R v Nelson, Jacob

[2009] NSWDC 399

CITATION:	R v Nelson, Jacob [2009] NSWDC 399
JUDGMENT DATE:	18 December 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Sentence non-parole period of 18 months; balance of term of 2 years and 3 months.
CATCHWORDS:	Criminal law - sentencing - recklessly cause GBH - standard non parole period offence - New Year's Eve party - offender invited to leave - offender returns in company - victim misunderstands relationship of other persons to offender - victim seeks to separate offender from others - offender attacts victim - bites ear completely off - impact of loss of ear - offender's earlier focus on contrast in physical attractiveness of himself and victim - offender resentful of victim's attractiveness - offender in company - Di Simoni applied - offender effected by drugs and alcohol - objective serious below mid range - mental health issues - drug and alcohol issues - early plea of guilty - standard non parole period not applied.
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	Hearne (2007) 124 A Cr R 457 Gladue v The Queen [1999] 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740
PARTIES:	Regina Jacob Ashley Nelson
FILE NUMBER(S):	2009/000010150
COUNSEL:	Defence: G Jauncey
SOLICITORS:	Crown: Mr R Stainer

JUDGMENT

1. Adam Scammell’s New Year’s Eve and morning celebrations turned sour in a moment as his concern for a drug affected man he had only met that night saw him experience viciousness and life-lasting disfigurement from that man who he sought to help.

2. Jacob Ashley Nelson was the man. When speaking to police shortly after the incident he sought to minimise and rationalise his ungrateful behaviour towards the would-be good Samaritan, that is, sought to rationalise the irrational. He told police “we were wrestling...I wanted to get out of it...I knew he had me for a minute there...I was trying to fight my way out of it and I just sort of bit down and I bit him.”

3. Today Jacob Nelson is to be held accountable for his criminal actions. He has been charged with and pleaded guilty to recklessly causing grievous bodily harm to Adam Scammell. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence, before this court, committed by this offender harming this victim in this community, R v Gladue [1999] 1SCR 688 [80].

4. My initial task requires an assessment of the objective criminality of the offence before the court. I will also need to have regard to matters personal to the offender (subjective matters) the starting point for such assessment requires me to make findings of fact from the evidence before the court relating to the offence and to the offender. My fact finding task has been circumscribed in that there has been tendered a statement of facts which is not disputed by the defence.

5. The offender’s rehabilitation prospects will have to be assessed, even if looking through a glass darkly. Before any sentence can be pronounced there are technical questions relating to deterrence, discounts, whether special circumstances are to be found, whether this offence attracts a standard non parole period and the length of any parole period and finally, of course, the ultimate length of the whole term of imprisonment to be imposed.

6. None of these can be commenced until the primary facts are settled upon. 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) 2 NSWR 329, R v Rushby [1977] NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

Facts

7. For New Year’s Eve 2008 Adam Scammell and some friends went to a New Year’s party in Fairfowl Street, Dulwich Hill. The party was a gathering of about ten people, most of whom were known to Scammell. Two people at the party not known to him were the offender and his mother Louise. Shortly after arriving at the party the group walked down to Marrickville Park where they stayed until about midnight. Then they returned to an apartment, although Louise did not, but apparently returned to her home.

8. Alcohol, cannabis, acid and ecstasy were consumed by some if not all of the people at the party. After retiring from the park at some point, Scammell was sitting on an enclosed balcony with his arm around one or more of the girls joking and laughing. Nelson meanwhile was quiet and withdrawn and had been so throughout the evening. But about this time he made a comment “I’m fat and a loser”. He said to Scammell, “ You’ve got it going with the girls and I never get anything”. One of them was rubbing Scammell’s chest. The offender said, “Rub my chest, rub my chest”, causing the females present, not surprisingly, to be uncomfortable. He was observed as becoming angry and aggressive.

9. He was asked at varying times through the night if he was okay and he said to those there he is “Just tripping”- This from a man who claims this was his only experience with LSD. There was growing concern about his confused and odd behaviour. At one point he appeared to be looking at personal details on one of the phones, a mobile phone not his.

10. Scammell was asked by others if he would try and get the offender to leave the party. Scammell felt sorry for him and thought the offender seemed volatile. He asked Nelson to go for a walk. Once outside Scammell said to him, “I guess it’s a good time for you to head home, it has been a good night.” The offender said “Yeah, no worries mate, cheers.” The two shook hands and the offender walked away.

