R v Michael William Grant; R v Kodney Douglas McNamara

[2007] NSWDC 212

CITATION:	R v Michael William Grant; R v Kodney Douglas McNamara [2007] NSWDC 212
HEARING DATE(S):	1 and 3 May 2007
JUDGMENT DATE:	3 May 2007
EX TEMPORE JUDGMENT DATE:	24 May 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	MIchael Grant: AOABH - fined $1000; Mal Damage - fined $1,000; Aggravated Break and Enter and commit AOABH - sentenced 20 months imprisonment, suspended. (para 67).; Kodey McNamara: AOABH - fined $1,000; Mal Damage - fined $1,000; Aggravated Break and Enter and commit AOABH - sentenced 20 months imprisonment, suspended. (para 68)
CATCHWORDS:	Criminal Law - sentencing - Aggrevated break and enter and commit AOABH - Malicious damage - assaqult - illegal wanton driving by victim - vigilante response by offenders - mid-range of seriousness assessment - alcohol issues - strong rehabilitation.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1989
CASES CITED:	Gladue v The Queen [1999] 1 SCR 688 at [80] R v Cuthbert (1967) 2NSWR329 R v Rushby (1977) NSWLR 597 R v Hayes (1984) 1 NSWLR 740
PARTIES:	Regina Michael William Grant Kodney Douglas McNamara
FILE NUMBER(S):	07/31/0089; 07/31/0091
SOLICITORS:	Mr Moylan for both offenders Mr Frazer for Crown

SENTENCE

1 HIS HONOUR: The B-grade cricket grand final had been held on Saturday 10 February 2007. Several of the players and friends celebrated into the early hours of the Sunday morning at the Post Office Hotel, Moree. Two of those present at the Post Office Hotel at 2am were Michael William Grant and Kodey Douglas McNamara.

2 Michael Grant born in August 1977 will be thirty years old this year. Kodey McNamara turns twenty-one in just a little over two weeks.

3 Each had been drinking continuously for something approaching twelve hours. Each was ill equipped to handle any difficult, complex or highly charged social incident. In the blink of an eye an incident occurred that was difficult, complex and highly charged. Both these men reacted inappropriately, violently and illegally. Their reaction was vigilantism of the worst kind.

4 As a result of their conduct over, according to the charge papers, a ten minute period each has been charged with:(1) aggravated break, enter and commit serious indictable offence, namely the assault of Jayden Byron occasioning to him actual bodily harm in circumstances of aggravation, namely being in the company of the other and a third young man. (2) malicious damage although the damage and property owners differ in each case. Michael Grant is charged with maliciously damaging a LandCruiser motor vehicle the property of Glenn Withers I have assumed the father carries the same name as the son. Kodey McNamara is charged with malicious damage to the front door of unit 6, unit 7 and unit 15, the property of the Sundowner Motel.(3) each has been charged with assaulting Glenn Withers whilst in the company of the other and a third young man.

4 Today each is to be held accountable for his criminal conduct. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for these offences before this court committed by these offenders harming these victims in this community, see Gladue v The Queen [1999] 1 SCR 688 [80].

5 My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to each offender, the subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to each of the offenders.

6 My fact finding task has been circumscribed in this case in that the parties have tendered an agreed set of facts to which I shall shortly return. It is sufficient at this point if I remind the Court that a judge is not party to an agreed set of facts. The tender of the agreed facts does not relieve the judge from his fact finding responsibility but simply limits the material from which the facts may be found. To that extent, if it be the case, that the facts as agreed between the crown and each of the offenders does not reflect the actual events that occurred, it must be remembered the Court can only find facts from the evidence placed before it.

7 Each offender's rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts for pleas of guilty, whether special circumstances are to be found, whether any of these offences attracts a standard non parole period and if so whether the offence is one that requires a standard non parole period and finally of course the ultimate length of the term of imprisonment and other penalty that is to be imposed.

8 None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined see R v Cuthbert [1967] 2NSWR 329, R v Rushby [1977] NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

Facts

9 About 2am on Sunday 11 February 2007 Kodey McNamara, Michael Grant, a third offender and a group that I understand from the evidence to be somewhere about twenty to thirty had left the Post Office Hotel. The group was moving in a northerly direction on the footpath in Frome Street. I have tried in the days since receiving this evidence to envisage the spot in Frome Street opposite the court house really, where I anticipate this offence occurred. If it occurred near the pub then Jaydon Bryon must have gone over, not just the kerb, but the safety protrusion of the footpath into the street.

