R v Sam Rakoroi

[2007] NSWDC 294

CITATION:	R v Sam Rakoroi [2007] NSWDC 294
JUDGMENT DATE:	9 November 2007
EX TEMPORE JUDGMENT DATE:	18 June 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Sentenced to NPP 2 years & 4 months. Balance of term 1 year, 10 months and 15 days
CATCHWORDS:	Criminal Law - Sentence - Maliciously Inflict GBH with intent to inflict GBH - vicious attack - well affected by alcohol- mistaken identification - striking from behind - striking whilst on ground - kicking - delay - failure to answer bail - failure to execute arresst warrant.
CASES CITED:	R v Gladue (1999) 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 321 R v Rushy (1977) NSWLR 597 R v Mitchell [2001] NSWCCA 296 R v Hayes [1984] 1 NSWLR 740
PARTIES:	Regina Sam Rakoroi
FILE NUMBER(S):	07/21/1112
SOLICITORS:	CROWN: MR BOROSH DEFENCE; MR W SANDILANDS

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SENTENCE

1 His Honour: In 2001 Sam Rakoroi worked as a nurse. That is he was engaged in some capacity in his occupation of administering to those with illness, or in his case frailty, in returning to or maintaining their health. Against that background his ferocious and disinhibited attack upon Mark Owen Richardson at about 5.30am on 1 September 2001 is difficult to comprehend.

2 Today Sam Rakoroi is to be held accountable for his criminal conduct. He commenced that process by his plea of guilty to this charge that he maliciously inflicted grievous bodily harm upon Mark Owen Richardson with intent thereby to do grievous bodily harm to him. 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 Gladue v Regina [1999] 1 SCR 688 [80].

3 My initial task requires an assessment of the objective criminality of the offence before the Court. I also need to have regard to matters personal to the offender subjective matters. The starting point for such assessment requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender. The offender’s rehabilitation prospects will have 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, whether this offence attracts a standard non-parole period and of course the ultimate length of imprisonment or other penalty to be imposed. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as it’s primary focus the protection of the community will also need to be determined. See R v Cuthbert [1967] 2 NSWR 329, R v Rushy [1977] NSWLR 597, R v Hayes [1984] 1 NSWLR 740.

4 Sam Rakoroi is a Fijian national. In August 2001 he was living with his father. On the night of 31 August 2001, before arriving at the Great Western Bar in Penrith he had been consuming kava with his father. For how long and in what quantities the kava was consumed is, at this distance from the event, unknown. Sometime about 11.30pm he arrived at the Great Western Bar, Penrith. This establishment, it would seem, is well populated on a Friday night providing music, dancing and alcohol. The accused was seen dancing at some time after his arrival.

5 About 4.30am Mark Richardson was walking towards the dance floor. For a moment his passage was blocked. At that time he noticed the offender sitting with his back to the bar, blood coming from his nose. Richardson said, “Are you all right mate, you’re bleeding?” There was no response from the offender. But for this interchange Richardson had never seen the offender; had never had any dealings with him. There is nothing to suggest the offender could have any legitimate cause of grievance towards Richardson.

6 In the five hours to this point the offender had been drinking; the facts tendered by the Crown allege, four to five schooners of VB beer. The offender says, in his evidence, it was more. I accept that it was more. Mark Richardson had arrived at the Great Western Bar at about 1.30am. Earlier that night he had been at the Winmalee Tavern. He says he consumed about four schooners spread throughout the night.

7 About 5.30am Mark Richardson decided to leave. He had become separated from his wife and spent some moments looking for her in the Great Western Bar. Thinking she may be outside, he made his way to the exit. There was a short queue at the doorway and he walked out into the street in that queue. The offender was somewhere behind Mark Richardson, following him and others out the door. He apparently spotted Richardson and started shouting at him. Others in Richardson’s group were also with him [Richardson]. Whatever the offender said he attracted Richardon’s attention.

