R v Royle

[2023] NSWDC 638

District Court

New South Wales

Medium Neutral Citation:

R v Royle [2023] NSWDC 638

Hearing dates:

17 February 2023

Date of orders:

23 February 2023

Decision date:

23 February 2023

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [Orders]

Catchwords:

CRIME — Violent offences — Wound with intent to cause grievous bodily harm

CRIME — Violent offences — Assault occasioning actual bodily harm

Legislation Cited:

Crimes Act 1900 (NSW)

Crime (Sentencing Procedure) Act.1999 (NSW)

Cases Cited:

Attorney General’s Application under s37 reported at (2002) 56 NSWLR 146.

AM v R [2012] NSWCCA 203

DPP v De la Rosa [2010] NSWCCA 194

Muggleton v R [2015] NSWCCA 94

Vaiusu v R [2017] NSWCCA 71

Category:

Sentence

Parties:

Rex (The Crown)
Eli Royle (The Offender)

Representation:

Enderwick for the Director of the Office of Public Prosecutions
Love for the offender

File Number(s):

2022/00025285

Publication restriction:

NA

REASONS ON SENTENCE

Introduction

1. Eli Royle appears for sentence for the offence of wounding with intent to cause grievous bodily harm in contravention of section 33(1)(a) of the Crimes Act. The offence has a maximum sentence of 25 years imprisonment and there is a standard non-parole period of 7 years. I take both the maximum sentence and standard non-parole period into account as legislative guideposts, indicating the legislature’s view of the seriousness of the offence so as to assist in arriving at the appropriate sentence.

2. In arriving at that sentence there is to be taken into account a further matter by way of the Form 1 procedure. That matter is an offence of assault occasioning actual bodily harm in contravention of section 59 of the Crimes Act and for which the maximum sentence is five years. In respect of that offence I take into account the maximum sentence also as a legislative guideposts but only so as to be able to give proper effect to the Form 1 procedure. In regards to the Form 1 procedure it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offenses. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 reported at (2002) 56 NSWLR 146.

3. The offender was not on conditional liberty at the time of the offending. He has been in custody since his arrest on 28 January 2022 and the sentence will date from that date.

FACTS AND OBJECTIVE SERIOUSNESS

4. The offender and the victim were known to each other in that prior to the offending, specifically on or about 9 April 2021 the victim broke up a fight between the offender and another person. Other than that the victim had seen the offender on several occasions. It is not suggested they were friends or acquainted otherwise.

5. The offending occurred on New Year’s Eve 2021, or more precisely sometime between 1am and 2am on New Years Day 2022. The victim was initially alone at Woolgoolga to watch fireworks and met people there. A group of people offered him a drink and they watched the fireworks together. They had not previously met.

6. A group including the Offender came to be at the area near the victim. The offender approached the group of the victim. Some of that group knew the offender.

7. A member of the victim group observed the offender walk around a table and smash a glass near it. Some people said words to the effect of “what are you doing we are walking around here”. The offender denied smashing anything and others said they saw him do it and the victim said “we all saw you how dare you deny it”.

8. The offender became aggressive and wanted to fight the victim. The victim stood up and a third person stood between the offender and the victim and told the offender in expletives to go away and the victim sat down.

9. The offender walked up to a barbecue and took a beer bottle and smashed it whilst holding it by the neck; the broken end was jagged. The victim was standing with his back towards the offender. Without warning the offender walked over to the victim and without hesitation smashed the broken end of the glass bottle into his face with a right hook motion. The victim did not see this but thought he had been punched and felt a shooting pain in his cheek. The sound of smashing glass was heard when the offender contacted the victim. The victim punched the offender several times and the offender was hitting him back including on the head causing a cut.

10. The victim ended up on top of the offender and others managed to separate them and the offender ran away.

11. Some people then realised the victim had been stabbed and said so. There was a curved cut on the left side of the victim’s face with skin hanging off which was bleeding. One observer of the victims face was of the view the cut was so deep it looked as though he could see the bone.

12. About five minutes later when waiting for the ambulance the offender returned. The victim felt a sharp pain to his back and felt he had been slashed and turned around to see the offender running away. The victim ran up to a man who had started after the offender, and the victim said that he thought he was dying and was caught by that person as he was falling.