10 A white Toyota LandCruiser owned by Glenn Withers’ parents drove off from a parking spot directly outside the hotel. Glenn Withers was not driving, he was in the passenger seat. The vehicle was driven by one Jayden Byron a disqualified driver. It also headed in a northerly direction. It started with rapid acceleration of such force as to cause the rear tyres to skid and I have no doubt squeal on the roadway.

11 Police sitting in a marked police vehicle outside the Moree Police Station saw the incident. The vehicle drove and then swerved suddenly to its left mounting the footpath at the same time increasing its speed. It headed directly towards the crowd of youths who recently had departed the hotel. They were on the sidewalk directly in the path of the vehicle. The youths had to scatter for their lives or be struck by the vehicle. The vehicle drove some twenty metres along the footpath before returning to the road. It continued to accelerate along Frome Street reaching a speed police estimate of to be of about 100 kph. Police immediately set off in chase.

12 One of the members of the crowd responsed to the drama by calling out words to the effect “this is Renae Subeni all over”. Moree locals, and in particular Michael Grant and Kodey McNamara, knew the significance of that comment. Each had poignant recollection of the late Renae Subeni. She had been killed seven years before when another young man had wantonly aimed his vehicle at and driven into a crowd of young persons at a party somewhere in Moree.

13 Michael Grant was there and had witnessed the incident. Significantly his brother and sister were also in that group and had to flee from the path of the oncoming vehicle. I accept the incident had, both at the time and subsequently, a profound effect upon him. I accept that the connection between the events being drawn to his attention inflamed and/or made more urgent a response from him to the situation. I accept it was one of a number of factors contributing to his response. Likewise it was a factor contributing to McNamara’s response.

14 McNamara, Grant, the third offender, and it would seem one or two others, got into a car headed in the same direction as the LandCruiser and police vehicle.

15 Others of the youths in the crowd would appear to have followed in other cars.

16 The offenders received information, no doubt via the mobile phone, that Withers and Byron were staying at the Sundowner Motel. The three offenders were driven there at least there is no evidence which satisfies me either of the offenders before the Court drove the motor vehicle in which they were travelling.

17 The LandCruiser was parked in front of unit 6 and 7. When McNamara and Grant arrived, Withers was checking to see if the white vehicle had been locked. He was approached by all three offenders. Each of McNamara and Grant punched him to the head causing him to fall to the ground. It was only after these blows had been struck that McNamara thought to ask him if he had been the driver of the white LandCruiser. Withers denied he had been. Grant grabbed a garden chair and a bottle smashing two of the cars windows and the windscreen. The car belonged to Mr Withers, the father. So far as I can tell he was an absolutely innocent victim. He had, of course, been nowhere near the scene.

18 McNamara focussed on dealing with Jayden Byron. He kicked in the door of unit 6 at 2 in the morning. The occupant of the unit, a female, was woken with the door being kicked in. Terrified she screamed. To state the obvious she had nothing to do with the matters that were upsetting McNamara. McNamara, in no way dissuaded, then moved to unit 7, repeated the process, he kicked the door in. Again an unconnected innocent woman was woken from her sleep terrified and screaming.

19 Withers, recognising the inevitable, that other doors were likely to be kicked in showed McNamara and Grant room 15. That door was also kicked in by McNamara. Jayden Byron was inside. He armed himself with a small pocket knife. I infer he did so only to defend himself. I infer he was fearful of what was about to happen. He was disarmed. Each of McNamara and Grant entered unlawfully those premises and punched him to the head, each in the company of the other and as I understand it a third person.

20 Police arrived. The two offenders immediately and without any further trouble left the unit. Each of McNamara and Grant remained at the scene. Each participated in a sound recorded record of interview at the scene in which each made full admissions as to the part he played.

21 McNamara told police that he and others including his girlfriend had to jump out of the way to avoid the oncoming LandCruiser. Grant said the vehicle had only just missed him, his brother and sister - echoes of the past.

22 Each told police he had been drinking that night. It must have been obvious to police each of these men was well effected by alcohol.