8 By this time Richardson had started to cross the road, the offender stripped off his shirt. Beneath the shirt was a white singlet. As Richardson turned towards the shouting, the offender struck him on the left side of his face with a closed fist. It was a king hit. Richardson fell to the ground. The offender kicked Richardson, more than once, those kicks landed in the region of the upper body and face. Richardson attempted to get to his feet, it seems he may have got to his feet, although whether standing upright is moot. Some members of the crowd meanwhile were trying to restrain the offender. Sadly they failed. He brushed them aside.

9 Richardson had moved about two metres. The offender rushed at him; punched him to the back of the head. Again the victim fell to the ground, this time on the roadway near or perhaps on the gutter. Again the offender kicked Richardson more than once. Again those kicks landed on Richardson’s body. I am satisfied, beyond reasonable doubt, at least one of those kicks connected with Richardson’s head.

10 The incident ceased when a person, Darren Wilson and other persons physically restrained the offender, pulling him away from the now seriously injured Richardson. Once away from Richardson the offender commenced walking towards High Street, putting on his shirt. In the last moments of this disinhibited onslaught Mark Richardson was lying chest down on the eastern side, his head barely raised from the ground.

11 Keron Smithard crouched next to his head, to shield it from further blows. He said to the injured man “Mark it’s me Chubo”. Richardson responded by uttering his rescuer’s name. During this exchange Smithard was kicked to his rib area and to his upper left shoulder, that is to say at least two kicks. Smithard says he was “pretty sure there was more than one person” involved in the kicking. On the evidence before me Smithard is the only witness claiming more than one participant. I am satisfied there was only the one assailant, namely this offender.

12 The offender was described by one of the eyewitnesses as being five foot ten to six foot, having short dark hair, which was a bit curly, aged about twenty-eight, solid, stocky build. There was a discrepancy between that description and Richardson’s who thought the man with the bleeding nose that he spoke to was bald. The offender presented in Court with a close shaven head. I am satisfied identification could have been an issue in a contested trial.

13 Dr Alfred J Coren examined Mr Richardson who had, by this time, been taken to the Nepean Hospital. He says that the clinical examination revealed Richardson to be a healthy male of thirty-six years of age, who presented with right peri-orbital ecchymosis and haematoma of the eyelids extending to involve the right cheek. There was also a degree of left peri-orbital haematoma present. So that the offender might understand, haematoma means blood, bleeding. There was no disturbed vision. A tender swelling was present overlaying the left point of his chin. Inter-oral examination revealed gross malocclusion with compound displaced fracture involving the left parasymphysis of the mandible involving the central and lateral incisor teeth on that side.

14 Radiological examination was performed. It revealed that the orbitsan mandible had a small blow-out fracture of the right orbital floor. There was also displaced fracture involving the left parasymphysis of the mandible involving the central and lateral incisor teeth in the line of the fracture. In addition there was a lateral displaced fracture involving the right mandibular condyle. It was necessary to operate on him.

15 For the record the operation involved open reduction and internal fixation of the compound displaced fracture involving the left parasymphysis, involving the central and lateral incisor teeth in the line of the fracture. Application of arch bars to the upper and lower teeth, degloved chin, exposed fracture site of the left parasymphysis of the mandible, reduction into anatomical alignment and immobilise with mini-plate fixation. Osteosynthesis, closed reduction of the fracture right mandibular condyle.

16 It is said that Richardson made a very satisfactory post operative recovery. On the second post operative day his teeth were placed into maxillary fixation with elastic bands which was maintained for the next ten day period. Again so that that may be more clearly understood by the offender, I think it is best to use Mr Richardson’s explanation.

“To the best of my knowledge my injuries are as follows. A fractured jaw in three places. Both eye sockets fractured. Other cuts and bruises.”

17 The photographs which clearly were taken shortly after the event and as best I can glean, while he was still in hospital show swelling of the lower face, particularly, it seems to me, around the jaw line and neck; both eye sockets bruised to the extent of being bruised in the lower regions of the sockets; the upper region of the socket above the eyelid, the upper eyelid; grazing to the forehead, the right ear and jaw line below the right ear, to the bridge of the nose, to the upper right temple area and down the face. There is a significant laceration to the left eyebrow, which although it does not appear stitched in the photographs may well have required as many as three. The mouth just shows that both teeth, gums and canals are displaced. Displaced meaning out of alignment.

