R v Rutera

[2007] NSWDC 240

CITATION:	R v Rutera [2007] NSWDC 240
HEARING DATE(S):	14/09/07 25/09/07
JUDGMENT DATE:	25 September 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Conlon SC DCJ
DECISION:	CONVICTED: Sentenced to non-parole period of 2 years with an additional 2 years imprisonment. Special Circumstances.
CATCHWORDS:	Maliciously inflict grevious bodily harm
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing procedure) Act 1999 (NSW)
CASES CITED:	R v Berg [2004] NSWCCA 330
PARTIES:	Crown Malcolm Junior Rutera (Accused)
FILE NUMBER(S):	07/41/0102
SOLICITORS:	Mr M Stollery (Crown) Mr G West (Accused)

JUDGMENT

1 HIS HONOUR: Malcolm Junior Rutera appears for sentence following his plea of guilty to a charge of maliciously inflicting grievous bodily harm. This offence is contrary to s 35 of the Crimes Act and carries a maximum penalty of seven years imprisonment. The offender has also requested that one further matter be taken into account on a Form 1 Schedule. The facts (contained in bundle of documents exhibit A) are as follows:

“During the evening of 25 November 2006 the victim Mark Eggleston joined approximately ten colleagues for Christmas drinks at the Brewery Bar situated on Crown Street, Wollongong. At about 12.15am that night the victim left the function along with his colleagues and walked west along Crown Street. During this time the victim has walked ahead of the main group to make a mobile telephone call. He was approximately ten metres in front of his colleagues in the vicinity of the Downtown Motel.

The victim finalised his phone call, looked downwards and placed his mobile phone into is pocket. As the victim was lifting his head he felt a sudden blow to his nose region. This caused sudden and extreme pain and he dropped to the ground. At this time there were a number of witnesses walking behind the victim and the offender. One of the witnesses is named Mark Stone and he was not known to either the offender or the victim.

Mr Stone states that he was walking eastbound on the northern side of Crown Street, Wollongong. He observed the offender walking with three or four other males. Mr Stone recalls the offender walking past the Glasshouse Tavern towards the Downtown Motel. He observed the offender approaching the victim from behind and saw the offender step to his left as he neared the victim and then king hit the victim from behind and to the side. He observed his fist connecting with the victim’s face.

Mr Stone stated that there was no prior conversation between the offender and the victim. He said ‘It was a totally unprovoked attack’. Mr Stone also said in his statement:

‘At the time of the assault I was approximately four to five metres to the right hand side of him. There were also a large number of people walking behind the victim. I walked through the group to confront the male offender but was stopped by another male within the group. This male said “What are you doing?”, I said “That was the biggest dog act”, the male said “I know”, then stepped backwards and allowed me to walk through the group’.

Mr Stone and a second person, a Mr Alchen then approached the offender with a view to apprehending him. The offender has walked away increasing his speed. The offender continued to walk east along Crown Street and at one point turning towards the witnesses said ‘Come on, come’. The offender has started to jog towards the Harp Hotel, both witnesses have confronted the offender within the driveway of the Harp Hotel. Police immediately arrived and approached the offender.

The offender started to punch out towards police, police were then forced to use capsicum spray in an effort to subdue and arrest him. When police with the assistance of security staff have attempted to restrain the offender on the ground he continued to struggle until handcuffs were applied. He was then placed in a police vehicle and conveyed to the Wollongong Police Station where he was charged.

As a result of this assault the victim has received a fractured mandible (jaw), which required immediate surgery at Westmead Hospital. During the surgery the doctors have inserted two titanium plates within the victim’s jaw. He received other injuries including two black eyes, a broken nose, cuts and abrasions. The victim was also suffering from dizziness and nerve damage to the bottom lip and jaw area.”

2 A victim impact statement was received pursuant to s 28 of the Crimes (Sentencing Procedure) Act (see tab 15 of exhibit A). That impact statement reads as follows:

“Following the actions of Mr Rutera on 26 November 2006 I sustained a broken nose, a broken jaw and suffered nerve damage to my chin and bottom lip. I was extremely fortunate that my nose broke straight and did not require surgery, however my jaw did. I spent the night of the 26 November in Wollongong Hospital where I underwent observation and a number of x-rays and CT scans. It was determined by the doctors I would require surgery on my jaw.