13. By the time the ambulance arrived 10 minutes later the victim was alert, speaking in full sentences and with no obvious airway involvement. There was a deep skin flap wound to the left mandible area approximately 6 cm by 6 cm in a V shape. The left side of his face was swollen. There was a left side thoracic region superficial laceration about 8 to 10 cm long which I infer was the result of the “slash” to the back.

The injuries

14. When examined at hospital in Coffs Harbour the victim could put his tongue through his cheek and he was taken to Newcastle for surgery.

15. The wound was closed under general anaesthesia.

16. Physical examination revealed a deep laceration to the left pre-auricular area with weakness of the left buccal branch of the facial nerve. The provisional diagnosis was of facial laceration with damage of that nerve.

17. The victim was discharged on 3 January so two days later. The victim was still dislodging glass from his mouth a few days later. He had swelling to the cheek which required draining and experiences even now ongoing shooting pain that comes and goes.

18. The injury to the cheek has resulted in sustained nerve damage and the left side of his lip and his cheek area underneath his eye is numb. There will be follow-up medical treatment and there is a prospect the nerves will not heal. He has issues sleeping since this incident and difficulty eating because he cannot open his jaw properly.

19. When questioned by police on 4 January the accused said it never happened and when the victim was named said he had never heard of him.

20. The offender said he had not seen the victim since 6 months ago outside a pizza shop when the victim tried to assault him which of course is different to the agreed fact of the victim breaking up an incident involving the offender.

21. He gave a story quite different to the facts as to what he was doing on New Year’s Eve though to the extent that he says he “got pissed” and spent the night with friends so that his conduct might not be remembered there must be some prospect of it not being entirely inaccurate given his alcohol consumption. He did however expressly say he was not at the reserve, the scene of the offending, at 1:30 AM. He was later arrested on 28 January 2022.

OBJECTIVE SERIOUSNESS

22. AM v R [2012] NSWCCA 203 gave consideration to factors relevant to assessing the objective seriousness of this offence. That case also noted the breadth of conduct and consequences that may be captured by the offence. It is important not to be disproportionately influenced by the nature of the conduct and the seriousness of the injury given that elements of the offence are the intention to cause grievous bodily harm and that grievous bodily harm means really serious bodily harm. At the same time, it is the extent of the injuries which are of significance in assessing objective gravity but that is not the sole consideration. Reconciling that comment with the proceeding comment really goes to show that whilst the extent of the injury is of significance it is likely that the injury will be a significant one so that the starting point to satisfy the element of the offence needs to be borne in mind.

23. In this case those comments are apt; the evidence is that the victim could put his tongue through his cheek. On the other hand whilst there is ongoing sequelae of nerve damage, the current condition of the victim is not as well evidenced as might be hoped; the Court was informed at the hearing that there had been difficulties gaining an update from the victim.

24. The initial infliction of the injury and the impact on the victim in my view is horrific. The surgery that was required in my view is clearly relevant to take into account but was not medical intervention of the most severe kind and he was discharged from hospital just two days after the incident. The most recent prognosis was provided as at 3 January 2022 where it was said the injuries were serious and the prognosis was considered to be intermediate with anticipated long-term disability. That disability is the sustained nerve damage and numbness of his lip and under his cheek. Paragraph 34 of the agreed facts indicates that there is to be follow-up appointments to determine the future prognosis and that the numbness may heal in time but the nerves may not. Bearing in mind the injuries as set out above and the vagueness as to the prognosis results in this consideration of objective seriousness restricting the assessment that may otherwise have been made had the prognosis been more serious.

25. Based on the facts this was not an offence of considerable planning though it cannot be said to have been impulsive given the fact of the offender leaving the scene and then returning to it to commit the principal offence. This factor is also to be considered bearing in mind the element of intention. The seriousness of the matter is added to by the fact that the offender did not voluntarily end the attack though that must be considered in view of the fact that he was, based on the facts, losing the fight that ensued with the victim.

26. The attack was unprovoked. There seems to be some suggestion in the material for the offender that it was justified by reason of their encounter months earlier outside the pizza shop. To the extent that submission is made I reject it. This was an unprovoked callous attack upon a person hardly known to the offender from behind.

