R v Mifsud

[2010] NSWDC 278

CITATION:	R v MIFSUD [2010] NSWDC 278
HEARING DATE(S):	24 September 2010
EX TEMPORE JUDGMENT DATE:	24 September 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentence deferred under s 11 Crimes (Sentencing Procedure) Act 1999. Bail granted.
CATCHWORDS:	CRIMINAL LAW - Sentence - Assault occasioning actual bodily harm - In company - Receiving
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v De Simoni (1981) 147 CLR 383
PARTIES:	The Crown Michael Charles Mifsud
FILE NUMBER(S):	DC 2008/17917
SOLICITORS:	Director of Public Prosecutions Public Defence Practice - Offender

JUDGMENT

1 HIS HONOUR: Michael Mifsud pleaded guilty to two offences, one of assault occasioning actual bodily harm and one of receiving. The maximum penalties for those offences are seven years and ten years respectively.

2 He had earlier been convicted of a more serious offence after pleading not guilty to that offence at trial. He was sentenced for the offence of robbery in company in June last year but that conviction was overturned and a new trial ordered in December last year. He was granted bail and now appears for sentence after having pleaded guilty to less serious offences today.

3 Mr Flood asks that I finalise the matter today on the basis that effectively the offender has served the non-parole period that I would have imposed for these two offences. He has spent nine months and seventeen days in custody plus some time in quasi custody in residential rehabilitation programs, one month at Foundation House and fourteen months at WHOS. Mr Flood’s submission is that, given the objective circumstances of the offence and his client’s efforts at rehabilitation of recent times, any sentence I would impose upon his client would not involve him going back into custody but would effectively see him being placed on a period of parole, Mr Flood says, for ten months. The Crown, on the other hand, I gather, says that there should be a further period of custody imposed today. I am going to do neither what the Crown wants nor what Mr Flood wants.

4 The offence arose when the offender, who had been drinking and who, until recent times, used to drink a whole lot went with two of his friends to the home of the complainant. The complainant recognised the offender but not the two friends. At one point the complainant asked everyone to leave. Instead of doing so what happened was that the complainant was subject to violence at the hands of all three of the other men there.

5 The offender grabbed the complainant on his testicles and told one of his friends to smack the complainant on his head. He called his two friends his soldiers. The complainant told them that he had a heart condition and he had had a couple of heart attacks that year. This apparently caused no feelings of compassion or mercy on the part of the three other men because one of them punched the complainant in the head causing him to fall off his chair. The complainant retreated, going to his bedroom but the offender and his two friends followed him into the bedroom and commenced hitting him. This offender was actually at one stage holding he complainant down so that he could not get up off the bed. He told his friends that they should give the complainant a good whack. At one point he slipped off the bed onto the floor where he was kicked while he was lying defenceless on the ground. One of the men, not this offender, said that “we should cut his throat”. Eventually the three men left and the complainant noticed that his wallet was missing. Police came upon the three men later after having been called by the complainant. When they searched the three men they found the complainant’s wallet in the possession of the offender.

6 Because of the pleas of guilty to charges of assault occasioning actual bodily harm in company and receiving, rather than pleas of guilty to robbery in company, in order for me not to breach the rule in R v De Simone(1981) 147 CLR 383 I will sentence the offender on the basis that what really happened is that one of the offenders took the complainant’s wallet without the complainant’s knowledge and without the offender’s knowledge and that this wallet was given to the offender by one of the other men in the period between when they left the complainant’s premises and when the police arrested them.

7 One of the most important circumstances regarding the offender’s background is his excessive use of alcohol. He was drinking large quantities of whisky every day with no periods of abstinence at all. He was also smoking cannabis regularly. He has a criminal history, including offences of stealing from a person and conspiring to commit an armed robbery and thirty counts of armed robbery. These of course are very serious offences, but they occurred some time ago in 1993 when the offender was a much younger man than he is today.

