R v Nathan John Masclet
[2013] NSWDC 139
•27 May 2013
District Court
New South Wales
Medium Neutral Citation: R v Nathan John MASCLET [2013] NSWDC 139 Decision date: 27 May 2013 Before: Cogswell SC DCJ Decision: Convicted of the offence of recklessly causing grievous bodily harm. Sentenced to 3 years and 9 months imprisonment, non-parole period of 1 year and 11 months.
Catchwords: CRIMINAL LAW - Particular offence - recklessly causing grievous bodily harm - glassing - victim's eye surgically removed. Sentence - purpose of sentence - general deterrence - alcohol fuelled violence causing glass injuries in hotels - relevant factors - prior criminality - offences of violence dealt with by Children's Court - response to charge - admissions to police - plea of guilty at earliest opportunity - expressed genuine remorse in witness box - risk of re-offending - conflicting opinion - psychologist assessed offender as high to moderate risk of re-offending - prior to sentence offender completed rehabilitation (counselling and support course) - strong family support and personal change - spontaneous unpremeditated crime - reasonable prospects of rehabilitation - special circumstances found - need for further alcohol dependence treatment, young age, first time in custody. Legislation Cited: Crimes Act 1900, s 35(2). Category: Sentence Parties: Regina (Crown)
Nathan John Masclet (Offender)Representation: Solicitor:
Office of Director of Public Prosecutions (Crown)
Legal Aid (Offender)
File Number(s): DC 2012/70875
REMARKS ON SENTENCE
I am sentencing a young man who is still only 20. He has been in trouble before but now he has committed a very serious crime. He has harmed others in fist fights before. This time however he was in a drunken rage when he punched a man in yet another street brawl but he had a glass in his hand at the time and he lacerated the victim's eye so badly that it had to be surgically removed. On the other hand, his young life has changed since this event. He has stopped drinking, changed his friends and commenced a healthy relationship with a stable young woman. They are expecting a child at the end of this year. I have to impose a sentence for the crime which is appropriately severe for such a harmful offence but at the same time take account of his young age and the turnaround in his life.
The young man's name is Nathan John Masclet and the crime which he committed is called recklessly causing grievous bodily harm. That is an offence under s 35(2) of the Crimes Act 1900. Parliament regards the offence as so serious that it has fixed a maximum penalty of 10 years imprisonment to that crime. Not only that, Parliament has specified a standard non-parole period of 4 years in respect of that offence. It is appropriate for me to say something briefly about what happened which brought about this charge against Mr Masclet.
On the evening of 2 March 2012, Nathan Masclet was out drinking at various licensed places around Bathurst. He had a lot to drink. He got to the Elephant and Castle Hotel at about 1:30am the following morning. There he had even more to drink. There was another man there called Jason Dove. At about 3:00am in the morning the hotel closed and began to empty. Jason Dove and some others were standing on the footpath outside. Mr Masclet left by the main door facing onto the same street. A lot of people were milling around after the hotel closed.
Mr Masclet started walking up the road and passed the group that Jason Dove was part of. They started shouting at one another. It escalated to pushing and shoving between both Mr Masclet and Mr Dove. In the course of that, Nathan Masclet punched Jason Dove to the left side of his face. Nathan Masclet was holding a schooner glass in his hand at the time. The glass smashed and caused a deep laceration to the left eye and eyebrow area of Mr Dove's face. They still kept on fighting. Mr Masclet was separated from the group and was escorted up the road. He was arrested a short time later.
In the meantime, an ambulance took Jason Dove to the Bathurst Hospital. The injury was so serious that he had to be transferred to Westmead Hospital. He was found to have a five centimetre laceration to his left eyelid and the globe of his left eye. He had to undergo surgery. His left eye was ultimately removed.
Mr Masclet was sobering up in the police station and after some hours was interviewed by the police and admitted to what he could remember. When he was charged and came before the Local Court, he pleaded guilty to his credit. Mr J L Walford, representing the Director of Public Prosecutions, acknowledges that the plea was at the earliest available opportunity. In due course I will discount the sentence that I should impose by 25 per cent because of that plea of guilty.
Nathan Masclet has a criminal record. Most of the offences were dealt with by the Children's Court before he was 18. In fact, there were only two offences but they were both offences of violence. Both of them were crimes of assault occasioning actual bodily harm. He received a bond from the Children's Court on each occasion. He has only one offence as an adult which was behaving in an offensive manner and having a knife in his custody. That was dealt with at the Bathurst Local Court under s 10 of the Crimes (Sentencing Procedure) Act 1999 and I give it no weight.
Ms L N Haywood appeared for Mr Masclet. She called her client to give evidence as well as his grandmother. Nathan Masclet said that he left home to live with his grandparents when he was a teenager, he was not getting on with his mother and got on much better at that time with his grandparents. He has worked almost all his life since leaving school, with only about six months of unemployment.