23 McNamara conceded “I took matters into my own hands and I’m sorry”. Grant told police “if I was sober it wouldn’t have happened at all. I just would have been home”.

24 Both Withers and Byron suffered injury at the hands of their assaulters. Details of those injuries have not been disclosed to the Court. The malicious damage to the doors amounted to $1,023. The damage to the motor vehicle amounted to $597. I shall record that the following day each of the offenders put in process steps to repair and compensate for damage caused by their criminal conduct. On 15 February and 28 February earlier this year invoices totalling $1,023 were given to McNamara and Grant for damage to the motel. Each paid $512 towards those invoices. Grant paid for the repair to the motor vehicle windows and the windscreen. The action of each offender was done in the presence of, and perhaps seen by occupants of, or youths who came to the Sundowner Motel.

Objective criminality

25 From the facts as he finds them to be a sentencing judge is required to assess what is called the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of each offender. That is done by comparing objectively the criminality exhibited in these cases with criminality of offences of a similar kind. It is in this way that the seriousness of the criminality of these offences can be evaluated. You would understand that the objective criminality has an important impact upon the overall sentencing outcome.

26 These are offences that have at their heart a vigilante motivation that undermines the rule of law. Retribution by at least these three, if not the mob, for a few minutes in the early hours of the morning of 11 February was seen to justify damage to three doors to the Sundowner Motel an innocent victim; the terrifying awakening from their sleep of two innocent third parties; and the damaging of a motor vehicle belonging to a father who had contributed nothing towards the outrageous conduct of an associate of his son.

27 The rule of law recognises a number of important propositions. Included among these are the right of persons to enjoy and use their personal property. In the case of the Sundowner Motel to produce income without fear of it being destroyed for no legal purpose. The right of persons such as Withers and Byron to the integrity of their body. Primarily the administration of criminal justice depends upon the proper investigation of crime by police and the fair trial of those accused and the sentencing of offenders by the Court. The offences with which I am dealing undermined the rule of law and in so doing caused fear and property damage to a number of otherwise disinterested citizens.

28 The aggravated break, enter and commit the offence of assault occasion actual bodily harm in the company of others carries a standard non parole period of five years for offences that fall within what is called a mid range of seriousness. In assessing whether these offences would fall within that range I note that none of these offences was planned or indeed conceived until after the LandCruiser was driven at the group of youths. Even then the offences really were not conceived until the LandCruiser and Withers was seen at the Sundowner Motel.

29 The two offenders had consumed copious quantities of alcohol for purposes related to the celebration of the end of the cricket season or some other social cause. To the point in time where they were driven at by Byron there is no suggestion either offender was acting obnoxiously. Their overstated aggressive behaviour comes as a direct result of Byron’s act.

30 The offence committed by Jayden Byron put several lives at risk including lives of those important to each offender and in the case of Grant to the lives of those who had already once been similarly threatened. The similarity of Byron’s conduct with the conduct of another driver causing death of a victim known to both offenders seven years previously was called to their minds by a comment made by a member of the crowd. That comment of course was not made with a view to inciting them but simply an observation of what that person felt.

31 While Grant and McNamara appear to have accepted a leadership role, others in the crowd attacked by Byron were no doubt voicing anger, resentment and a desire for action. It may well be that those voicing anger, resentment and a desire for action, rather than being cool headed, allowed or contributed to or made easier for Grant and McNamara to do what they subsequently did.

32 The smashing of the two doors and disturbance of the occupants of unit 6 and 7 constitutes an aggravating circumstance of the offence that carries the standard non parole period. However that aggravation is itself muted in that the smashing of the two earlier doors by McNamara was done in the mistaken belief that the LandCruiser was parked at the front of the unit containing Byron. I am satisfied McNamara genuinely believed that Byron would be in unit 6. When he was not there I am satisfied that McNamara genuinely believed he would be in unit 7. His reasoning was hopelessly wrong but his motives were not one of pure wanton destruction of the Sundowner Motels property.

33 McNamara was young, aged 19 I think at the time. Grant of course was aged in his late twenties.

34 The offence of break and enter was the first offence of its kind by either. Grant had a prior actual bodily harm assault for which he was fined $900. I will come to that later.

35 Each offender was entitled to a legitimate, and I stress the word legitimate, sense of outrage at the conduct of Byron in driving at him. Their subsequent illegal activity initially sprang from that legitimate sense of outrage.