11. As best I can tell that was a very sensitive way for Scammell to manage, if that is the right word, the offender’s departure from the party. Someone on the balcony saw the offender at some point walking back towards the apartment accompanied by two males. As events turned out one of them was Nelson’s brother. Scammell did not know that and was concerned for the offender’s safety. So he and one of the females went outside to speak to Nelson and those with him. As they met, Nelson said “Can we come back in?” Scammell replied, “No mate sorry, look we’re just winding down now and added “Are you okay?” Nelson replied “No I’m back with these two guys I just met in the street.” Scammell asked the two males to identify themselves but they were not responding but laughing.

12. Nelson became upset, presumably because he wasn’t allowed back into the premises and started shouting at Scammell “Pretty boy faggot” and “You got all the girls and I got nothing”. That appeared to amuse the offender’s brother and the third person. Scammell turned to walk back inside to the party while the offender and the two unknown males walked away on Fairfowl Street.

13. Regrettably, Scammell did not continue to go inside but rather turned around because of concern he had for the offender’s welfare with the two, from Scammell’s point of view, unknown males. He said to the lady with him, “I want to know who those two guys are with Jack. They seem dodgy.” Scammell and the lady walked down Fairfowl Street to a position where they could see the offender and the two males who, by this time, were standing. Scammell walked over to them and said, “Jack come back with us, I don’t want you hanging out with these two guys. Come on mate, let’s go back to the house. I don’t like the look of these guys.” One of those present with Nelson said, “No, no you’re not going with them you’re coming with us.” Scammell spoke to them saying “Look guys you’ve really got to piss off now.” One of them replied “Fuck you man.”

14. Nelson began to scream at Scammell saying, “They’re not just anyone, these guys are my brothers.” Scammell now realised he made a mistake about the two supporters and turned to return to the party. Nelson lunged himself at Scammell, grabbed him in a bear hug, pinned him against a brick wall of a front fence and from there they fell to the ground. One wrestled against the other, Scammell trying to release himself. But Nelson, who currently weighs about 130 kilos, used his substantial body weight to keep Scammell on the ground. Scammell called out “Help me, get this guy off me.”

15. Neither of the two men who were there apparently intervened, although the lady did. Scammell was screaming at the offender, “Jack, Jack what are you doing mate?” Nelson’s mouth was near Scammell’s face. The lady was screaming “Stop, stop.” Nelson was growling into Scammell’s ear and said at least twice “I’m going to kill you.” Scammell felt the offender’s teeth biting into his ear and heard a sound like that made when someone bites into an apple. Meanwhile the lady was gouging at his eyes trying to get him off Scammell.

16. Adam Scammell’s left ear was bitten completely off. It was spat out onto the bitumen road in Fairfowl Street. Scammell was in severe pain and bleeding. He jumped up and ran away from Nelson screaming, “Where’s my ear, where’s my ear?” It was I think ultimately rescued.

17. Nelson and the two men ran from the scene. Ambulance and police attended. A crime scene was established. Scammell was taken to Royal Prince Alfred Hospital with the severed ear in the hope it could be reattached. He underwent emergency surgery to clean and seal the wound. However, doctors were unable to reattach the ear. Eighteen stitches were needed to be inserted into the wound.

18. The offender was arrested on 2 January 2009. He took part in a record of interview and told police he had drunk a large amount of alcohol including half a bottle of wine, close to a bottle of rum and a few beers. He told police he had bought two tabs of “acid” for $30 from a male person at the party. He had said he swallowed half a tab of acid in the park. As they were watching the fireworks in the park he felt drunk and was disappointed that he felt nothing from the acid. He decided he had not consumed enough to have effect on him and as they walked back towards the premises he took the remainder of the acid, which would have been a tab and a half. He then said he started to feel the effects of the tablets until he was in “a bit of a state”.

19. He said that he received a phone call from his brother and, after checking with the owner of the premises that it was okay, he invited his brother to join them.