18. The offender had not travelled far before police spoke to him. That conversation would seem to have been some time shortly after 5.45am but possibly before 6 o’clock. The offender had spoken to at least one other person who knew him, before speaking to the police. Senior Constable Adam Gross said “What happened here tonight?” The offender replied “I got hit by someone and I hit this bloke, but it’s not the same one who hit me. I think he’s gone.”

OBJECTIVE CRIMINALITY

19 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 the offender, that is done by comparing objectively the criminality exhibited in the instant case, that is the case I am dealing with, with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of this offence can be evaluated. The objective criminality has an important impact in the overall sentencing outcome.

20 I just pause there to go back to a review of the injuries sustained by the victim. To note that the facts assert and it does not appear to be disputed that the victim sustained ongoing pain and problems with speech. He suffers from arthritic susceptibility due to the injuries sustained.

21 I come back to the objective criminality. The criminality of this offence centres upon the intended violence administered to the victim for the purpose of causing him really serious harm. Each person in the community is entitled to the integrity and well being of his body free from vicious attacks, in fact free from any unlawful attack by others.

22 This offence is one of the most serious offences in the criminal calendar, it carries a maximum penalty of twenty-five years. It is likely most offences captured by s 33 of the Crimes Act will reflect serious criminality by virtue of the essential elements constituting the offence. Even so there is a wide range of offending conduct that will satisfy the essential elements. I propose to examine the objective criminality of this offence under the following headings.

• level of malice displayed when inflicting grievous bodily harm.
• nature and level of grievous bodily harm inflicted.
• time of formulation of intent and its motivation.
• the nature of the grievous bodily harm intended.
• the nature of the grievous bodily harm actually inflicted.

23 This offender’s malice was displayed primarily in the ferocity of his attack upon Mark Richardson. The event commenced with a king hit in circumstances where the victim had virtually no warning he was about to be attacked. I have found that he actually turned towards his attacker, but he must have wondered what was happening. When Richardson regained his feet and sought to flee there was a second king hit, on this occasion it was from behind. On both occasions when on the ground Mark Richardson was kicked. Those kicks were inflicted towards the upper body, head and face. While I cannot be satisfied a kick was responsible for each fracture of the jaw, I am satisfied more than one forceful blow was needed to cause those fractures and that the only alternative source of a fracture was the second occasion when Mark Richardson fell.

24 It would follow from that that while I cannot rule out a fracture may have occurred when the victim fell towards the gutter that fall could not have accounted for all three fractures. This issue may be academic, Mark Richardson did not have a broken jaw when he left the club. The offender’s attacked upon him was both disinhibited and unbridled. As a consequence of this attack he sustained the thrice broken jaw, the fractured eye sockets, substantial grazing, bruising and laceration to his face.

25 The precise mechanism by which each injury was caused is less important than the fact that he sustained all these injuries as a result of the ferocity of the attack.

26 I note the attack was not in company, no weapon was used. The attacked was not previously planned, it was a spontaneous response to seeing the victim, as the offender exited. The attack, while sustained, was not of long duration. There was no element of cruelty or torture used by the offender. While I am satisfied the offender was wearing footwear I could not be satisfied, beyond doubt, he was wearing boots or anything akin to having a steel cap. While there is evidence which I accept of kicking, there is no evidence of stomping.

27 Grievous bodily harm was inflicted. The attack was to the head and the potential for traumatic brain injury was great. The primary injuries were to the face, fractures to the jaw and eye sockets. The victim was hospitalised for six days. He was reviewed after seventeen days. There are lingering disabilities to which I earlier referred. Grievous bodily harm is, of course, an essential element of the offence. Captured within that concept of grievous bodily harm is a wide range of injury starting at the threshold of truly serious injury and reaching to a point of great physical maiming and injury just short of death or injury lasting a lifetime. At its extreme end it could see someone in a wheelchair, in a vegetative state with perhaps loss of limb.