36 In all the circumstances therefore I would not find that the objective seriousness of this offence fell into that mid range of seriousness that attracts the standard non parole period. For the reasons I have just given while on its objective criminality I find it to fall below a mid range of seriousness. The offence is far from trivial or minimal. It must be somewhere between the mid range of offences on its objective seriousness and the lower end. On a spectrum I would place it just below mid range of seriousness as evaluated on its objective circumstances.

37 I turn now to what I call the subjective circumstances. I am both entitled and required to do that. Not only am I sentencing for the criminal offences but I am also sentencing each of these offenders for them. Each offender coming before the Court will vary from other offenders who stand or who have stood for sentence. Circumstances personal to an offender may offer to the court some explanation and insight into the commission of this offence by these offenders or some reason why a more or less sentencing outcome is appropriate.

38 I will review firstly the subjective circumstances of Michael Grant.

Family dynamics/social relationships

39 Michael Grant aged thirty works as a farm hand on Gurlie Station some fifty kilometres south of Moree. He has a partner, Sarah and a four month old son Charlie. He is the oldest of three siblings, a younger brother and sister previously mentioned. His family attended court to support him. He took the opportunity when giving evidence to undertake to them to do nothing like this again. I sense his family is close to and supportive of him. He acknowledged in court that among others his family had suffered stress as a result of his actions.

Education/work history/skills

40 Grant was educated to Year 12. He is employed by LRG Partnerships. Glenn Furnass supplied a reference recognising him as a highly valued and respected team member. He is engaged in areas of header driving, tractor driving, cattle work and farm maintenance. Furnass evaluates him as “extremely capable”. He is described as being able to take instruction and to use his own discernment. Grant is studying Agri business at university and has all but completed the degree. I think it is at the University of New England. The last unit is being done by correspondence. Grant has experience in pubs, presumably behind the bar. He has sporting skills particularly in Rugby. Of the five references tendered on his behalf three make reference to his leadership skills. It is to his credit that he has a capacity to lead. Such gifts also bring with them obligations, that is to lead responsibly. He presents as an impressive, decisive and determined young man.

General health

41 As best one can tell from appearances in court he is a strong, well built, athletic man in excellent health.

Mental health

42 There is no psychiatric report. There do not appear to be any mental health issues. He has had the benefit of a supportive and non deprived upbringing. He has a good work ethic.

Alcohol and drug issues

43 I am satisfied on the evidence before me there is no illicit drug use. However it is clear there are alcohol issues; probably power drinking (seeking a level of lift in mood quickly) and binge drinking (episodic heavy drinking to a point of heavy inebriation).

Features in grants abuse of alcohol

44 The offender to his credit has sufficient insight to link his overstated aggression to his alcohol consumption. Almost immediately he approached the Anglican Counselling Service. He has had four counselling sessions with Wendy Long, a counsellor/educator. He says he has halved his alcohol consumption by drinking less frequently. That no doubt is of significant benefit to him, his family and social circle. It may well be that he still needs to address the features of drinking I referred to above, namely power and binge drinking.

Character and antecedents

45 Michael Grant presents as an impressive young man. Since obtaining his Higher School Certificate he has worked and made significant contributions to the community through work and sport. During his uni study he made time to contribute to anti-youth suicide group “Links for Life” where he played a pivotal role in coordinating and raising in excess of $10,000 for that cause in 2001. He served as the club captain of the Robb College Rugby Club.

46 All who have supported him with references remark that the offence is out of character. One of his referees wrote “in all incidents Mr Grant has always been composed, showed leadership and made rational decisions handling all situations extremely well”. Regrettably it cannot be said in handling this incident with which the Court is dealing that Grant displayed any of the characteristics so admired by his referee. I do accept however that generally it was a past pattern. I say generally because there is an assault occasion actual bodily harm on his record. The fine for that assault is $900. To one experienced in the law such as me that is a heavy fine which indicates that the assault must have been of some seriousness or done in serious circumstances. There are also three charges relating to a driving incident in December 2001. Nonetheless the offender’s prior record is such that leniency can be extended.