27. For these reasons I adopt the Crown’s assessment of the objective seriousness of the offending which in oral submissions was said to be into the mid range but below that midpoint referred to in section 54A of the Crime (Sentencing Procedure) Act.

28. There was no victim impact statement.

29. As to the Form 1 matter that in my view is a significant act of assault occasioning actual bodily harm. The injury was described as a cut which was still bleeding when the victim reached the hospital. It has the same characteristics of being from behind and unprovoked as the earlier offending. It is not known what was used to effect the cut. I would consider this to be into the low to mid range of assault occasioning actual bodily harm. In line with the Form 1 procedure I will take it into account in sentencing for the principal offence. The two events were not separated by a large period of time and they should be considered as a course of conduct but at the same time they are clearly separate events and the cowardly act committed in the first place is only compounded by a second cowardly act totally unprovoked.

Subjective case

30. The offender relied upon a report of Kris North psychologist dated 17 November 2022. The history given was of a stable childhood though his parents separated when he was 2. His mother with whom he lived provided a pro social home environment though there was a significant upset in 2020 when the offender discovered that his stepfather had molested his younger half sister when they were young.

31. There was a history of mental health issues within the family with a genetic disposition towards psychotic disorders. There was also said to be a family history of substance use issues. The offender began smoking cannabis at age 13 and misbehaved with school leading to him leaving at the end of Year 8 and with attempts at distance education ending in Year 9 when he was 16. His employment history seems somewhat short for a person who left school at 16; the report notes employment in 2021 by which time he was himself 21 so there is five years of possible work unaccounted for. The offender lost his job in 2021 due to alcohol use and had work on a blueberry farms thereafter.

32. As to substance use it was cannabis at 13 until 18 and then methamphetamine from 16 to 18 and OxyContin from 17 to 18 with problematic use of alcohol from age 18 which he described as his primary drug of concern since that time. He also used other drugs such as LSD, ecstasy and symptoms of psychosis since age 21.

33. At 21 he was sober for a year from alcohol but then relapsed in an escalating way stating he consumed between 30 and 40 standard drinks per day at the time of the offending.

34. Diagnoses of Substance Induced Psychotic Disorder and Alcohol Use Disorder, moderate, were made.

35. The report which was not challenged refers to a decline in his mental health functioning in December 2021 which of course is the month of the offending. He said he saw a green guy, in other words was hallucinating and was having disturbed thoughts which he tried to suppress by drinking alcohol. Leading up to the offence he was in unstable accommodation and unemployed and drinking more alcohol. The view is offered that it was these life stresses that contributed to symptoms of psychosis leading up to the offence. The report however seems to stop short of suggesting that there was some psychotic episode occurring at the time of the offending but rather the best that could be said in terms of mitigating factors is that in the lead up to the offending there were psychotic symptoms. In terms of the occasion of the offending the report notes that the offender had consumed two bottles of wine, 10 premix spirits, a number of beers and shots of vodka and described himself as heavily intoxicated.

36. Presently he is suffering from depression during his period on remand. He has sought treatment in custody and is medicated with mirtazapine and is seeing a psychologist. He has an intention to continue that treatment. Ms North carried out various testing which placed the offender in the mild range for anxiety and the minimal range for depressive symptoms. A violence risk assessment was also carried out which arrived at a low/moderate risk for future violence and a low risk for imminent violence.

37. That assessment identifies risk factors and potential protective factors. Given the history of this offender, that is his young age, his violent offending prior to the offending in question, and his involvement in alcohol in custody noted on the custody record, I have reservations about this assessment. Primarily this is because of the potential protective factors including social support yet he was in non-stable accommodation when he was in the community, and the asserted insight is not supported by his conduct in custody where he has been involved with alcohol. Suffice to say I would place his risk of reoffending as being a very guarded assessment and no less than moderate and very dependent on remaining abstinent from alcohol and drugs. The offender expressed remorse to the psychologist.

38. There was also a sentencing assessment report in evidence dated 29 September 2022. It notes his supportive family and that he intends to live with his mother and sister upon release. He had been on the disability support pension for several years but was also working at the time of the offenses which he intends to resume on release.