28 Grievous bodily harm can comprise temporary injury that heals leaving no residue of scarring, pain or disability. Grievous bodily harm can also comprise permanent impairment, loss of limb, permanent mental or physical disability. The injuries sustained against that measure were not as gross as some, nor were they at the other end of the grievous bodily harm injury spectrum.

29 These injuries should be placed below a mid range of serious injuries available to be inflicted in offences of this kind, but in a spectrum about halfway between that midrange and the lower end of the spectrum of grievous bodily harm.

FORMULATION OF INTENT AND ITS MOTIVE

30 This assault was unplanned, it would appear the offender spotted Mark Richardson at about the time he began calling out to him. The offender was well affected by alcohol, consequently his judgment making and executive function skills were impaired. He wrongly associated Mark Richardson as being in some way connected with the altercation he had been involved in earlier in the evening. He commenced to shout at Mark Richardson who, not surprisingly, could only have wondered what it was all about. The intention of assaulting Richardson was formed by the time the offender stripped off his shirt, but not before he began shouting. The intent to do grievous bodily harm was formed by the time the offender hit Mark Richardson, knocking him to the ground the second time and thereafter unmercifully attacked him.

31 I am satisfied it was only after the assault that the offender became disabused of his belief as to any association Richardson had with the earlier altercation. I am not satisfied the offender struck Mark Richardson as some gratuitous payback to some random person for an earlier incident against some person he could not find. The offender’s association of Richardson with the earlier injury, he [the offender] had received, genuine as it may have been cannot mitigate the objective seriousness of this offence. See R v Mitchell 2001 NSW CCA 296.

THE NATURE OF THE GRIEVOUS BODILY HARM INTENDED

32 There is no evidence other than the ferocity of the attack and the area of the body subject to the attack as to the nature of the grievous bodily harm intended. Nor is it likely the offender specifically directed his mind to it. There is nothing in the evidence to suggest the offender intended permanent injury or handicap to his victim. It is likely he intended to beat his victim until the victim was unconscious and any show of resistance had gone and until his own anger had expiated.

THE NATURE OF THE GRIEVOUS BODILY HARM INFLICTED

33 The injury was of sufficient seriousness as to require hospitalisation, surgery, restructuring of the jaw with mechanical devices inserted into it. The victim impact statement to which I shall shortly come indicates there are some other residual problems, but as against other offences of this kind they are not of major magnitude. In so saying I do not seek to minimise them or the distress they caused to Mr Richardson.

THE OFFENDER ON BAIL AT THE TIME OF INCIDENT

34 On 4 March 2000 the offender had been charged with high range prescribed concentration of alcohol. Twenty-three days later he was convicted, in his absence, of this offence and of being an unlicensed driver. A warrant was issued. It would appear he was recharged with these matters on 1 September 2001 after his arrest. While it is clear he has been charged with the matters and they were before the courts, what is unclear to me is his bail status. Offences committed in breach of bail or bonds aggravate the criminality associated with the new offence because bail and bonds constitute undertaking made to the court to be of good behaviour and trust reposed in the bailed or bonded offender by the court.

35 While it seems unclear to me, as I say on the evidence, the parties apparently agree the accused was on “some form of bail for the 2001 PCA at the time of the offence.” In those circumstances it must be an aggravating feature of his offending conduct.

36 To qualify as an offence under s 33 Crimes Act 1900, given the elements of s 33 as I earlier said, the offence will always be serious. s 33 offences can be more serious than many manslaughter cases. Even so there is that wide range of criminality to be found in the spectrum of cases.

37 In this case, having analysed the elements as best I can, the ferocity of the assault is the feature of greatest criminality by comparison with other features I have examined. In particular the viscous use of the boot on the man on the ground, a man shielding his face as best he could, a man who found himself on the ground as the result of two king hits, one with little warning and the other from behind, justify a finding that the ferocity of the assault is the feature of greatest criminality.

