R v Riley, Nathan

[2010] NSWDC 81

CITATION:	R v Riley, Nathan [2010] NSWDC 81
JUDGMENT DATE:	12 February 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Sentence to 12 months imprisonment suspended conditional upon entering s.12 CSPA good behaviour bond.
CATCHWORDS:	Criminal Law - Sentence - Assault Occasioning Actual Bodily Harm whilst in Company - Affray on Form 1 - offender travels some distance to join an affray on basis his friend was involved - assault involves punching and kicking victim on ground - injury substantial soft tissue damage - well effected by alcohol - no priors- reasonable subjectives.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Hearne (2007) 124 A. Crim.R 457 R v Cuthbert (1967) 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740
PARTIES:	Regina Nathan Riley
FILE NUMBER(S):	2009/276839
SOLICITORS:	Crown: Mr M Fay Defence:Ms M Ryan

JUDGMENT
1. Nathan Riley is a young Aboriginal male. In March of 2008 he was twenty-one. He was living at Wellington. He had not been in trouble with the law. He had completed Year 12 at high school. He has a reasonable work ethic. As with many young men this age, he had bonded with a couple of mates including Nathan Ah See.

2. On 15 March 2008 he was at a mate’s place and as I understand it, the local club drinking. He claims that he consumed more than twenty schooners over a twelve-hour period. That was not contested by the crown. He is a tall, heavy set young man. Even so, that quantity of alcohol he had consumed, he says, may explain why it was he participated in what was a group related activity of violence.

3. He received information that his friend Ah See was involved in a fight. It does not appear Riley sought any further information, simply that he was willing to stand by Ah See’s side and participate with others in attacking and assaulting Richard Hutching without knowing the rights or wrongs of that matter. Riley has pleaded guilty to that assault which occasioned actual bodily harm to Hutchings, the assault being done whilst he was in the company of Ah See and two other men. Today he is to be held accountable for his criminal conduct. He asked when I sentence him that I take into account a further offence of affray arising from the same incident. That matter was originally to be a s 166 criminal procedure matter. I have been asked to allow the prosecution to withdraw it from the summary jurisdiction so that it may be taken into account on the Form 1. That seems a sensible approach.

4. 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 the Wellington community. 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 Riley, that is subjective matters, because I am dealing both with an offence and with an offender.

5. The starting point for assessments requires me to make findings of fact from evidence before the court relating to the offence and to the offender. My fact-finding task has been circumscribed in that the parties have tendered an agreed set of facts to which I shall shortly return. It is sufficient at this point that I remind the court that a judge is not a party to an agreed set of facts. The tender of those facts does not relieve him or her from the fact finding responsibility implicit in being a judge. It simply limits the material from which facts may be found. To the extent if it be the case that the facts, as agreed, do not reflect the actual events that occurred, it must be remembered the court can only find facts from evidence placed before it.

6. The offender’s rehabilitation prospects need 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, whether special circumstances are to be found, Form 1 matters. I’ve just mentioned the backup charge brought from the Local Court which needs to be dismissed or withdrawn, and ultimately the term of imprisonment or other penalty that is to be imposed. None of that can be determined until the primary facts are determined.

7. What weight needs to be given to all of these matters against an imperative that all sentencing should have as its primary focus the protection of the community also needs 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.

8. The facts as I find them to be are principally sourced from those agreed facts earlier referred to and evidence given by the offender.

Agreed Facts

9. About 12.45am, that is early on Saturday morning 15 March 2008, Richard Hutchings and Leanne Shepherd left the Wellington Hotel in Swift Street Wellington. They were walking to Shepherd’s residence in Swift Street. Hutchings was slightly intoxicated. Near the intersection of Warne and Percy Streets a motor vehicle in which Nathan Ah See was a passenger drove past. He was hanging out the window and called out, “Don’t fuck her, she’s got AIDS” or words to that effect. Other passengers in the vehicle were yelling, “Richard, Richard”. The vehicle continued past and performed a U-turn coming back to where Hutchings and Shepherd were walking. It stopped near Hutchings who then recognised Ah See from a prior matter.

10. The occupants of the vehicle told the two of their intention to assault Hutchings. He responded, “I’m not going to fight you all at once”. Hutchings and Shepherd then commenced running to their residence at 44 Percy Street Wellington. Whilst running Hutchings telephoned his eighteen year old son, Kegan Smith, for help. He asked Shepherd to phone the police. He reached his front driveway to see Ah See and the other males chasing him.