He has had a few serious relationships. One of them was with a woman named Amber. They broke up towards the end of 2011 in circumstances which were very hurtful to Mr Masclet. He says that his girlfriend Amber and his best friend began their own relationship. After he learned that and he broke up from Amber he said that he was very emotional and upset and could not trust anyone.
Around about that time he was also in a street fight with his best friend Ashley who had brought about the break up of the relationship between him and Amber. Mr Masclet came out worse from that fight and in fact was severely knocked about so that his bruised face was hard to recognise.
Over the three months or so between the break up with Amber and this offence. Nathan Masclet described his life as being "like hell". He did not know where to go, he was not working at the time and he turned to drinking. He drank a lot more heavily than he used to drink, in fact he was consuming about a case of beer every night. On the night of the offence he acknowledged that he had about 20 drinks and could barely walk.
Since pleading guilty to this offence and perhaps earlier, he has given up alcohol altogether and no longer drinks. He has changed his friends, he mixes with different people and his relationship with his current girlfriend Renee is, he says, much healthier than earlier relationships. He has even made up with Ashley. When he thinks about what he did he is horrified and feels very guilty about bringing about the loss of an eye so far as Jason Dove was concerned.
He was asked whether he regarded himself at risk of re offending. Ms Haywood asked him that question because there was a report from the psychologist which I will come to which suggested that there was some risk of him re offending. Mr Masclet disagreed. He acknowledged that there would be some risk beforehand but now he had changed, as he said, to a totally different person. He has a reason to keep going and derives a lot of support from Renee; indeed she is pregnant and they are expecting a child towards the end of the year.
Cross examined by Mr Walford, Mr Masclet said that he was in Year 9 when he went to live with his grandparents. Mr Walford asked him about the two offences of assault occasioning actual bodily harm which were dealt with in the Children's Court. He said on one occasion somebody assaulted his mother and the other occasion involved drinking. Mr Walford enquired of him about his attendance at a place called Headspace about three years ago. That was a place where he could receive counselling and support. He said that he had finished the course.
Ms Haywood called Mr Masclet's maternal grandmother, Dawn Strong. She said that Mr Masclet was 14 when he came to live with her and her husband. She said that Nathan Masclet's relationship with her and her husband was very good. She noticed the deterioration in his behaviour. She did not approve of the relationship with Amber and observed that Nathan was hurt a lot by the circumstances of that relationship breaking down. She made reference to Nathan being assaulted and said that his face was all cut and bruised. She noticed the increase in drinking and thought that he did it to give himself some form of courage. She and her husband spoke to him about it and he acknowledged that he needed to change but nothing happened.
On the other hand, Dawn Strong observed how significantly her grandson has changed in recent times, especially since committing this offence. She said it is like something clicked in his head. He has become more responsible, he was very supportive of her when her husband had a heart attack, he is a different person altogether and Renee is very good for him.
Ms Haywood also tendered a report by a clinical psychologist, Debbie Case. She thought that his performance in at least one test indicated a high probability of alcohol dependence at the time of his arrest. That was supported by his own history. He had a high score for depression and anxiety which is hardly surprising given the circumstances of her interview with him. Significantly, she thought that his score on a test which assesses the prospect of re offending put him into the high to moderate risk zone.
Debbie Case also noted the increase in alcohol use which was an attempt "to mask his distress over the circumstances surrounding the loss" of the relationships both with Amber and with Ashley. She thought that his "heightened sensitivity to threat of violence may have affected his reactions to what he discerned was a potentially aggressive situation" when this offence occurred. She made the observation - which makes sense - that his capacity for decision-making was probably grossly impaired by his intoxicated state.
She thought that a treatment should be directed to particular areas of risk which could reduce his prospects of re offending. She thought that there would be a risk of relapse "when the restrictions preventing him from frequenting licensed premises are lifted." I have not heard any evidence about such restrictions but I could understand that, as a reaction to his crime, total abstinence seemed to be an appropriate and good step by him. I think that is so but once this case is resolved and he is ultimately back in the community, those circumstances will change and one needs to be more careful at that stage. Ms Case thought that a residential rehabilitation program with a strong therapeutic approach would assist, along with psychotherapy.
I was assisted by submissions from both Ms Haywood and Mr Walford. Ms Haywood emphasised her client's plea of guilty at the earliest opportunity. She argued that his two previous convictions were in the Children's Court and should be given less weight. His only adult offence was dealt with under s 10 of the Crimes (Sentencing Procedure) Act. She argued that his was not a significant record of violence. I think she is right there but the fact remains that he does have a record of violence. The offences which the Children's Court had to deal with him for were both assault occasioning actual bodily harm. They were not plain assault cases but cases involving physical harm. A judge cannot simply overlook that in sentencing an offender for yet another offence which involves violence.