I was discharged from Wollongong Hospital the next day in order to return to Sydney to see my GP and get a referral to a jaw specialist. I saw the specialist on 28 November and was admitted immediately into Westmead Hospital for the purpose of surgery and to have my jaw attended to which had become infected.

I underwent surgery on 29 November 2006 where two titanium plates with associated screws were inserted into my jaw for the purpose of assisting the healing. These were due to be removed at some stage in July 2007.

I was discharged from hospital on 1 December 2006. I remained at home under supervision of my family and friends and had to undergo a liquid diet consisting of soups, ice-cream and jelly for a number of weeks. I was unable to partake in any traditional Christmas activities such as Christmas parties and family Christmas gatherings as I felt embarrassed, ashamed of myself and extreme nervousness around people for fear of being hit.

I once attempted some Christmas shopping with my sister, however had a panic attack and froze when confronted in a situation similar to that of 26 November when people were walking towards me. Once again, this made me extremely embarrassed and fragile.

I was unable to join my family for Christmas lunch or dinner as I was unable to eat anything solid in nature. This continued until the end of January which at that time I suffered pain from eating solids.

From the time I was in Westmead Hospital through to mid April I suffered constant nightmares of lying on the ground after being hit with people all around me screaming, and further nightmares of being knocked to the ground in similar situations. Since the actions of Mr Rutera I have consumed alcohol more frequently than I previously did in order to escape the reality and the pain of what took place. I also developed uncontrollable mood swings which resulted in losing my girlfriend of nine months. These mood swings have been overcome through counselling, as have my nightmares.

The actions of Mr Rutera have also affected my ability to successfully complete my work tasks as a solicitor as I find it extremely hard to act on behalf of people who have been charged for actions similar to those of Mr Rutera. Essentially the past six months since 26 November 2006 have been nothing short of a continuous stress upon myself and for those close to me.”

3 In considering that statement I have noted the words of caution on the proper use of victim impact statements by Wood CJ at CL in R v Berg [2004] NSW CCA 330 at 38 and 39. I am not satisfied that what is contained in the victim impact statement amounts to something more in the way of psychological injury and emotional harm suffered by the victim than that which the court has assumed or would assume to be the case. Accordingly I do not take this matter into account as an additional aggravating factor under s 21A(2)(g).

4 I regard this matter as objectively serious involving, as it did, a vicious and unprovoked attack on an unsuspecting citizen.

5 The offender was convicted at the Wollongong District Court on 1 February 2005 in respect of a charge of maliciously inflicting grievous bodily harm. He was sentenced to two years imprisonment with a non parole period of twelve months to date from 15 November 2003. That matter was mentioned in the course of submissions and acknowledged.

6 He was also on a bond at the time of this offence. On 20 September 2006 at Wollongong Local Court in respect of a charge of aggravated break and enter and commit serious indictable offence he was placed on a s 9 bond to be of good behaviour for a period of two years with supervision. His record is not one that would entitle him to any leniency.

SUBJECTIVE CIRCUMSTANCES

7 The offender is now twenty-one years of age. The pre-sentence report of Ms Kylie O’Neal, Probation and Parole Officer (dated 17 August 2007, exhibit B) contains the following background history:

“Mr Rutera is a single man with no dependents who currently resides by himself in rented accommodation in the Wollongong area. Mr Rutera migrated from the Cook Islands to Australia in 1995 with his mother and brother after the death of his first stepfather that was his younger brother’s biological father.

The offender reported that his biological father resided at the Cook Islands and he has not had contact for the past ten years. He reported that from the age of ten years he endured significant periods of time in juvenile detention centres. Service records indicate that when Mr Rutera was with his family unit he experienced times of domestic violence presumably reported to the Department of Community Services.

After arriving in Australia Mr Rutera’s mother formed a new relationship with the offender’s current stepfather. It is noted from service records that Mr Rutera resided with his mother and his stepfather and their alcohol abuse impacted upon his ability to refrain from drinking alcohol.”

Mr Rutera indicated to the probation officer that he had completed his school certificate at a school specifically for young people with learning behavioural issues. He claimed that his education in the community was significantly disrupted by periods of incarceration in juvenile justice centres. His last period of employment was in February 2005 to May 2005 in Victoria working for a fruit picking company.