11. Riley and Mitchell Moylan left the Grand Hotel on foot and started walking past Cameron’s Park. As they proceeded the vehicle that earlier had Ah See in it drove past and a passenger told the two that Ah See was going to be in a fight. The two entered the vehicle and were driven to the intersection of Warne and Percy Street, a position near 44 Percy Street where Hutchings was heading. Hutchings saw Ah See reach over the front fence and arm himself with a timber fence paling. Ah See then ran at Hutchings who managed to take the paling from him. Hutchings then chased Ah See, Riley and Moylan some distance, however, Ah See turned and came at Hutchings again. The two men began to grapple each other and Hutchings had Ah See in a headlock. Riley and Moylan entered the fray. Hutchings swung the paling which connected with Ah See and Moylan. Riley and Moylan then started punching Hutchings causing him to fall in his driveway.

12. Meanwhile one Kylie West was sleeping nearby. He was awoken and told Riley was in trouble and made his way to the scene by car. Hutchings, meanwhile, released Ah See and Ah See again armed himself with the fence paling.

13. About this time West arrived. Ah See began hitting Hutchings with a paling while he was still lying in his driveway. West, Riley and Moylan started to punch and kick Hutchings while he was on the ground. Hutchings sought to rise to his feet on a number of occasions, however, the trio continued punching and kicking him while Ah See continued to strike him with the wooden paling.

14. Kegan Smith arrived. He, as you will recall, was Hutchings’ son. He saw the four men assaulting his father, jumped the fence and immediately took on West. West and Smith began to struggle. As they began to struggle Ah See approached and hit Smith across the back of his head with a fence paling causing Smith to fall to the ground. One Josh Sutton known to both Smith and the offenders arrived and called for the assault on both Smith and Smith’s father to stop. Sutton helped Smith to his feet and led him to verandah where he helped him sit down. Hutchings was attempting to get to his feet. Riley kicked him causing him to fall again to the ground. West, Riley, Moylan started punching Hutchings again. Hutchings made his way to a location near the side verandah of the residence. At this location he was on the ground attempting to cover his head whilst still being punched and kicked. West, Riley and Moylan lifted a number of pot plants from the brick wall of a verandah and threw them, complete with plant and soil, against the side of the house causing the soil to spray onto the head of the victim.

15. Kylie West’s cousin who was at the scene persuaded West to leave. Ah See returned to Hutchings and said, “Take his shoes, take his shoes”. One of Hutchings’ shoes was taken by one of the offenders. Moylan and Riley left on foot. Others left in a motor vehicle that Ah See had arrived in. Police arrived shortly after and commenced their investigations.

16. Hutchings and his son were taken to hospital. Hutchings injuries included multiple large bruises and soft tissue swelling over the chest, back, abdomen, upper limbs, face, head and lower limbs. He had right eye sub conjunctival haemorrhage (traumatic rupture of small blood vessels in the eye), and left knee sprain. Kegan Smith was also injured.

17. Throughout the whole of the incident Miss Shepherd feared for her safety. More than a year later Riley was arrested and charged. Riley did not know Richard Hutchings. Riley acknowledged in court that he always regarded kicking a victim on the ground as a low act and is ashamed that he stooped to that level of aggression. I would have thought he could have also included three or four onto one was equally a low act but he did not do so.

18. Although he has not spoken to the man who was the victim, he has apologised to the victim’s son for his conduct. It would seem Nathan Ah See was a very troubled youth. The circumstances of his own arrest strongly suggests that. Sadly, he has taken his life, it is thought, motivated by his sense of rejection by important members of his family or extended family.

19. West has been sentenced by his Honour Sir Robert Woods in this court on 25 September last to an eighteen month term of imprisonment suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act. I will need to return to that matter later.

Objective Criminality

20. From the facts as he finds them to be a sentencing judge is required to assess, as I said, the objective criminality of an offence as an essential step in assessing the seriousness of this offender’s criminal conduct. That is done by comparing objectively the criminality exhibited in this case with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of this offence is evaluated. Quite clearly objective criminality has an important, if not the major, impact upon the overall sentencing outcome.

21. All persons are entitled to have the integrity of their physical person respected. Persons are entitled to walk the streets, even at night, without fear of violence to them. Those who defy or defile the physical integrity of a person and those who are about disrupting the peaceful enjoyment of walking at night are involved in anti-social conduct of a high order. It is the anti-social nature of their conduct that makes it criminal.

22. Richard Hutchings and Miss Shepherd were the target of verbal abuse and slander. That, in turn, rapidly deteriorated into an affray. An affray that saw them both injured. That affray was constituted by a melee in which an outnumbered Hutchings was given an unmerciful beating by four or more young thugs. He was denied the safety of his home. He was attacked with a weapon, namely a wooden fence paling. It is about this time, that is early in the physical altercation, that the offender joins into the melee.

