complications and was extubated the day after the operation. He was discharged home on 18 April 2013. Of course, that is over three weeks after the relevant events. Quoting from the report "(he) improved sufficiently well to resume working as a selfemployed plasterer approximately three months later, he also resumed driving uneventfully".

1. At the time of the first report prepared in early December 2013, he was not reporting any significant cognitive difficulties and was going about his life relatively normally although he had heightened fatigue, his relationship with his wife was not back to normal, he had avoided drinking, as advised, for six months, but apparently had resumed some heavy drinking, including what was described as "binge drinking". He had been cautioned about his alcohol intake. He was very anxious to resume playing football to "prove" that he could still play the game.

1. I note in his victim impact statement when he talked about the many effects upon his life by the conduct of the prisoner, one particular matter that he referred to was the impact upon him of not playing a game of sport that he loved obviously and from which he was financially rewarded. This had had a big impact upon him and, particularly as I would expect, to his selfesteem.

1. The doctor said in the first report that she would not advise him playing rugby league again because although there was a lack of physical problems, there was still the risk of a second head injury and he accepted that advice. She said at that time that the victim had "recovered very well postbrain injury (but had to) undergo neuro-physiological assessment to particularise the injury". She wanted to know the extent of cognitive deficits, she said that she was sure they would find several impediments although these were likely mild given that he had returned almost to normal preinjury life.

1. In the second report there is a summary of the neuropsychological assessment which shows significant problems with "speed information processing as well as difficulties with sustained and complex attention". The neuropsychologist, Dr Casey, "highlighted the adverse contribution made by the traumatic brain injury (TBI) such as related fatigue and depression". The victim was showing a number of symptoms of irritability and low mood and he was advised to reduced his antidepressant medication Effexor which he had been apparently taking on and off since he was sixteen, initially for the treatment of anxiety. Removal from medication made him less "numb" but more susceptible to feeling emotions more strongly after his TBI. He continued to have fatigue and headaches. He had various concerns that are reflected in the report on 13 February about long term effects but at this stage it is impossible for the experts to make predictions as to other long term deterioration and what connection if any it would have to the TBI.

1. Dr Lahz, said:

"Notwithstanding the previous psychological issues (which were managed well on medication preinjury according to his wife) I have no doubt that the severe TBI he suffered in the incident has served to destabilise him emotionally and behaviourally. These problems also have been exacerbated by the struggles he faces due to the traumatic brain injury inducing cognitive deficits, specifically those affecting speed information processing and complex/sustained attention and as well substantial TBI related fatigue".

1. Thus, it can be seen that putting aside the obvious very serious immediate trauma which was life threatening and the substantial postoperative impact upon the victim over three weeks of hospitalisation and a further three months of recovery without being able to work, that there are substantial permanent effects on the victim. Although it must be said, in the range of such matters, short of what might be called a worst case scenario.

1. Mr Ford, when he came to read his statement, appeared on observation of the Court, fit and strong. However the damage to him that continues may not be physical in the long term, but there may be a long term psychological and emotional injury. I will come back to the assessment of the objective facts in this matter when I deal with other relevant evidence.

1. The prisoner has no prior criminal convictions for violence. He has two findings of guilt in relation to being an unlicensed driver in New South Wales in 2010 as well as some other driving matters in the ACT in September 2011. But they are of little moment. He has been in a partnership with a lady for approximately six years and apparently has been running for some years a successful sheet metal business in either the ACT or Queanbeyan. The ACT Corrective Services have prepared a report which sets out some history of the prisoner which is uncontroversial.

1. He was born in Sydney, moved to the township of Young in south-west New South Wales with his mother and two siblings and then had limited contact with his father. He moved to Canberra in the ACT to complete an apprenticeship as a boilermaker. He also had talents in rugby league and sought to further his career in that regard. He now has two young children. When he completed his apprenticeship as a boilermaker he went to Sydney for a period of time and then returned to set up his business. According to the report he is a dedicated worker in his business and I have a reference from an employee referring to his industry working six days per week.

1. He told the Corrective Services officer that he was intoxicated at the time of the offence and he was unable to recall how much, or what type of, alcohol he had consumed. This is no excuse of course for his conduct. That he was intoxicated is selfevident from the time at which this occurred, one would not expect people coming and going from the Royal Hotel at 2.30am in the morning to be anything but, unless they are teetotallers. That intoxication contributed to his behaviour is, with respect, neither here nor there. It certainly, as I said a moment ago, is not a mitigating factor.