Attitude to the offence

47 There is little doubt that this offender is genuinely embarrassed by and disgusted with his behaviour. He has come to realise the enormity of his offending as the prison gates come into focus. He has come to understand what imprisonment would mean. As he said in his evidence “everyday I see my son doing something different and I don’t want to miss any of that”. There is an aspect of this case which has particularly impressed me. Both these young men have supported each other in seeking to retrieve and restore as much as could be retrieved and restored from their situation. Both set about recompensing for the property damage. Both sought to address together in counselling their drinking issues and I have little doubt that both sought to comfort and support each other as the court case approached and hopefully thereafter.

Plea

48 Both offenders pleaded guilty from the outset. There does not appear to me to have been any plea bargaining. Each appears to have accepted full responsibility for his actions. Each was forthright with the police on the morning of the incident. Each acknowledged the violence of his behaviour. In the case of each offender I do not intend to give a discount for the plea but I do intend to give a full benefit by changing the nature of the final sentencing outcome.

49 I turn now to review Kodey McNamara’s subjective features.

Family dynamics and social background

50 He is a twenty year old man residing with his partner of three years. They live with his mother, her partner and two of his siblings. I know he is an uncle although to whom I am not entirely sure. There has been no contact with his father since birth. He told Probation and Parole that during his formative years there was no male role model for him. His family members were in court to support him. Notwithstanding the absence of a father it would appear he has otherwise been well supported and cared for during his childhood. One of his referees however made reference to his “attempting to protect and support his friends and family in some horrendous situations”. What those situations were and what, if any, impact they had upon him was not explained in evidence.

Education/Skills/Vocational History

51 The pre sentence report speaks of him achieving Year 12 Higher School Certificate status. It is noted that his longest period of unemployment since leaving high school has been two weeks. His work is casual and seasonal. There is a reference from Auscott. Lewis Loder, the day shift supervisor, informs the Court he is working at the Midkin Gin, that he is cooperative and eager to learn. He interacts well with team members. Another referee worked with him supervising him as a harvest casual. There McNamara showed capacity to work independently for extended hours, meet deadlines and display reliability. Currently he is working twelve hours daily, seven days per week. For the present he has put sport and drinking on hold. McNamara was a member of the B-grade side which had played in and lost the grand final earlier referred to. His evidence was he is comfortable with and enjoys his work choices. He earns $2,000 per fortnight.

General Health

52 Kodey McNamara is a tall, fit, solid built man who also appears to be in excellent health.

Mental health

53 There is no report of any mental health issue that would impede his future well being. He recognised immediately after his criminal conduct that he had anger management problems. I have already referred to his seeking counselling for it with Wendy Long. She observes “he worked very hard showing motivation and enthusiasm to manage his anger during these sessions”.

Alcohol and drug issues

54 There is no evidence to suggest any illegal drug use. There is however evidence of alcohol problems. On the day in question, for example, he had been drinking for twelve hours straight. There is insight into the link between his drinking and anger management. His response, in addition to counselling, has been to consume no alcohol since the offence.

Character and antecedents

55 This offender is still a young man. He has contributed to the community through his work. He has displayed a strong work ethic. He appears to be a family man valuing his partner and other family members. He has only one prior criminal offence, custody of an offensive weapon in a public place for which he received a six month s 9 bond. I am, in the light of that penalty, prepared to regard him as being otherwise a person of good character. Clearly the magistrate did not regard that offence as overly serious. His record entitles him to some leniency when dealing with the matters before the court.

Circumstances motivating the offence

56 The conduct of the driver on the evidence before me was criminal, dangerous and outrageous. No doubt this offender recognised all of those qualities in the driver’s conduct. Legitimate outrage would not have been a problem but it morphed instantly into a desire for retribution which he sought to satisfy. He had known Renae Subeni, I have already found that as a factor involved in his response. His consumption of alcohol though was a more significant factor. He was disinhibited, was impaired in his executive skills including judgment and cognition skills.

57 There is growing research showing adolescent and young men, aged eighteen to twenty-five, are not fully developed in those mental skills classed as executive skills. These are the skills relating to making judgment. Particularly in emotionally and tense situations the capacity of this group of society to make appropriate judgment calls is poorer than it ultimately will become. However there is no expert evidence on this before me. While I am aware of the existence of research the extent, if at all, to which it applies to this offender is not in evidence and therefore moot. Its significance is that executive skill development may have played some part.