23. His first physical intervention appears to have occurred when his friend Ah See is held in a restraining headlock. Riley punches Hutchings a number of times. Moylan assists. Hutchings falls to the ground. It would appear at the time the offenders are joined by West.

24. The height of the attack appears to occur while Hutchings, lying in the driveway, is attacked by Ah See with the paling while Riley and others are punching and kicking him on the ground. That was not only ruthless, it was doubly cowardly. Hutchings was outnumbered by attackers and he was on the ground. I am satisfied beyond reasonable doubt this offender kicked Hutchings a number of times. This included occasions when Hutchings sought to regain his feet.

25. The arrival of Hutchings’ son, Smith, brought some relief in that West and Ah See focussed on Smith. Hutchings again tried to regain his feet at that time but was kicked by the offender. Once on the ground Riley resumed punching him. Clearly the attack by the offender was sustained through at least three stages of the fracas. The attack was sufficiently unbridled, the outnumbering of both Hutchings and Smith, the speed with which Smith was set upon by the group, would cause any reasonable bystander to fear for his safety and did cause Miss Shepherd so to fear.

26. This offender’s motive for joining the brawl lacked any merit simply because he was not there in defence of his friend, but in support of an unlawful assault, the reason for which he had not a clue, and in circumstances where he must have seen that Hutchings was outnumbered by at least four to one.

27. The further measure of criminality is the impact of the injuries upon the victim. The injuries were widespread upon the victim’s body. His head had been a focus. Traumatic brain injury was a grave risk. Right eye sustained haemorrhage and all injuries would have needed time, perhaps more than a week, to abate.

28. The factors raising the level of criminality include the numbers. One accomplice makes an offence an offence in company. In this case there were at least three accomplices and possibly one or two more. The presence of more than one, and I cannot be satisfied beyond reasonable doubt there were more than three accomplices, is an aggravating feature. The joining in an attack when a weapon is used makes the criminality more serious. The gratuitous nature of this offender’s attack upon Hutchings, whom he did not know, and for a reason he did know, makes his criminality more serious. The offence was ongoing through three phases, two of which occurred whilst his victim was on the ground. The extent of and lingering discomfort caused by the injuries constitutes a high level of actual bodily harm. Factors that mitigate the seriousness of the offending include the impulsive and opportunistic joining of the brawl, the decision made to join the unlawful conduct was made when the offender’s level of intoxication was such as to compromise his reasoning and judgment skills. His mood was more disinherited than it would have been had he been sober.

29. Notwithstanding the mitigating features, the overall level of objective seriousness when all factors are considered is such as to call for a term of imprisonment.

Subjective Factors, Background, Relationships, Family Dynamics

30. The offender was twenty-one at the time of this offence. He has recently turned twenty-three. He is a single Aboriginal man raised and schooled in Wellington. He is the youngest of four children. He says his family do not have a good reputation in Wellington. His parents separated when he was four. He can use that absence of good reputation as an excuse to, in a sense, join or extent the bad reputation or he can use that bad reputation as a reason why he should do something about it to enhance it in the community.

31. He has a supportive relationship with his mother and sisters. His fathers and uncles have been in and out of prison. He was seeking to do better, he says. He resides with his mother and three sisters. There is intermittent contact between him and his father. Ah See was an important contact for him. There does not appear to be any romantic involvement. He must be grieving over Ah See’s demise.

Education, Training, Employment and Skills

32. As earlier remarked, he completed Year 12 in 2001. To his credit he completed Certificate III in Conservation and Land Management at TAFE in Wauchope. That certificate was completed in the course of a traineeship which may have been funded by a Commonwealth grant. But for whatever reason that traineeship ended with completion of the course. He was part of a team installing insulation. His build would disadvantage him working in a confined area of a roof cavity. He lasted a couple of months but is contemplating returning to this. He worked in 2009 for a contractor. That lasted but a couple of days before he injured his back. He was given two weeks off work and returned to find he was no longer wanted as a contractor.

33. He is looking for work through an employment agency as I understand it.
General Health

34. He is a well-built heavy set young man who, as far as one can tell, is physically well. I have referred to the back injury he sustained but have assumed that he is fully recovered from that when the two weeks was up. There does not appear to be anything in his physical health profile that should impede his rehabilitation.

Mental Health

35. There is no mental health profile before me. He is likely to be unsettled by Ah See’s decision to end his life. I have not ruled out some reactive depression to his circumstances. It is likely he has missed a positive adult male image in his life thus far, which may have made his relationship with Ah See the more important. There does not appear to be any mental health pathology though that would interfere with his capacity to rehabilitate.