38 The defence rightly concede that full time incarceration is called for. If I were required, for the purposes of setting a standard non-parole period, to embark upon the assessment of whether this offence fell within the mid range of offending, I would assess it as falling below the mid range of seriousness. I would assess it as falling within a range, about halfway between the mid point and offences falling towards the lower end of offending of this kind.

39 That assessment as I say would be based upon the way in which I have analysed the offence and if the feature that I find to be of greatest criminality.

Victim Impact Statement

40 I have received a victim impact statement from Mr Richardson, the material contained in the victim impact statement is not sworn evidence and has not been subject to cross-examination. To the extent that opinions are expressed in it, I recognise they are not the opinions of a qualified expert.

41 The victim impact statement coming a it does from the primary victim may, if I accept it as reliable, provide unsworn evidence as to the fact of the offences and their effect upon him. The function of statements such as this one is firstly to give victims the opportunity of being heard in sentencing proceedings by publicly identifying the impact of the trauma visited upon them by the actions of an offender. Secondly, to enable the sentencing proceedings to assist victims as they move towards some closure of grief, resentment and brooding arising from the criminal conduct of an offender.

42 Thirdly, the victim impact statement contributes to an offender, at least hearing first hand and perhaps gaining insight into the impact his offending conduct had upon the victim. Finally, the victim impact statement ensures that the Court has a continuing consciousness of the impact violent crime has upon those ordinary men and women who are its victims. As such, victim impact statements play an important part in the administration of criminal justice.

43 Although the victim impact statement was typed by a witness assistance officer, it seems to me, as I read it through, that the words used are by and large the words of the victim. He says that since the assault his wife and others describe him as being short tempered. He claims to be easily frustrated. Instead of dealing with things he says he goes off the handle. His children always talk about when “Daddy got bashed up”. “My daughters talk about it a lot” and it’s very upsetting for him that they don’t forget this. He feels that when they are out, if anything happens he cannot stick up for himself. If he is with his children and they say “No Daddy” now, he cannot protect himself, or raise what is correct behaviour and he is concerned that they thing something will happen.

44 He says that it’s always in the back of his mind that something else will happen and that he is scared that something else could happen. It would appear he is also distressed because his family take the same view that something could happen.

45 Since this has happened he does not go out anywhere in Penrith. He has not been there after dark since this happened and in that sense it has impacted upon his social life. Again he makes the comment that his wife is scared of something happening to him and it would seem that he is distressed by that. Likewise his parents are upset by it and it would seem that he is distressed by that too.

46 As to his physical injuries he still has numbness from three-quarters of the way along his bottom lip to the left hand side of his face. He has a permanent tightness in the left side of his jaw, which he believes to be permanent and a constant condition. He says that he has speech problems in that he becomes tongue-tied when he gets emotional and worked up.

47 He says that he is often told by family members about bits of food or dribble stuck to his face, of which he is unaware, because of that loss of feeling in his face, but that causes him embarrassment. If he talks too long his jaw becomes sore. There are complications with chewing particularly foods like steak. He no longer participates in body contact sports, even touch football because he fears risk of further injury and says that there is an effect upon his quality of life with regards to sport.

48 There is scar tissue inside his mouth and although it is internal nevertheless it is physical and it seems to have a psychological and emotional affect upon him. His left eye vision is blurry to some extent. He wears glasses. He noted that when he recovered, his eyesight started to go and that prior to the attack he had perfect vision. He worries whether this is a coincidence or not because his vision was never a problem before. His teeth also throb a bit. He has had to have post operative dental treatment. His dentist has a history of x-rays that show metal pins and the like, in his jaw and other aspects of his injury. He can feel the ache line where it all is.

SUBJECTIVE MATTERS

49 I turn now to the subjective matters, I am both entitled and required to do that. Not only am I sentencing for this criminal offence but I am also sentencing this offender for it. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to an offender may offer to the Court some explanation and insight into the commission of this particular offence, by this offender and some reason why a more or less sentencing outcome is appropriate.

Personal circumstances, family background, relationships.

50 This offender is aged twenty-nine at the time of sentence. At the time of the offence he was aged twenty-two. As stated at the outset Rakoroi is a Fijian national. His father came to Australia when the offender was aged seven. At the age of fifteen, he and his sister migrated to Australia, their mother remained in Fiji. He has not seen her since 1991. He appears well supported by his step-mother, who has been at Court on each occasion.