1. There has been considerable publicity in the last twelve months of the dangers within the community that intoxicated people in public create, on many occasions creating danger to other people either intoxicated or not. Some people are in no condition to defend themselves. As is well reported, the community is sick and tired of having to bear the burden of dealing with the consequences of drunken thuggish behaviour even if it is uncharacteristic of the offender.

1. I accept in the context of his criminal and personal history that this act of violence was uncharacteristic of him. But the problem is in this matter, as with similar matters, the extent to which the prisoner when intoxicated is prone to act out violently must remain a continuing concern. Of course there is no evidence he has previously done something such as this. But the point is that the consumption of alcohol has removed his inhibitions on this occasion and caused him to act violently towards his victim.

1. Apparently from the history given to the Corrective Services officer in Canberra, his alcohol consumption before this event was not problematic although occasionally he would participate in binge drinking, as he obviously did on this particular night. He has had no difficulties, or issues, with illicit substances and no mental health issues before the offence, although he did suffer some reactive symptoms to his current circumstances some months after the event. He told the Corrective Services officer that he did not believe that this behaviour is an acceptable form of behaviour.

1. In the evidence he gave in this Court he produced what could be described as a Facebook post, apparently made two days after the event, in which he expressed his regret for what occurred. Although in expressing his regret the wording is somewhat curious in that he did not express any specific regard for the victim. He expressed regrets for "things" he would "take back ... if he had the chance" and said that "from the bottom of my heart I'm sorry to the people I have hurt".

1. He was not questioned about the terms of the 'Facebook' post and I obviously made no criticism of the skilful way the Crown and defence conducted their case. I assume that the was reflecting upon the victim and his family, but then again it must be fairly said the prisoner is not Shakespeare and in fairness to him it may have been simply his manner of expression.

1. He gave evidence of his regret and remorse in this Court and offered his apology to the victim. Whilst that expression from what I could judge, I believe was genuine, whether the victim accepts it or not is not a matter about which this Court can comment. He is under no obligation to do so and ultimately it is not a matter of any significance in the sentencing process. It is commonplace in cases of domestic violence for victims to forgive the perpetrator which courts ultimately must ignore as a general rule, otherwise it would just provide a charter for people to go back and do the same thing again.

1. In relation to this issue of regret and remorse and apology, the Crown made a submission about the delay in offering an apology directly to the victim. I understand the point the Crown made, however, our criminal justice system does not in any formal way permit genuine expressions of apology or remorse or regret to be conveyed by a perpetrator to a victim who is a stranger for a range of reasons, including concern for the safety of the victim should the perpetrator be in contact with that person, not that I am suggesting for a moment this prisoner presents a threat to the victim now. Then again, of course, as happens as a result of motor vehicle accidents, regret can be conveyed in other ways by a modest gift of flowers or a card or some recognition to the victim's difficult road to recovery and the damage done without compromising the integrity of the victim.

1. The criminal justice system could be served by a more formal or organised method of communication on such matters with out compromising a victim's safety, amongst other reasons, to give the Court which sees this material in a short period of time in rather formal circumstances some opportunity to better judge whether expressions of remorse and contrition and the like are truly genuine or merely reactive to circumstances. Of course, contrition is a matter of degree. Contrition and regret expressed immediately after a relevant event with positive assistance to a victim, as often happens in motor vehicle accidents, is one thing. Regret and contrition may be expressed not only immediately but continually over a period of time up until the matter comes to court and verified by a range of sources. Clearly, that type of contrition must be given greater weight than contrition offered, even if genuine, long after the event.

1. The Corrective Services report notes the prisoner acknowledged his actions were wrong and accepted responsibility for the offence although he hinted at the fact that whilst his actions were not acceptable he did not believe his actions were "unprovoked". He has given no evidence, nor has there been any claim on his part for the purposes of sentencing proceedings, that there was any provocation for his action and it would be difficult to make that out given the bare facts. He acknowledged the impact upon the victim and expressed his willingness in his evidence, and to the Community Corrections officer, to pay compensation which no doubt inevitably he will be required to pay.

1. He is assessed at a low risk of reoffending, he has no physical health concerns, he no longer has concern about his own mental health. He is the sole financial provider for the household. It is a very sad and ironic fact that in many ways the circumstances of this prisoner very much mirror those of his victim. The victim's capacity to work, support his wife and meaningfully contribute to his family has been severely impacted by the prisoner's actions for a period of time - I have already pointed out the fact that the victim was incapacitated in terms of work for a period of almost four months. Likewise, the prisoner's business which he has built up and justifiably has great pride in, will come to a halt or will be severely disrupted and his ability to support his family will be denied to him because of the consequences of his actions.