Ms Haywood pointed to her client's personal circumstances as being depressed and anxious and self-medicating himself on alcohol, describing his life as being hell over those three months. She pointed to the evidence of him being hyper-anxious or hyper-vigilant. I think all that has some force, however it does no more than acknowledge the reality of his circumstances. It does not excuse his behaviour.
Much offending which occurs in the community is fuelled by alcohol. Indeed offending which involves just this sort of crime of people being cut or wounded as a result of fights in hotels or clubs occur in circumstances where people have had far too much to drink. Often the reason for them having far too much to drink can be connected with personal psychological issues. It explains but does not excuse what he did.
Ms Haywood argued that it was unlikely that her client would re offend because of the strong family support which he has and his own personal change. I think there is a good deal of force in that argument but I cannot overlook the assessments by the psychologist as well. I think the evidence which I have seen and heard from Mr Masclet and his grandmother does point to him having a very solid and supportive environment in which to change his life.
Ms Haywood pointed out that the crime was spontaneous involving no weapon. That is, of course, true. The crime was one of recklessly inflicting grievous bodily harm rather than involving some deliberate intention. Had it involved an intention it would have been a far more serious crime.
I think his prospects of rehabilitation are reasonable. I would regard them more optimistically than the psychologist would because, I repeat, I have seen him and members of his family giving evidence in court. I think his remorse was genuine and I accept it. On the other hand, as Mr Walford has said, this is a very serious offence. Parliament regards it as very serious, reflected by the penalties which are attached to it. Mr Walford pointed to the two previous offences of actual violence which are on Mr Masclet's record. He argued that despite attendance at Headspace he still re offended.
Both Ms Haywood and Mr Walford provided me at my request was statistics produced by the Judicial Commission. And Mr Walford pointed out that of course those statistics do not indicate how serious any particular offences might be. This, he emphasised, is a very serious offence of this kind. He also referred to the psychologist's assessment of the prospects of re offending.
So as I said, I am sentencing this young man for a very serious offence. What is called general deterrence - that is the necessity to indicate to the public that crimes such as this will be dealt with severely - is very important in a case such as this. Offences involving glass injuries in hotels and clubs have been dealt with a number of times by the courts before. Indeed, I have sentenced another young man in these sittings for an offence which involved the glassing of another person.
Having regard to the circumstances of the offence and its seriousness, I would regard an appropriate penalty as being one of 5 years imprisonment. Because Mr Masclet has pleaded guilty, I would discount that by 25 per cent. The sentence which I fix is therefore 3 years and 9 months imprisonment. The non-parole period which would normally be fixed for a sentence of 3 years and 9 months would be 2 years and 10 months. That is because Parliament has fixed the non-parole period at being 75 per cent or three quarters of the overall sentence.
But in this case, argues Ms Haywood, there are special circumstances for reducing that non-parole period. She points to her client's need for further treatment and support. She points to her client's age and the fact that it is his first time in custody. She points to the matters which are referred by Ms Case in her psychological report.
I agree with those submissions and I propose to reduce the non-parole period from 75 per cent to just over 50 per cent of the overall sentence. The non-parole period will be 1 year and 11 months, that is 23 months.
HIS HONOUR: I will sentence you now Mr Masclet.
I convict you of the offence of recklessly causing grievous bodily harm. I impose a sentence of imprisonment of 3 years and 9 months. It commenced yesterday 26 May 2013 and it will expire on 25 February 2017. I have backdated it one day because you spent a day in custody. I fix a non-parole period of 1 year and 11 months. That commenced yesterday 26 May 2013 and it will expire on 25 April 2015. The balance of the term is 1 year and 10 months commencing 26 April 2015 and expiring on 25 February 2017.
HIS HONOUR: So your overall sentence is 3 years and 9 months. The non-parole period is 1 year and 11 months. And so the first date on which you will be eligible for parole is 25 April 2015, that is just under 2 years from now. And your release on parole depends upon the Parole Authority that determines whether persons are released or not and that is why I used the expression "eligible for parole". Just have seat Mr Masclet.
Ms Haywood and Mr Walford because it is over 3 years, I do not direct his release on parole as I have explained, it's a matter for the Parole Authority?
WALFORD: No your Honour.
HAYWOOD: No that's right your Honour.
HIS HONOUR: And that means I do not fix conditions for the parole either - no?
HAYWOOD: That's also right your Honour.
HIS HONOUR: All right and my Associate will send to the Corrective Services a copy of the psychologist's report.
HAYWOOD: As your Honour pleases.
HIS HONOUR: Is there anything else Mr Walford and Ms Haywood?
WALFORD: No your Honour, thank you your Honour.
HAYWOOD: No your Honour.
HIS HONOUR: All right okay, thank you both very much for your assistance and I will now adjourn.
ADJOURNED
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Decision last updated: 15 August 2013
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