8 In early August this year, that is not too long ago, the offender entered into a program run by the construction industry, (whether that be the union or employers), called Foundation House. It is a program with which I was not familiar, but apparently it involves one month of residence with counselling, group sessions, exercises, education as well as chores. The offender appears to have successfully completed that program. The offender was also seen by psychiatrists after completion of the program. The psychiatrist recommends, amongst other things, that the offender should be referred to a psychiatrist for treatment.

9 I note that this offence occurred on 23 June 2008. For some part of the time since then the offender has not been at large but he has not, whilst he has been in the community, committed any other offence. He says now that he has not had a drink for some time and wants to continue attending AA meetings and counselling and is prepared to go to a psychiatrist as Dr Allnutt recommends. We therefore have a situation where the offender is promising rehabilitation but has not yet demonstrated it. Whether he is able to rehabilitate himself and to demonstrate that rehabilitation has taken place is of considerable importance to the sentence that I will ultimately impose upon the offender.

10 I do not accept Mr Flood’s categorisation of the offence, as being in the middle of the range. It was a sustained attack during which the complainant was kicked whilst he was in his own home and it occurred after he had asked the offenders to leave. In my view, objectively, absent any demonstration of rehabilitation, a further period of custody is required. However, depending on what Mr Mifsud is able to demonstrate over the period between now and when I next see him, it may well be that I am able to focus my attention on his rehabilitation rather than his punishment.

11 That, of course, is not to say that I will ignore the objective circumstances of the offence at all. It is a fundamental rule in sentencing that the sentence must reflect the objective gravity of what the offender has done, which was not only to commit the offence of violence which I have described, but also to receive one of the products of that violence, namely the complainant’s wallet.

12 Accordingly, in order that I can assess the offender’s capacity for further rehabilitation and allow him to demonstrate that rehabilitation has taken place I propose to defer passing sentence under s 11 of the Crimes (Sentencing Procedure) Act. I will grant bail to the offender for that purpose. That bail is granted subject to the following conditions and I put this as the first condition because of its importance.

1. The offender is to abstain completely from the consumption of alcohol or illegal drugs.
2. He is to attend AA meetings at least once per week.
3. He is to attend a counsellor at Foundation House once per week unless the counsellor recommends counselling sessions should be more frequent or less frequent.
4. He is to seek a referral to a psychiatrist and accept treatment from that psychiatrist for as often and for as long as he or she determines.
5. He is to accept the supervision of the Probation and Parole Service, including regular testing for the consumption of drugs and alcohol and he is to participate in any programs relating to education, anger management and the like as the Probation and Parole Service requires.

13 The matter is listed to come back before me on 24 June 2011. I will order a pre-sentence report for that day. I will order a transcript of the remarks that I have just delivered and should there be any problem with compliance with those bail conditions the matter is to be brought back before me for an application that the bail conditions be amended rather than Mr Mifsud simply ignoring them.

14 Mr Mifsud would you mind standing up please. I suspect that Mr Flood has told you what I have just done or alerted you to the possibility that I might do what I have just done. I am not going to finally sentence you today. I will do that late June next year.

15 If you come back to me having complied with the conditions of bail then it is most likely that you will not go back to gaol. If, on the other hand, you have breached the bail then it is almost a guarantee that you will go back to gaol, do you understand that?

16 OFFENDER: Yes your Honour.

17 HIS HONOUR: You might actually be worse off than if I dealt with you today because if you have demonstrated that despite your promises to rehabilitate yourself you are not able to do so, that is a pretty significant matter that I will take into account when I sentence you, you understand that. There is going to be times when you are tempted. I want you to think about this. Is it worth going to gaol for?

18 OFFENDER: No.

19 HIS HONOUR: Good. Just bear that in mind when that temptation comes because it is a pretty high price to pay for a drink, to end up back in gaol, you understand?

20 OFFENDER: Yes I do.

21 ADJOURNED TO FRIDAY 24 JUNE 2011 FOR SENTENCE

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