51 Prior to his leaving Fiji a senior member of the extended family, who he describes as an uncle, sexually assaulted him. Others of his siblings were also sexually abused by the same man, suggesting the abuse was predatory and repetitive. He conceded in evidence he is still having personal difficulties arising from this part of his history. He has two children from a prior relationship, one aged nine and the younger four. He has a twenty-seven year old girlfriend, who is pregnant with his third child, expecting that child in April, 2008.

Education, skills and employment

52 Sam Rakoroi completed School Certificate Level at Year 10. He completed a two year nursing certificate course working three years thereafter in a nursing home. For the past eighteen months he has worked as a storeman at Elspac Aluminium. Probation and Parole Report his employer regarded him as an excellent employee who worked without supervision and was self motivated. He resigned from this employment prior to this matter being listed on Monday, to improve his chances of re-employment there upon release.

53 The offender has an interest and apparently skills in Rugby. He was playing rugby at the time of this offence for a Penrith based team.

General Health.

54 The offender presents as a fit, solidly built man. As best one can tell from appearances he appears to be in good physical health.

Mental Health.

55 There is nothing before me to suggest any mental health issues that would impact upon his rehabilitation or social interaction in the community. There are some signs of depression. He was weeping in Court on more than one occasion during the hearing of this matter. He has personal issues to work through relating to his sexual assault. There are anger issues that may relate to his unresolved sexual issues or some other pathology.

ALcohol and Drug Abuse.

56 He acknowledges he drank to high levels of intoxication as a young man. He drank weekly Fridays and Saturday nights with members of his Rugby Club until he was staggering drunk with little or no memory of his drunken night the following day. The effect of his evidence was that the Friday night in question was an example of that level of drinking. However his conduct during the fight would suggest his level of intoxication was, at least on this occasion, not one of being staggering drunk. There are two factors that persuade me of that, firstly, the vigour of the attack and secondly, the presence of mind to take his shirt off prior to the attack, presumably to keep it clean or untorn or unsoiled.

57 In fairness though he did say, “I don’t know when I started drinking that night, but I did have a lot to drink.”

CHaracter and Criminal History.

58 This offender is twenty-nine years old. Thus far he appears to have a strong work ethic with good feed back from his last employer. Since the offence he has been in further trouble with the law consistent with his alcohol abuse. I will come shortly to his offending prior to today. At the time of the offence his record had no convictions for violence and there was one PCA conviction on his record and a conviction for offensive behaviour.

59 When dealing with him for this offence he is entitled to have some leniency on account of that record. His subsequent convictions include a s 10 dismissal for contravene apprehended domestic violence. There is one further assault 2002; in 2003 a further PCA and drive whilst disqualified. There is nothing in that record which suggests problems with rehabilitation. This present offence is far and away the most serious offending he has ever done. His antecedents together with the probation and parole report suggests a prior unwillingness though to cooperate with agencies in the criminal justice system.

60 There are numerous convictions entered in his absence. A warrant issued for his arrest. The probation and parole report notes he currently has an outstanding breach of CSO matter (17/9/07). It also notes there failure to comply with reporting conditions of a bond imposed on 3 March 2002, to a point where breach proceedings were initiated. On three occasions he commenced the Pacific Islander programme. This is a programme designed by probation and parole but run by Pacific Islanders to facilitate Pacific Islanders dealing with stressors leading to Pacific Island men and women committing criminal offences.

61 The course is a group therapy course of sixteen two hour lectures or two hour sessions rather than based on weekly attendance. On his third occasion he committed to and completed the course. His group comprised eleven Islanders, Samoan’s, Tongan’s and Fijian’s. Nine men and two women. Probation and parole assessed “[he] demonstrated positive attitude and discipline on the programme. His demonstrated positive attitude and discipline on the programme and recent employment all could indicate that Mr Rakoroi may have learnt to deal with stressors in a more positive way.”