20. Subsequently he began to feel “Not with it” and when he left the premises he said he was feeling “Speedy”. He told police that he had met up with the brother and they started to walk back to the party and saw Adam Scammell. Nelson told police that Scammell was being rude and aggressive to his brother and that he felt like “something was going to happen”. He told police:

“I know I was sort of in his face and then he pushed me and then maybe I threw a punch or whatever but we just ended up rolling on the ground. I know… I didn’t know where I was at that point I was - I felt like I was in a rollercoaster and I was just - I was for - for a little while there I had no idea what was going on and then sort of - and then when I sort of realised what was going on. I sort of just bit down hard because I sort of felt I just wanted to get out, I felt like - like I was being man handled. So I just wanted to - to break free. It was, it was - it all happened and so fast and it was just things were sort, of you know… I was angry and I just wanted to, you know, and before I knew it I was up and running”.

21. It is an account that I do not accept. I do not accept that he was being manhandled. The whole history was one of a perception by Nelson and perhaps by those with him that Scammell had been offensive to them and it was their reaction to that that brings Nelson before me.

22. There is hearsay evidence originating from Adam Scammell, which I accept would be evidence he would be prepared to give in Court. The evidence goes to the impact of the loss of the ear. As will be seen the impact is far greater than mere physical loss of two and a half inches of cartilage.

• In the months leading up to the incident Adam was employed in the horticultural industry, mainly at a garden centre. Immediately following the incident he was given the sack because he was away from work for a time and also because his boss “couldn’t look at him”.
• The incident happened only weeks after he had [already] separated from his long term partner. His father also suffered a heart attack at that time. The consequence of the three things was that his whole life he felt had turned upside down.
• Adam’s mother and aunt use to tease him about his good looks. Since the incident they have trouble looking at him and often cry about the change the incident has had on his looks.
• Adam says that his hearing has changed dramatically as a result of the incident. The wind whistles in his ear and everything is louder. These things are very disconcerting and cause him some distress.
• Adam says he is very depressed about what has happened to him. He does not go out. He would like to hide his injury from others, but this is difficult so he chooses to stay away from them.
• Before the incident he was employed casually as a model. He used to work occasionally at functions for female customers such as hen nights. He has been unable to carry out any of that work since the incident.
• He believes that the plastic surgery necessary to give him a prosthetic ear is possible but very complicated and expensive. He has not been able to find any employment since the incident, does not have a general practitioner to advise him on medical issues. He has not seen any one about his injuries since he was discharged from hospital.

23. From the facts as he finds them to be, a sentencing Judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of this offender. That is done by comparing objectively the criminality exhibited in this case against criminality of offences of a similar kind. It is in that way that objective seriousness of criminality of this offence is evaluated. Objective criminality has an important impact on the overall sentencing outcome.

24. I suppose a starting point is to remember always that we each have a right to the integrity of our own bodies and that where that integrity is intruded upon by conduct that is criminal and not consented to the offence is automatically a serious trespass against a person. The more lasting the damage and the more serious the disfigurement or disability the more serious the crime.

25. This offender had clearly been focused on his perceived contrast between his appearance, manner and apparent charm and that of Adam Scammell, seeing himself against that comparison as the one who was impoverished. Comments he made leave open the question of a resentment by him that he faired so poorly in that comparison and consequently in the rewards he saw Adam Scammell enjoying, as he perceived them to be, the attractiveness of Scammell to the opposite. That resentment, his intoxication by drugs and alcohol made it easier for him to become offended when Adam Scammell sought to separate Nelson from his companions. Nelson’s response to this man who was seeking to do him a kindness was absurdly disproportionate to the unintended slight by Adam Scammell.

26. The injury occasioned severe pain, bleeding and required emergency and hospital treatment. It has caused permanent disfigurement. The disfigurement is the more poignant because in a moment it transformed a handsome man who was rewarded for his good looks into a freak who has since been rejected by those who gave him modelling opportunities and gigs such as the hens nights.

27. The offence appears to have occurred whilst the offender was in company, but the Crown has not relied upon that aspect and I do not take it into account. In any event to do so would offend De Simoni, see for example s 35(1) Crimes Act 1900. The injury was occasioned without the use of a weapon, the offence was impulsive and a response to a perceived slight by Scammell upon Nelson’s companions. I am satisfied there was nothing in Nelson’s relationship with either companion acknowledging one was his brother, that could have constituted any form of legal provocation for the attack.