58 I do however reject as an explanation one given to Probation and Parole by him that he was seeking to report Byron’s reckless use of the vehicle to police. It is highly likely on the evidence before me that he knew the police were already aware of the incident and were searching for the offender. It is to be recalled when I recited the agreed facts one of those facts was that the police vehicle left almost immediately chasing them. The explanation given to Probation and Parole is either an attempt by him to rationalise or perhaps to minimise his involvement. The danger of that is that it blocks the path to rehabilitation because he will have nothing to rehabilitate from in his mind.

59 I should note in fairness that in evidence before me he was fully accepting of the extent of his conduct, its criminal nature and its impact upon the several victims. It is for that reason that I later come to a finding he has good prospects for rehabilitation. I am satisfied he is genuinely and realistically contrite.

Rehabilitation prospects both offenders

60 I am satisfied both offenders have strong rehabilitation prospects. Both have strong family and community support. Each appears to have supported the other towards rehabilitation and restitution since the incident. Both have accepted full responsibility for their offending conduct and are genuinely contrite. Both have minimal or minor involvement previously with the criminal law. Both have good physical and mental health. Both have a strong work ethic. Both appear to have reasonable self image. Michael Grant has sought in the past to make significant contributions to social issues of importance affecting others. Both have contributed to the community through sport participation. Australia rightly values its sportsmen and women as role models.

Setting the sentence

61 The circumstances of this offence, namely the vigilante aspect requires a component of general deterrence. I intend to achieve that end by imposing a term of imprisonment upon each for the major offence. As to personal deterrence I am persuaded that the likelihood of further offending is low. The arrest of, charging of, Local Court appearances, District Court appearances, denunciation of their conduct in open court by a judicial officer, the imposition of the penalties about to occur all constitute personal deterrence sufficient for these two men.

Minimum non parole period

62 I have already noted on its objective facts the aggravated break and enter, that is the major offence each faces, is below a mid range of seriousness recognised for these offences. Having now reviewed the subjective features of each I note that these subjective features would reduce further the level of seriousness for sentencing purposes. Further, I note a statutory non parole period would apply only after trial.

63 Of course the establishing by Parliament of a standard non parole period was an indication by the Parliament that it intended sentences imposed for these offences to be generally increased over past practices. In the first Court of Criminal Appeal judgment on standard non-parole periods the Court of Criminal Appeal, being a court to which this court is subject, after the introduction of the standard non parole, made this point, which it seems to me I can take advantage of [my memory of it is that the Chief Justice gave a judgment in which Wood J, the then Chief Judge at Common Law and Simpson J agreed, at para [114 Division 1A of Part 4 of the Sentencing (Criminal Procedure) Act”] you can take it from me that relates to the standard non parole period,

takes its place in the context of an Act which contemplates sentences other than those requiring a full term of imprisonment. In this regard it is noted that s5(1) gives an important direction in so far as it provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate”

115, “This reflects the accepted principal that imprisonment is a sentence of last resort. A circumstance which the Act recognises in so far as provision is made for the suspension of sentence, periodic detention, home detention, monetary penalties and bonds to be of good behaviour. To that list could have been added parole periods.

116, the nature of offences included in the table is such that only rarely will sentences involving an alternative to full time custody be appropriate. However there is nothing in the Act to indicate any intention to confine the available sentence for a Table offence to one of full time custody provided that a non custodial sentence would be a proper sentence upon the particular facts of the case. In fact subject to appropriate reasons being given s 54(C)(1) of the Act expressly contemplates that alternatives to full time custody will continue to be available”.

64 What needs to be taken from that passage is that it will only be rarely that a full time custodial sentence will be avoided. Clearly if it is only rare that an offender will avoid full time custody in these cases then only exceptional cases will qualify. After some anguish I have come to a view that this is such an exceptional case for both young men:

• the conduct of the driver was inflammatory placing as it did a number of young and innocent persons in serious peril
• neither offender was drinking for other than a social purpose
• each offender was personally threatened and persons important to each offender were likewise threatened
• the episode had echoes of a prior tragic killing
• the response of each was neither foreseen nor planned
• the driver was fleeing the scene and police, his conduct thereby appearing not only outrageous but also cowardly
• the damaged property was repaired forthwith and at the expense of each
• the assault upon each victim was one limited to occasioning actual bodily harm
• the rehabilitation of each offender commenced upon the following day or days and has been seriously undertaken by each
• each has minimal or minor criminal record
• each is impressive and performing otherwise as valued members of the community

Parity

65 Both offenders criminality is in a sense embraced equally in all offences. I intend to treat each as equally culpable.