62 The author also observed continued counselling and support could assist in maintaining these changes. It is likely the offender has gained in maturity and insight as a consequence of his participation in the Pacific Islander programme. As a father he has no access to his two children. Their mother has resisted him having access. He has, however, recently paid $4,000 overdue child support payments being the total sum outstanding on that account.

ATTITUDE TO OFFENCE.

63 I am satisfied the offender is profoundly contrite. Counsel has taken him through the photographs, taken very shortly after the assault. I am satisfied they gave him an insight into the effect of his offending conduct. The plea was entered before the Magistrate but as far as I can tell on 29 June 2007 there had been negotiation in the Local Court noted on the file on 9 February 2007. Those negotiations sought to revive earlier negotiations being conducted five years earlier. The matter had originally come before the Local Court on 17 September 2001 where it lingered until 28 June 2006. The delay to that point related to the Crown’s desire to secure DNA evidence.

64 On 28 June 2002 the offender was not before the court, an arrest warrant was to issue. His bail was forfeited. Significantly he was charged on 15 November 2002; was before the Fairfield Local Court on 26 February 2003 on a first instant warrant. Charged with low range PCA on 10 September 2003. Charged with drive whilst disqualified on 18 November 2004. A second charge for the same offence on 20 December 2004. In respect of those offences he may have done custody from 31 July 2005 to 4 October 2005. Yet it would appear the hearing of this matter is not revived until 19 October 2006. There is incarceration commencing on 5 October 2006.

65 There appears to be a level of inefficiency by those managing the warrant index. That this offender could be charged and dealt with, in one instance on a first instance warrant, yet the warrant apparently issued by the Magistrate for his failure to appear and at the time his bail was forfeited was never activated. As I say that warrant was issued on 28 June 2002.

66 Two issues arise from this. Firstly, what, if any of that delay in finalising this matter is attributable to each of the parties. Secondly, what, if any, impact does the history have upon the offender’s entitlement to utilitarian discount for the plea.

67 Certain aspects of the utilitarian value to the plea, to the administration of criminal justice are maintained. This guilty plea must still be recognised as a significant contribution to this offender of advancing the administration of criminal justice, in this case, firstly and foremostly because the interests of the administration of criminal justice are served through the public acknowledgement by an offender of his guilt.

68 Pleas of guilt by offenders sustain the communities confidence in the administration of criminal justice by maintaining the confidence of the community in the investigation of crime and the communities’ expectation that those guilty of crime will be held accountable for it. The administration of criminal justice in this case is also served because court time, witnesses time, legal expenses and the like are freed so that they can be devoted to other cases.

69 The plea reduce considerably the likelihood of contest in an appeal on the issue of guilt. These are all important utilitarian factors insofar as the administration of criminal justice is concerned in this case. However, if 25 percent discount is allowed for full utilitarian value that would not be this case. His failure to appear, the necessity of a Magistrate to issue a warrant, the numerous subsequent Local Court appearances, post October 2005, the revival of the negotiations, all impact upon the utilitarian value of this plea when measured against those who plead quickly on service of the Crown brief or even on occasions before service of the Crown brief.

70 Further the failure to adhere to bail dissipates the quality of the utility of the earlier mentioned matters. For those reasons I have diminished the discount I will give in this case to one of seventeen and a half percent.

Delay.

71 As to delay it must be remembered an arrest warrant is an order of the court. Orders of the court should be executed by the administrative arm of government as soon as practical after being made. What that means in this case is that whether it was practical for a warrant to have been executed prior to 5 October when it seems it was. On the other hand the offender failed to answer his bail. Any delay caused by this failure must be seen as his fault. Nonetheless the court order that he be arrested was about ensuring that justice was done as speedily was it could be.

72 In my view it is inexplicable he was not arrested on a warrant of arrest issued in respect of this matter in February 2003, September 2003, November 2004, and July 2005. In these circumstances I intend to make some allowance for delay. While I recognise that delay occurs as a breach of his bail, any allowance made in those circumstances must be significantly more muted than it otherwise may have been. But given the absence of efficiency in the warrant system he is also being dealt with later than that he otherwise would have been.