1. The assessment of the ACT Corrective Services officer recognises the prisoner's insight as to the effect of his actions and the inquiries of the service in Canberra reveal that the prisoner leads a conventional family life with a prosocial lifestyle. His life would appear to be committed to his work and his family and his sport, he has continued to play rugby league. He would need some assistance obviously in the future in relation to alcohol counselling and safe drinking strategies, that is selfevident and certainly no doubt he is going to need considerable assistance to get back on his feet financially. He is thought to be capable of benefiting from a period of supervision by the NSW Community Corrections equivalent. Clearly, he needs help in relation to anger management as well.

1. As earlier indicated, the prisoner gave evidence largely concentrating upon his apology to the victim and his expression of regret I have already commented upon. He produced a number of character references. His partner of six years confirmed that he is the sole provider for the family, he is a very hard worker and he had worked very hard to build up his business. He is usually a "happy, funny, loving person". He had expressed to her considerable remorse for what he had done and his act of violence was out of character from her experience.

1. The wife is at her wits end as to what they will do if he is unable to support them. But no doubt the victim's wife was in that same circumstance. He will inevitably miss his daughter's christening later this year which obviously will be a significant event within his family and she asks that her partner be given a second chance. Of course, it might be fairly pointed out that but for medical intervention, the victim may have missed his next birthday completely.

1. I have referred to the reference of the employee who was given employment by the prisoner when he had difficulty finding employment. He had worked for the prisoner for three years and described him as "a hundred per cent" committed to his family and his business. He spoke of the prisoner being affected by his conduct and the consequences of his conduct and that the prisoner was very disappointed in himself for acting so uncharacteristically. Of course, it must be fairly said about regret and remorse that it may be in part, perhaps wholly in some instances, simply a recognition of not the effect upon the victim in reality but the consequences for the perpetrator of his conduct.

1. This reference and that of the wife of the prisoner highlight the damage done by the prisoner's act of mindless stupidity. When a young man travels to a sporting event with a group of mates to have a good time but drinks too much and is quick to anger, whether slighted or not, and then acts in an impetuous mindless manner, it highlights the adage of "act in haste regret at your leisure". When I refer to acting mindlessly, of course there are various categories of such conduct as we see in the courts all the time. There is mindless vicious prolonged acts of violence against others in domestic circumstances or where people are kidnapped and tortured and the like. I am not talking about that type of mindless conduct, I am talking about conduct that is mindless simply because there was this prisoner, with his family, with his business, with everything to live for, and yet, for no good reason, he went and struck a person who is effectively a complete stranger and now has to bear the consequences of it. Obviously when he acted he was not thinking at that moment about what the potential consequences should be.

1. I have other references from a current football coach who reflects upon his football ability and his potential, demonstrated in the under 20 training squads of the Canberra Raiders and the Canterbury Bulldogs. The football coach talks about him devoting himself to his family and his business and his expressions of regret, the acknowledgement of his inappropriateness of his behaviour and the prisoner had shown a number of positive qualities within his football club, showing leadership for other players and making some contribution to the wider community.

1. Another person who coached him earlier in his career and who has a construction business in the ACT, and is a Director of that company, spoke at the prisoner's distress and regret and the affect upon him the way he was marginalised by his former club by his conduct given the disgrace that he brought upon himself and the team. He reflected upon the prisoner's success in his business and said that his act of violence was uncharacteristic.

1. I have had regard to the various submissions that were made by both the learned counsel for the accused and learned counsel for the Crown. Counsel for the prisoner pointed to the prisoner's prior good character, the effect upon him of his conduct. In the context of my consideration of the standard nonparole period which I will turn to shortly, he submitted that the offence was below the middle range of objective seriousness. He noted that the assault was not sustained, that the act was an impulsive act without planning. This clearly is correct. He accepted that the harm was very serious although not the most serious contemplated by the provision. Whilst there were permanent consequences, he submitted there was considerable recovery. I have already summarised the available evidence in relation to that.

1. He submitted that the assault could not be categorised as a "vicious" act or series of acts. On one view of it that may be so, however to the objective bystander minding their own business on the corner of Summer Street and Lords Place at 2.30 in the morning, if they were sober looking on to what was happening, the unprovoked striking of a blow to someone's head without regard to the consequences, in one sense, could be so categorised as vicious.

1. Whilst there was no evidence of provocation it was submitted that this was a case where there had been an exchange between the offender and the victim and it was not in the same category of offences where the victim was randomly chosen without any prior contact with the perpetrator. It was submitted that apart from not being premeditated there was no intention on the part of the prisoner to cause the harm that was occasioned and this much is true from the pleadings in the charge brought by the Crown. Having an intention to cause the consequences that ultimately happened is not an element to be proven by the prosecution.