Sentencing disposition

66 Had the offences of assault occasion actual bodily harm and malicious damage come before the Court alone I would have been inclined to deal with them by way of heavy fines or a community service order. In the circumstances I intend to deal with them by way of fines.

67 Michael Grant will you stand up please? Michael William Grant you are convicted of this offence:- that between two and two ten in the morning on 11 February 2007 at Moree you assaulted Glenn Withers occasioning to him actual bodily harm while you were in the company of Kodey McNamara and one Brad Harmon. For that offence you are fined $1,000. Likewise you are convicted between the same time and at the same place you maliciously damaged property, to wit, the LandCruiser motor vehicle which was the property of Glenn Withers Senior, the dad. For that offence you are likewise convicted and fined $1,000. You are also convicted of the aggravated break and enter which is in these terms: that you on 11 February did break and enter the dwelling house of Jayden Byron because he was staying there, it is not his home of course, situated at the Sundowner Motel and in the said unit committed a serious indictable offence, namely assaulting him occasioning to him actual bodily harm in circumstances of aggravation, that being that you were in the company of another persons, namely Kodey McNamara and the said Brad Harmon. In respect of that offence I am sentencing you to twenty months imprisonment. I do intend that that sentence will be suspended upon your entering into a bond to be of good behaviour for twenty months from today. It will have these conditions: that you will accept supervision of Probation and Parole for six months and thereafter at the discretion of the Probation and Parole, that you will accept all reasonable directions of the Probation and Parole and in particular counselling, treatment and programs related to your alcohol consumption and your anger management. I should note that any failure to accept supervision which means not respond or not be there on time will result in a breach of the bond. It will be a condition of the bond that it will be deemed a breach of the bond so that you know. In the event of a breach of the bond I am to be notified within forty-eight hours and you will be called up in front of me. I need not tell you what is going to then happen. Sit down.

68 Kodey McNamara will you stand up please? Mr McNamara I am convicting you of the offence that again between two and two ten in the morning on 11 February 2007 at Moree you assaulted Glenn Withers occasioning actual bodily harm to him while you were in the company of Michael Grant and the said Brad Harmon. For that offence you are to be fined $1,000. I am likewise convicting you that you at the same time and place you maliciously damaged property, the property of the Sundowner Motel. For that offence you are likewise fined $1,000. For the offence that you at the same time and place broke and entered the dwelling house Jayden Byron situate at the Sundowner Motel and then in the said unit committed a serious indictable offence, namely assaulting Jayden Byron while you were in the company of Michael Grant and Brad Harmon you are likewise sentenced to twenty months imprisonment. Again conditional upon your entering into a bond to be of good behaviour for twenty months from today, that is a year and eight months. I intend to suspend the sentence. The conditions are identical to those that I gave to Michael Grant and I do not think I need to read them out again, you heard them?

OFFENDER MCNAMARA: Yes.

HIS HONOUR: All right just sit down for a moment. Would you check with your clients please and see if they’re willing to enter into the bonds on conditions which I have indicated?

MOYLAN: Yes your Honour, just excuse my back? Thank you your Honour they accept that.

HIS HONOUR: Mr Crown one of the things I will do I haven't set a non parole period.

MOYLAN: No your Honour.

HIS HONOUR: I’m not entirely sure that I am compelled to. I would rather not set it.

MOYLAN: No I don’t think there is a requirement now your Honour.

HIS HONOUR: I think that I have an option to do it as I understand it but not a requirement.

MOYLAN: Yes, correct.

HIS HONOUR: For the benefit of each, should it come to pass that you do come before me, I will note that at this time I do not intend to set a non parole period. But should either come before me on a breach I would have found special circumstances if I were committing each of you to full time custody. That means that you would have had a longer than normal parole period, so it was to your benefit. Counsel can explain that. You will each be remanded because you are now strictly speaking in custody. You will each be remanded into the custody of your solicitor. Once the custodial matters have been dealt with by way of your entering into the bond you will be free to mix with your family and go.

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