39. The report states he appeared to accept responsibility for the harm inflicted on the victim but also tended to justify his behaviour asserting he had attempted to diffuse the situation but the victim continued to be aggressive towards him. On the agreed facts that shows a distinct lack of insight. He says he is motivated for change and attributed his behaviour to his substance abuse. He told the report writer that in addition to the alcohol mentioned by the psychologist he had taken cocaine on the day of the offending and the aggressive behaviour he blamed on the combination of substances he had taken.

40. He said but for the alcohol he would not have committed the offenses and wishes to address the issue of chronic substance abuse.

41. He appreciated the harm that he had caused, was willing to undertake intervention and the report notes that has occurred in the past with him engaging well though the report notes the relapse into substance use. He says he is motivated by his custodial experience.

42. His prior response to supervision on an earlier community corrections order was generally positive but with the substance abuse being problematic in that time. This report assesses him as a medium to high risk of reoffending which I consider to be more in keeping with the facts but I do note that the test applied was the static test.

43. There was a testimonial from the offender’s grandmother who speaks well of her grandson. There was also a letter written to the court by the offender acknowledging the grievous mistake he has made and expressing remorse and shame. He talks of reflecting whilst in custody and wants to advance with a healthy and sober lifestyle. He says his family helped him and that the jail is a scary place. He expresses his sincere sorrow.

44. There was also a letter, Exhibit 4 from Hannah Wheeler who was in a relationship with the offender at the time of the offending. She speaks of occasions of where the offender has been helpful to her and clearly considers he is capable of being a responsible and contributing member of the community. Finally there was a letter from a Ms Schumaker who recounts occasions where the offender has come to her aid.

45. The offender’s criminal history shows that he was imprisoned but it was suspended in 2017 for affray and at the same time received bonds for assault police officer and resist officer and for being armed with intent to commit an indictable offence. The bonds required the offender to attend drug or alcohol rehabilitation. The offender and also received a 7 month suspended sentence for wielding a knife. That was one month after his 18th birthday.

46. In 2019 he was convicted of larceny and received a CCO. It was 2 ½ years after that that this offending occurred.

47. Whilst this is not an extensive criminal record it does in my view given his age result in far less leniency being extended to him than with a clear record but a combination of his youth and in effect two occasions of offending in my view does not deny him leniency altogether.

48. The offender pleaded guilty at a time that allows a 25% discount on his sentence.

Consideration

49. The seriousness of this offending is indicated by its maximum sentence and standard non parole period, as well as the fact that the intention to cause grievous bodily harm is the mental element for murder, observations made in AM referred to above.

50. In my view there are no aggravating features of the type set out in section 21A.

51. Ms North offers the unsurprising opinion that the offender’s reasoning was likely impaired at the time of the offence as a result of both his psychosis and level of intoxication. By section 21A(5AA) self-induced intoxication at the time of the offence is not to be taken into account as a mitigating factor. A large part of the submissions for the offender was to focus on his psychotic symptoms leading up to the offending and to place reliance upon the case of De La Rosa at [177]. In this case there needs to be a recognition of the fact that his condition at the time of the offending was one of self induced intoxication and in the period leading up to the offending was suffering from some psychotic symptoms. Yet the evidence does not disclose whether he was hallucinating at the time of the offending and with respect it seems unlikely that he was given that he just happened to attack a person that he clearly had harboured ill feeling towards. Nevertheless I consider there is an element of mental ill-health present at the time of the offending though I am not satisfied that it was causative of the offending given that no psychotic symptom is identified at that time. In general terms it might be said to have impacted upon his reasoning. The result is that I give some weight to his mental health impacting upon his moral culpability but only to a minor extent. It also has the consequence that his time in custody may be more onerous. The matter self-evidently shows him to be a person who poses a risk to the community and his alcohol and mental health issues fall within that part of De La Rosa identifying that there might be a heightened need for the protection of the community. That is a matter that I must take and do take into account. In doing so I do take into account the risk assessment of the psychologist but on the basis that I have referred to above namely that I consider it to be no less than moderate.

49. As to other mitigating factors I note that the issue of planning has been considered above. There is a criminal history of violent offending however in my view not sufficient size to aggravate the matter.