28. The attack occurred in circumstances where the offender was clearly intoxicated by the effects of alcohol and drugs. I am satisfied the combined effects of them contributed to his disinhibition and his choice of violence as a means of response. In so saying I do not want it thought that I regard him as not being control of his decision making. It simply made more attractive to him his decision to engage in conduct he knew to be criminal. The level of recklessness I am dealing with here is a disregard of the criminal law in circumstances where he knew conduct was unlawful but he permitted his emotions to govern his decision making.

29. As to the seriousness of the injury, lifelong disfigurement makes the injury serious. Consequent impairments to the hearing facility add significantly to the seriousness of the injury. When assessing the objective seriousness of the matters as I have set out above, I would place it below the mid range of seriousness. There was no detailed planning, the malice was spontaneous, although resentment had been lurking in the background, the recklessness was a disregard of the known prohibitions of the criminal law, the cannibalistic mechanism by which the injury was achieve was repulsive in the extreme. While qualifying as really serious injury it was substantially below catastrophic. The level of incapacity while substantial is not at a level of extreme physical disability. The injury is capable of mitigation and hopefully Mr Scammell will be motivated to, and obtain the funds for, rehabilitative surgery and/or prothesis. I would place it at a point above the half way between the lower reaches of the beginning of the mid range and a low level offence. Nonetheless, against a prescribed standard non-parole period of four years for a mid range offence, this offence still calls for a significant period of incarceration.

30. Jacob Nelson is a young man who claims in evidence he was born in April 1987. Police antecedent records indicate he was born in April 1985, although I do see that he has told police on two occasions he was born in 1987. So in the absence of a birth certificate he is either twenty-two or twenty-four at the time of sentence and year younger at the time of the incident. His father was an Afro-American serviceman who appears to have played no part in his son’s life. The major adult influences in his life today appear to be a step-father, his mother and maternal grandmother.

31. Even so, his early life was unsettled. His mother then had drug abuse issues and depression. The drug abuse issues are said to be in remission. I have no information about the depression. There was a serious suicide attempt by her. The relationship between mother and step-father apparently ceased years before the offender’s birth and so the mother and step-father each had custody (if that is the right word) of him from time to time until he was fifteen. For a period after he was fifteen both parents were together in the same premises. He spent an extended time with his maternal grandmother in Hobart some time during his mid to late teens.

32. He accepts he has received emotional support and positive guidance from his parents, but the effectiveness of that support and perhaps its quality must be questionable. The offender would appear to be closest to his step-father who appears to be the anchor of positive good influence in his life.

33. Nelson left school aged fifteen whilst still in Year 9. Probation and Parole report his employment history as being unstable. He worked as a carer/assistant in a nursing home for four months and in hospitality for one period of a year in New South Wales and a second period of five or six months in East Arnhem Land in the Northern Territory. That second period came to an end when he was fined for a stupid incident.

34. Nelson gave evidence. He presented as articulate and with at least average intelligence. He has attempted some post-school study, but does not appear to have either the enthusiasm or discipline to sustain it. He is, I suspect, not without ability, but it has to date been pretty well hidden.

35. Nelson presents as a young man. So far as one can tell from Court appearances he is perhaps overweight at about 130 kilograms, but would appear to have otherwise good physical health.

36. There is a past history of mental health issues which have been severe enough in the past to interfere with his work ethic. At seventeen he was unemployed and probably unemployable for eighteen months as a consequence of mental health issues. That period would appear to have begun with a serious suicide attempt. There was a similar eighteen month period as best I can tell in 2007/2008, again marked with a second suicide attempt. Anthony De Diment, a consultant psychologist diagnosed him, on referral from his defence solicitors, as having a long history of depression and anxiety problems from about the age of seven. To that initial diagnosis there was a further observation of use of alcohol “at times bordering on a dependency level”.

37. Since adolescence there have been frequent periods of receiving psychiatric/psychological treatments. At one stage he was prescribed Prozac but took himself off it. Professor Greenberg who saw him for Justice Health questioned whether there was an underlying dysphoria- that is, a long lasting mood disorder marked by depression and unrest without apparent cause. Dr Greenberg’s formal diagnosis however is a young man with significant personality difficulties as the primary diagnosis.

38. My own concerns are that these diagnoses can only be as good as the history given and the presentation available on the day of consultation. I am concerned that there are matters that for one reason or another have not yet revealed themselves which are causing such things as the resentments expressed on New Years Eve. Be that as it may, I am required to act on evidence, I cannot speculate.