1. He noted that the prisoner did walk away, although he did not run away. It was submitted that I should take into account the fact that he voluntarily went to the police which I do. He submitted the prisoner had expressed remorse and taken responsibility for his conduct. This I accept, but again it is a matter of degree as I have already explained. Even allowing for his relatively contemporaneous posting in his Facebook page, the weight to be given to this aspect of the matter is not as great as would be given to an immediate expression of contrition or some such matter.

1. It is submitted that the prisoner had a number of very favourable subjective circumstances. This is correct. He is a relatively young man, he has an absence of relevant criminal convictions. He had overcome adversity to complete his apprenticeship and to build up his business. His family life was settled and his family were dependent upon him. He had a prosocial lifestyle as its described in one of the reports and he had an involvement in community activities through his sport and the like. All these matters are correct.

1. It was also submitted that apart from a mitigating factor that his conduct was uncharacteristic and he had no prior criminal history of significance, which I accept, he had excellent prospects of rehabilitation and he was unlikely to reoffend. I do not have a crystal ball for the future regrettably, although I am expected to have such an implement to assist me in making judgment on various matters, but I am prepared to accept those submissions. It was submitted that his absence from his family by his imprisonment creates for his family, who are entirely innocent in this affair, a burden. But it was conceded the hardship to them was not "exceptional" as it has been discussed by many authorities from Courts of superior jurisdiction.

1. The Crown's submissions were that the offence was certainly within the middle of the range of objective seriousness. Whilst it was conceded it was not a sustained attack, there was substantial injury to the victim, potentially fatal consequences alleviated by immediate medical attention with ongoing psychological issues, if not physical issues which I have already summarised.

1. The Crown said properly that he was entitled to the discount that the superior courts have laid down for the plea of guilty. The Crown did not submit that there were any specific aggravating factors under s 21A(2) of the Act, which I explained to people in the public gallery at the time. The Crown submitted that the remorse expressed by the prisoner was not of the highest level, with which I agree, and reflected upon the fact that the prisoner's offending was serious and the mitigating matters were of diminished weight in this matter. The Crown conceded that a finding of special circumstances pursuant to s 44 of the Act could be made but said that there was no alternative other than fulltime imprisonment, in the context of the requirements of s 5 of the Act, which is obviously correct.

1. With regard to s 21A(3) mitigating factors, it follows from what I have summarised from the evidence that mitigating factors that arise specifically under that provision. are that the offence was not part of planned or organised criminal activity, the prisoner did not have any significant record of previous convictions or any relevant record for that matter.

1. I am prepared to accept the prisoner was a person of good character. I accept that he is unlikely to reoffend. I accept that he has good prospects of rehabilitation given what is the overwhelming evidence of his industry and his prosocial lifestyle apart form his conduct on this football trip. I accept that he has shown remorse for the offence by providing evidence that he has accepted responsibility for his actions and acknowledged the injury that he has caused, again I have dealt with that matter. I accept the plea of guilty as a mitigating factor, but for that receives a discreet discount.

1. With regard to the standard nonparole period, I am required to apply the provisions of Part 4 Division 1A of the Act. That Division was amended late last year to reflect matters that arose for consideration in the High Court judgment of Muldrock v The Queen (2011) 244 CLR 120. The new provisions are particularly at s 54A(2) which provides that for the purposes of sentencing an offender to which a standard nonparole period applies, the standard nonparole period represents the nonparole period for an offence in the Table to the Division, taking into account only the objective factors affecting the relative seriousness of the offence in the middle of the range of seriousness. I pause for a moment to point out that in the Court of Criminal decision of Way from 2004, the Chief Justice said in passing that this was not "necessarily a narrow band". The extent to which that observation still applies I am not entirely sure.

1. Section 54B(2) provides that:

"The standard nonparole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender".

1. What the provision means is that whilst the standard nonparole period provides that point of reference, it is not the sole determinant factor, as was held in Muldrock. There may be a number of matters that will effect the fixing of the nonparole period to reduce the appropriate nonparole period including findings of special circumstances and relevant mitigating factors, such as those found under s 21A(3).

1. I just want to deal with one submission that was put to me by learned counsel for the prisoner. He sought to quote [22] in the judgment of Muldrock in relation to the issue of the assessment of the objective circumstances. What he read from was not the holding of the High Court, it was in fact a summary of what had been earlier found in the decision of R v Way, which in part was set aside by the decision then being handed down. In Way the Court had held that the objective seriousness was not to be narrowly confined, it was to take into account the physical acts of the offender and their consequences together with the circumstances personal to the offender that were causally connected to the commission of the offence.