73 His rehabilitation prospects are to be assessed as he stands for sentence today. Of some relevance as positive indicators are

• His general good health.
• His work ethic in recent years and the good report of his employers. His training as a nurse. Both mean that he is likely to be able to find employment upon release.
• His contritition and insight into his offending conduct.
• His relatively minor criminal record relating primarily to driving.
• His recent maturing as a result of the Pacific Islander programme.
• His family support and the support of his girlfriend.
• His motivation for committing this offence was apparently based on an error, that is unlikely to reoccur in future.
• A lack of connections with the criminal milieu.

74 There are some negatives that need to be balanced and taken into account.

• A prior inability to cooperate with criminal justice agencies.
• His past serious abuse of alcohol.
• His need to resolve personal issues underlying his anger and his past experience of being sexually assaulted.

SETTING THE SENTENCE.

75 While this may be viewed as a stale offence General and specific deterrence are still of importance. By specific deterrence I mean deterrence aimed at persons who would be willing to commit similar offences. I have certainly taken that into account.

STANDARD NON-PAROLE PERIOD

76 Since February 2003 a standard non-parole period can be applicable to this offence. This offence occurring as it did eighteen months earlier is not caught by the standard non-parole considerations. The proper approach to this sentencing is to apply the sentencing tariffs and norms applying in 2001.

77 I have been supplied with JIR statistics showing the distribution of sentences for 159 cases of this offence where the offence was committed prior to February 2003. Ninety-four percent of offenders in this distribution were sentenced to full-time incarceration. Ninety-nine percent were sentenced to some form of imprisonment.

78 The head sentences are spread from eighteen months to sixteen years. Thirty-one percent of offenders in that distribution received a non-parole period of two and a half years or less. Twenty-five percent received a non-parole period of two years or less. Twenty-five percent of offenders received a head sentence of three and a half years or less and thirty-three percent received a head sentence of four years or less.

79 But for the plea of guilty I would have set an overall sentence for this offence of five years imprisonment. Applying a seventeen and a half percent discount, the sentence reduces to one of four years, two months and fifteen days. I have been urged by the defence to find special circumstances. The Crown has not opposed that submission. I have determined this is an appropriate case for finding special circumstances.

• this is the offender’s longest time in custody.
• he agrees he needs to pursue counselling in relation to the sexual assaults earlier committed upon him. That is best achieved through consultation with psychologists at a Community Health Centre.
• after April 2008 his prison time will be particular arduous as his girlfriend delivers their child and raises it in his absence.
• his other rehabilitation is better achieved in the community.

80 The offender has been in custody since 6 November 2007, that is Monday of this week. However it has just occurred to me during the reading of these remarks that he has also probably spent, it would appear to me, three days, 5 October 2006, 19 October 2006 and 13 April 2007 in custody. I intend to allow those three days. I can do that best by back dating this sentence to 3 November 2007.

81 Sam Rakoroi I convict you of this offence that you on first day of September 2001 at Penrith maliciously inflicted grievous bodily harm upon Mark Owen Richardson with intent thereby to do grievous bodily harm to him. For that offence I sentence you to a non-parole period of two years and four months to date from 3 November 2007 and to expire on 2 March 2010. I set a balance of term of one year, ten months and fifteen days to expire on 17 January 2012.

82 The first day you will be eligible for release to parole will be 2 March 2010. In order to be released to parole you will need to persuade the Parole Board that you are a suitable candidate for parole on or by 2 March 2010. If you do not persuade them, they do not have to release you on that day.

83 I formally recommend you do be released for parole on that date as you presently stand before me. If things change because of your behaviour in the gaol system they are not bound to accept my recommendation. I recommend to the Parole Board that you be supervised by Probation and Parole for at least the first eight months of your parole period. I recommend further that you be required to reattend the Pacific Islander programme and reconnect in that way with the community and expected behaviour of you in the community. I further recommend that you also be required to attend your local Community Health Centre and seek a course of counselling in relation to that history of sexual abuse that you told me about.

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