50. I found that the offender has made sincere expressions of remorse.

51. The prospects of rehabilitation are difficult to assess. In my view it is almost certain that the offender is truly shaken by the events that have happened and the consequences of that which has seen him in custody for already more than one year. That would be a very confronting experience and would on the facts of this case provide some motivation for rehabilitation. Yet the updated custody record shows an infraction for seeking to manufacture alcohol in custody. In my view there needs to be care taken not to place too much weight on that; just what the circumstances were of that is not known but simply being involved with alcohol in custody in this way tends to dilute to some degree the good intentions that he otherwise expresses. I am prepared to assess the prospects of rehabilitation as moderate and clearly wholly dependent on him engaging with intervention.

52. The Crown provided a useful table of comparable cases. Comparable cases need to be referred to with a great deal of caution due to the wide range of facts and undoubted differences to the matter presently being considered. The Crown referred the case of Muggleton [2015] NSWCCA 94 which was the case of a smashed schooner glass put forcibly into the face of a male stranger in what was an unprovoked attack. Some similarities can be seen to the present matter though there are distinctions as that offender had PTSD and did not have the full discount. The sentence there was six years and six months with a non-parole period of four years with a 15% discount to arrive at that sentence. In the case of Vaiusu [2017] NSWCCA 71 a sentence of two years and three months with a non-parole period of one year and two months was imposed after applying the 25% discount. In that case the offender had mistakenly thought the victim had assaulted her sister and she stabbed the victim in the neck three times with glass from a broken beer bottle.

53. The purposes of sentencing provided for by section 3A are as follows:

1. To ensure the offender is adequately punished

2. To prevent crime by deterring the offender and others from committing similar offenses

3. To protect the community from the offender

4. To promote the rehabilitation of the offender

5. To make the offender accountable for his actions

6. To denounce the conduct of the offender

7. To recognise the harm done to the victim of the crime and the community.

57. There is no argument against the finding that there is no other term more appropriate than a term of imprisonment. The ultimate argument for the offender was that there should be a term of imprisonment with a non-parole period which would expire either now or very soon. That submission is based on the psychological evidence, an assertion which has support in the sentencing assessment report that the criminal history is modest if that, the expressions of remorse and preparedness for intervention and that he has performed well in custody save for the recent infringement concerning alcohol.

58. The Crown makes the point with which I agree that this is an example of mindless alcohol fuelled violence, even allowing for the psychological background discussed above, in a public place against a person hardly known to the offender and done in the most cowardly way.

59. Taking the parties submissions into account and my various findings above there is clearly in my view a need for deterrence albeit somewhat tempered by the psychological health of the offender, and in my view a need for specific deterrence and also to make the offender accountable for his actions. There is the need to denounce this conduct. The harm suffered by the victim should be recognised and the need to protect the community looms large. It need also be remembered that this offender is still a young man and in the lead up to the offending appears to have had employment to a greater extent than any earlier time and his rehabilitation should be promoted.

60. In respect of that last purpose of promoting rehabilitation in my view that is best served in this case by making a finding of special circumstances. This is this offender’s first time in custody, he has a serious substance abuse condition so that there will be a need for an extended period of supervision upon his release, and his age and inexperience in custody together with the more onerous conditions prevailing in custody in Covid times justify a finding of special circumstances.

61. In my view the separate attack founding the Form 1 charge of assault occasioning needs to add to the weight of the sentence but whilst also ensuring that it remains proportionate to the principal offence. The offender is also entitled to the 25% discount.

62. The conclusion I reach is that prior to the discount there should be a term of imprisonment of 6 years which after the discount becomes 4 ½ years. Taking into account my allowance of special circumstances there should be a non-parole period of 2 ½ years. In my view any lesser period than that would in all the circumstances of this case not properly reflect the objective seriousness of this offending.

Orders

63. The offender is convicted of the offence of wounding with intent to cause grievous bodily harm, in breach of s33(1) of the Crimes Act.

64. Taking into account the matter on the Form 1, and after applying the 25% discount, the offender is sentenced to a term of imprisonment to date from 28 January 2022 with a non parole period of 2 ½ years expiring on 27 July 2024 and with a balance of term of 2 years expiring on 27 July 2026.

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Decision last updated: 07 June 2024