1. In one sense even if that it not now the law, given the terms of the legislation and the decision in Muldrock, there is not in this case present any matter personal to the offender such as a mental illness or a mental disability that is causally connected to the commission of the offence. The matter that is causally connected to the commission of the offence in this case as part of the objective facts, is the intoxication of the prisoner which is not a mitigating factor. Be that as it may, in Muldrock, the Court held (at [27]) that to take into account the full range of factors in determining the appropriate sentence, the Court is to be mindful of two legislative guideposts the maximum sentence and the standard nonparole period. The latter requires that content to be given to its specification as:

1. "The nonparole period for an offence in the middle range of objective seriousness. Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective serious of an offence is to be assessed without reference to matters personal to a particular offender or a class of offenders. It is to be determined solely by reference to the nature of the offender".

1. The legislative changes make that clear.  But in the context of general sentencing principle, once the objective seriousness of an offence is determined, a court must work to assess the effect that matters in mitigation has upon that. It can be fairly said that even though Way was set aside by the High Court in Muldrock, what the Chief Justice said in Way about there being, on the view of that Court, no intention by the legislature by inserting standard nonparole periods to "convert sentencing to a precise mathematical exercise", s still correct. The Chief Justice in Way said that the provision that reflected the continuation of a "wide area of discretion, without resort to some rigid mechanistic or arithmetic approach of the kind which would be totally unsuited to the difficult task of sentencing".

1. We do not have a code of Hammurabi in New South Wales. The code of Hammurabi would require if someone chopped off someone's arm that they or their son would have his arm chopped off. Such a brutal means of inflicting punishment of course may not reflect the extent to which the culpability of the offender was reflected in the facts relevant to the relevant incident.

1. In this particular matter I have concluded by reference to the objective facts that the offence is within the middle range of objective seriousness. I do not believe I am required to comment upon the extent of the band or where within that band the offence arises. In summary, it was an unprovoked single blow which caused initially life threatening injuries that have left long term psychological injury existing up until the present time with intervening substantial hospitalisation, treatment and recovery no doubt causing great pain to the victim and with the resultant loss of income and obvious substantial disruption to the victim's life. It is not to be fairly said, in the worse category of offence, obviously having regard to the matters I have identified and were identified in submissions.

1. That having been said, I determine that there are mitigating factors personal to the prisoner and they have been identified. I also determine that there are special circumstances pursuant to s 44 of the Act. The 'special circumstances' require an adjustment of the relationship of the nonparole period to the balance of sentence. The prisoner is going to need professional assistance to adjust to community living. He is going to need, I believe, some professional guidance in relation to his control of alcohol when he does, if it be true on the rare occasions, binge drink. He is certainly going to need a lot of assistance not just by the Probation and Parole officer but by others to get himself back on his feet financially.

1. I am mindful of the fact that in sending someone to gaol, which is not a step quickly taken nor should it be, the fact of the imprisonment itself whatever its length, will impose that element of punishment on this prisoner that might not otherwise be inflicted on other prisoners without employment, without businesses, without families to support or showing no responsibility for their community. It cannot be said that the prisoner has generally shown no responsibility for his community.

1. Yes, thank you Mr McLean, could you stand up please sir? In relation to the offence for which you have been found guilty by your plea, you are convicted. You are sentenced to a term of imprisonment by way of nonparole period of one year and six months which will date from today.

1. There are no other presentence custody periods are there Madam Crown?

1. HENNESSY: No your Honour.

1. HIS HONOUR: One year, six months from today, today being 3 April. That will mean the nonparole period will expire on 2 October 2015. I direct that you be released to parole at the expiry of your nonparole period. The balance of sentence will be eighteen months imprisonment. The balance of sentence will expire on 2 April 2017. Just take a seat thanks very much. Take a seat thank you.

1. I do not propose to fix any conditions for parole. The Parole Authority will have access to my remarks on sentence and I will leave that to the Parole Authority to make the appropriate decisions on assessment of the situation in eighteen months time.

1. Madam Crown are there any other technical matters from you?

1. HENNESSY: No your Honour.

1. HIS HONOUR: Right thank you. Any other matters from you sir, I know you're in a difficult position because you are the agent.

1. BONCARDO: Thank you your Honour, nothing further.

1. HIS HONOUR: Right thank you. Yes thank you Mr McLean you can go, the officers will take you. Thank you.

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Amendments

15 October 2015 - Paragraph 58 amended to correct case reference of Muldrock v The Queen and errors of grammar.

Decision last updated: 15 October 2015