ALCOHOL AND DRUG ISSUES

8 Mr Rutera claimed that he had commenced consuming alcohol when he was eight and cannabis when he was ten. Over time his alcohol and cannabis consumption had deteriorated and increased to daily use. He stated that often when heavily intoxicated he would become violent.

9 It has been confirmed that in April 2007 the offender accessed treatment to assist him in addressing his alcohol and cannabis use via a detoxification centre at a residential rehabilitation facility (this was Kadesh House, see exhibit 2). While Mr Rutera returned to the residential facility to participate in an after care program, he lacked the family and social support needed to maintain a drug and alcohol free lifestyle. Mr Rutera disclosed during the preparation of the probation report that he had relapsed back into alcohol use. He attributed this to his peers and his stepfather’s consumption of alcohol whilst in the company of the offender. The offender stated that he was unable to resist the temptation to consume alcohol.

10 He was assessed as unsuitable for a community service order and ineligible for a periodic detention order.

11 In an updated pre-sentence report Ms O’Neal ascertained that the offender had undertaken an assessment to enter into a drug and alcohol detoxification unit with a view to completing a long term residential rehabilitation program. It was confirmed that the offender was admitted to the Bridge Program, William Booth House, on 5 September 2007. His admission was to stage one of that program, completion of all stages would take approximately ten months. Ms O’Neal stated that this program would appear to meet the offender’s needs and would offer a longer period for the offender to address his current issues. Ms O’Neal also commented:

“The offender has made considerable effort during the adjournment period to reflect on the consequences of his behaviour. He appears to have gained some insight into his offending behaviour. It appears that Mr Rutera’s commitment to his drug and alcohol treatment is both court and self motivated.”

12 Confirmation of the offender’s entry into the program also came via a letter under the hand of Mr Michael Bartley, the program director (exhibit 1). The offender gave evidence before me in the sentence proceedings. He said that on the evening of the offence he had been sharing a case of VB with mates, he said he had about six or seven bottles, he was also drinking Jim Beam and taking ecstasy.

13 He said that in April 2007 he decided he needed help with his drinking and substance abuse and he went to Kadesh House. He said he completed the eight week program and in fact stayed on for another two weeks as he felt that he was not ready to leave. Once he left the program he said he started attending the after care program at Kadesh House on Thursday afternoons for group counselling. His stepfather then found him accommodation allowing the offender to take over his lease. The offender said he thought he had everything under control and could manage things by himself. However, he said that after a few weeks, boredom and loneliness set in and he got back onto the alcohol.

14 On 29 August he went to Foster House which led to his entry into the Bridge Program. He said through this program he hoped to become a good citizen.

15 Mr West, for the offender, acknowledged that the facts would normally call for a full time sentence, however it was submitted that the offender now understands his problem and has done something about it. He got himself into Kadesh House and stayed for longer at his own instigation. Mr West also submitted that he has now placed himself into a longer rehabilitation program, the Bridge Program. I was asked to consider a lengthy remand in order that he might complete the Bridge Program. However, Mr West also acknowledged that in considering a section 11 remand the court would have to be aware of the possibility of providing false expectations to the offender.

16 The most impressive part of the subjective material presented on behalf of the offender is the way in which he has assumed some responsibility for his own rehabilitation. I have taken into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure)Act. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence, but sometimes they point in different directions. Deterrence both specific and general are significant factors in respect to the present offence. My earlier description of it as a vicious and unprovoked attack on an unsuspecting citizen would clearly lead to an expectation on the part of the community that such crimes will be punished and punished severely.

17 I have also taken into account s 5 of the Crimes (Sentencing Procedure) Act. Having considered all possible alternatives and having balanced the objective seriousness of the offence against the subjective material I am satisfied that no penalty other than imprisonment is appropriate.

18 I find special circumstances being the offender’s youth and his good prospects of rehabilitation that will be enhanced by a longer period of supervision. I consider this sufficient reason to vary the statutory ratio. His guilty plea was entered in the Local Court and accordingly it is a plea at the earliest opportunity. I have assessed the utilitarian benefit of that plea and I propose to reflect it by a discount of about twenty-five per cent.

19 Mr Rutera, would you please stand. You are convicted of this offence and I sentence you to a non parole period of two years to date from today, 25 September 2007 and to expire on 24 September 2009. I sentence you to an additional term of two years to expire on 24 September 2011. I have taken into account in passing this sentence the one matter on the Form 1.

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