39. The offender claims minimal drug use; cannabis at fifteen, but only two times in his life, and LSD only once in his life at the time of offending. It is clear Dr Greenberg did not believe him and nor do I. He does acknowledge however, dependency on alcohol. His evidence was he is an alcoholic. He admits to alcoholic binges and states he has previously had blackouts, alcoholic shakes and early morning drinking. He puts his consumption at up to thirty-six beers per day and a bottle of rum. He has used the term in respect of alcohol of “self-medication”. Medicine and medication are concerned with the art and science of restoring and preserving health due to physical or mental illness by the scientific use of drugs and other medical procedures based upon knowledge, efficiency and monitoring. Whatever he is doing is not self-medication. Self-medication is not just a misdescription, it is a denial of what is happening. The alcohol abuse is contraindicated, if there be drug abuse it is contraindicated and it is harmful. It is not scientific and it is not the subject of knowledge, efficiency or monitoring.

40. He is a young man who has been battling mental health issues. It seems as though he may be coming to accept that he is somebody who needs scientific treatment. He also admits to serious issues with alcohol. He received in September of 2006 a fifteen month s 10 bond for an offence of assault occasioning actual bodily harm. I may be out but it seemed to me that that bond had expired on my calculations two days before, but it might be a year and two days, but I think it was two days before the offence. There is also an offence of dishonesty and alcohol related offences in March of 2008. He is however entitled to be regarded as not having soiled his good character overly much prior to this offence. Technically he kept the s 10 discharge bond, whether it be a year before or two days before.

41. He pleaded guilty before the Local Court, he is entitled to the full benefit of that plea entered on 25 June 2009.

42. He told Probation and Parole he unreservedly accepted responsibility for his offending conduct. He expressed what the pre-sentence report author believed to be genuine concerns for the lasting significant injuries he had inflicted upon his victim. I am satisfied he is contrite. He agreed he needed to engage in treatment and medical directions. In the circumstances of his plea and contrition he is entitled to a twenty-five per cent discount.

43. On any view of the evidence he is a young man and while the resolution of this matter requires a serious custodial penalty be imposed. The primary focuses I must keep in mind is not just one of punishment but also of his rehabilitation, see Hearne (2007) 124 A Cr R 457. This is an offence that carries a standard non-parole period. There are a number of reasons why the standard non-parole period would not apply in this case. Matters pursuant to s 21A(3) may be taken into account, even if this were a matter falling within the mid range of seriousness to relieve him from a standard non-parole period. Those matters would include his youth, his plea of guilty and hopefully his rehabilitation prospects. But in any event as I have already indicated on this objective seriousness the offence did not fall within the mid range of seriousness. Nonetheless, the standard non-parole period still has serious work to do.

44. General deterrence is perhaps a little more muted in this case than in others, although there is no evidence that really says that the appellant was suffering from mental illness at the time. But I do take into account his vulnerability to it. Personal deterrence however is of significance here and the sentence structure that I have arranged hopefully will give account of both rehabilitation and personal deterrence.

45. But for the plea of guilty I would have set an overall sentence here for this offence of five years. With a twenty-five per cent discount that sentence is reduced from one of five years overall to one of three years nine months.

46. Would you stand up please?

47. Jacob Nelson I convict you of recklessly causing grievous bodily harm between the hours of 3:45am and 3:50am on 1 January 2009 at Dulwich Hill by inflicting grievous bodily harm upon Adam Scammell in what is classified as domestic violence related offence. I set a non-parole period of eighteen months to commence on 2 January 2009 and to expire on 1 July 2010. I find special circumstances. The special circumstances as I have already indicated are your rehabilitation and the need for personal deterrence. I set a balance of term of twenty-seven months, or two years and three months, so the bulk of your term will be served in the community.

48. Just have a seat please while I explain this to you.

49. If you breach the parole - there are two things I need to explain - firstly you will not get parole unless you convince the parole board that your merit it. But you will be eligible for parole on 1 July next year. So get yourself involved in programs or whatever and convince them. The second is if you breach your parole you will not be released from any breach for twelve months, because they only review them once every twelve months, so you will serve at least a minimum twelve more months. That is the personal deterrence aspect. Do you understand that?