Drugs and Alcohol

36. I am not prepared to accept he has been completely frank to the court about his drinking habits. He claims he was drinking on the day of the offence. He claims that his drinking on the day of the offence was unusual for him. There is a 2009 offence of property damage that I have little doubt occurred at a time when he was inebriated. He told his counsel he is drinking less now but I have no means of verifying that evidence.

37. He told Probation and Parole he began drinking at eighteen and is drinking on a daily basis and binge drinking on weekends. This is problem drinking and in my view he needs counselling. His evidence is he is willing to accept it. He will see I have relied upon that evidence when the final sentencing disposition is announced.

Character and Criminal History

38. He was a person of prior good character at the time of this offence. He has achieved much for a young Aboriginal man coming from a somewhat difficult background. His education level has reached secondary schooling level. He is still with his family and supported by them. He has a reasonable work ethic, although a low working skill base.

39. He is troubled by alcohol but so far as I am aware there are no drug issues.

40. Probation and Parole assessed him as suitable for a medium to low level of intervention by their service. While Probation and Parole did not feel he required supervision, my assessment of his rehabilitation issues puts his need for intervention as requiring greater assistance and some monitoring. If requested by Probation and Parole during the course of his sentence I will review that need.

Attitude to Offence

41. I am satisfied this offender has some insight into the cowardly conduct for which he stands accountable. It was so acknowledged in his evidence and by his early plea. I intend to give him the benefit of that early plea, not by discount but by the manner in which the term of imprisonment will be spent.

Setting the Sentence

42. I am conscious of a requirement by appellant courts that deterrence be a primal factor when finalising sentencing disposition. The sentence is also one in which rehabilitation and personal deterrence are hopefully balanced so that they may all work together, see R v Hearne (2007) 124 AcrR 457.

Parity

43. West was given an eighteen month suspended sentence. He was charged on indictment with two counts of assault occasion actual bodily harm. The targets of his assaults were both the father and the son. The affray was also taken into account on a Form 1.

44. While his role in respect of Hutchings was less than this offender’s, West's criminality included a second victim and the injuries sustained by that second victim. They included lacerations requiring a suturing to the side of Smith’s head and a grazing to his arm and abdomen. Those injuries may not have been as serious as the ones sustained by Hutchings, although I note one is a wound. Given the two victims, overall West’s criminality must be greater than this offender’s. Neither offender had a prior criminal history. This offender may have had a marginally more favourable subjective history to be taken into account. It will not be a case of strict parity but I will be conscious of West’s sentencing outcome. This offender’s sentence will bear an appropriate proportionality to it.

45. Nathan Riley would you just stand up for the moment please while I do the formal sentencing.

46. Nathan Riley you are convicted of assaulting Richard Hutchings thereby occasioning to him actual bodily harm while you were in company of Nathan Ah See, Kylie West and Mitchell Moylan. I am about to sentence you for that offence. I take into account the matter on the Form 1.

47. I set an overall sentence of twelve months imprisonment. I am going to suspend that sentence conditional upon you accepting supervision of Probation and Parole for a twelve month period with provision for Probation and Parole to seek withdrawal of supervision if satisfied of progress made.

48. You are to maintain full abstinence from alcohol for a period of six months and if you are choosing to resume drinking you may not do so before having discussed that course of conduct with Probation and Parole and discussing with them an appropriate and proper drinking strategy.

49. You are to submit to random breath tests as required by Probation and Parole during that twelve month period, or such shorter time as is allowed, for the purpose of determining whether you are in breach of the condition that you not drink alcohol for the first six months.

50. Any refusal of a publican, that is somebody running a hotel, to serve you because of a level of intoxication within the first six months of this bond will be considered a breach, will be deemed a breach of the bond.

51. A breach of the bond will bring you back before me. Your solicitor will tell you that a breach of a s 12 bond, that is the bond you have got, for a suspended sentence, gives a Judge very, very little discretion to do other than revoke the bond and impose the sentence. These are much tighter bonds than a s 9 bond. You breach a s 9 bond and no action is taken. With these bonds, because you are on conditional liberty for a period of twelve months, any breach of the good behaviour, or the terms of the bond, the drinking is a term of the bond, must result, unless there are special circumstances, in incarceration. Do you understand that?

OFFENDER: Yes your Honour.

HIS HONOUR:

52. Right. It is a condition of your bond that you accept counselling by Probation and Parole including alcohol and if thought appropriate other drug counselling.

That bond may be entered before the Registry. Until you enter the bond you are imprisoned so you must remain in the custody. I will order you to remain in the custody of your solicitor rather than send you downstairs while it all happens. All right. That would be the alternate. Thank you.