R v Scott Golding

[2011] NSWDC 104

District Court

New South Wales

Medium Neutral Citation:	R v Scott GOLDING [2011] NSWDC 104
Decision date:	11 July 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	Non-parole period of 2 years 3 months, balance of the term of 9 months.
Catchwords:	CRIMINAL LAW - sentence - reckless wounding -additional charge of common assault to be taken into account - plea of guilty at earliest opportunity - stabbed victim during fight with fishing knife - heavily intoxicated at time of the offence -prior criminal record - unsatisfactory performance during previous periods of supervision by Probation and Parole Service - completed school certificate while in custody - history of offending related to drug and alcohol abuse - offence in the middle of the range of objective seriousness - guarded prospects of rehabilitation
Legislation Cited:	Crimes Act 1900 s 35(4) Crimes (Sentencing Procedure) Act 1999 s 21A, s 32
Category:	Sentence
Parties:	Regina Scott Golding
Representation:	Mr Robinson for the Director of Public Prosecutions Mr Stewart for the offender
File Number(s):	2009/54267

SENTENCE

1. Scott Golding has been drunk and committed crimes before. I am sentencing him for a very serious crime which he committed whilst he was drunk. It resulted in a teenager having to be taken to hospital for emergency surgery because of a stab wound inflicted by Mr Golding.

2. Mr Golding has been charged with the offence of reckless wounding. He has pleaded guilty to that offence at the earliest available opportunity. The offence is made a crime by s 35(4) of the Crimes Act 1900. Parliament has fixed a maximum of seven years imprisonment to the crime. Parliament regards it as so serious that it has also fixed a standard non-parole period of three years to the crime.

3. When I am sentencing Mr Golding for the crime, he has asked me to take into account another offence of common assault committed on the same occasion. I will take that into account when I am sentencing him and I sign a form comprising that additional charge, provided under s 32 of the Crimes (Sentencing Procedure) Act 1999.

4. It is important for a judge in sentencing a person to briefly describe what happened so that the basis of the sentence can be understood. Mr Golding, who is now thirty-four, was working on fishing boats in the Northern Territory. He came to Sydney on 11 January last year on a break from work and in order to stay at a friend's house in Surry Hills.

5. Mr Stewart of counsel called his client to give evidence. Mr Golding described how he had been drinking before he left Darwin and on the plane flight to Sydney, so that when he got off the plane he was, as he described, " blind drunk ". He got to his friend's place in Surry Hills and started drinking again straight away. They and others were drinking all day.

6. There was a young woman who lived at the same place who was in the group. Some sort of argument developed and the young woman left.

7. But the young woman came back with a group of men who appeared at the front gate of where Mr Golding was staying and drinking. One of the men who had turned up said that he wanted to " confront " the people in the house about what had happened. A couple of people from inside went outside and asked the group to leave. They did not.

8. Then Mr Golding came out. The main man in the group outside invited Mr Golding to fight him. According to the summary of facts, Mr Golding then shouted, " I'll sort this ," and ran back into the house. He returned a moment later with a knife. He had brought the knife with him from Darwin and it was his filleting knife which he used for fishing. Mr Golding in evidence said that he had not said " I'll sort this " but that he had said, " We can sort this out ." I will accept for the purposes of sentencing that he said what he claimed he said in evidence before me. It does not make, in my opinion, a lot of difference to the seriousness of what then happened.

9. The men outside were accompanied by a girl who was a teenager. She was sixteen. Mr Golding was outside wielding his knife around. He ran towards the man who had invited to fight him and stabbed towards his stomach and chest area. Fortunately he missed. He tried again to stab or slash this man, but the man jumped back. At this stage the teenage girl, as the summary of facts says, " jumped between " the man and Mr Golding, and Mr Golding " stabbed her in the left side of her chest, below her armpi t". The girl cried out and doubled over in pain, staggered a short distance and collapsed. She was bleeding heavily.

10. Police and ambulance were called. As it happened the teenage girl suffered what the facts describe as a " deep penetration wound that punctured her left lung, causing it to collapse and causing breathing difficulties ". She required immediate surgery. She stayed in hospital in the intensive care unit for recovery. She required a tube for several days from her chest to provide fluid.

11. Mr Golding's response to this predicament was to take himself to Adelaide. From there he took himself on to Perth and then back to Darwin. Police tracked him down in Darwin in the following month and he was arrested on 21 February 2010.

12. As I said, he pleaded guilty to this crime at the earliest available opportunity.

13. Mr Golding has a criminal record. He has a couple of offences which he committed as a child, but he has also served gaol time as an adult between 1996 and 2006 for offences involving violence. These offences include assault occasioning actual bodily harm and intimidating or assaulting a police officer. In other words I am sentencing a man who has previously inflicted his violence on members of the community, and has once again done exactly the same, but with far more serious consequences.

14. There is a helpful presentence report prepared by the Probation and Parole Service. It summarises Mr Golding's position in the following terms-

" Mr Golding is a 34 year old male who is currently single and has no dependants.

His childhood has been described as dysfunctional and he grew up in a home where he was witness to physical and alcohol abuse, and did not have a positive male role model in his life as he was growing up.

Although describing a pattern of binge drinking and abuse of illicit drugs, Mr Golding has expressed resistance towards addressing his abuse, having participated in numerous past interventions. The fact that he does not believe he requires assistance to address his substance abuse is of concern. Whilst the offender admits to the offences, he claims to have limited memory due to his level of intoxication. It is concerning that he has in the past advised this service that he has had limited memory of his offending due to being affected by substances ."

15. The report noted that he had been assessed in previous periods of supervision as performing unsatisfactorily. He left school when he was about fourteen, but completed, to his credit, his school certificate at some stage when he was in custody. The Probation and Parole Service records indicate " a history of offending related to abuse of alcohol and illicit drugs". The report assessed him " as unlikely to benefit from supervision by this Service, that is because of his past poor response ".

16. Mr Stewart tendered a report by Tim Watson-Munro, a consultant forensic psychologist. Mr Watson-Munro recorded a history for Mr Golding and then concluded that Mr Golding " requires ongoing psychological assistance to reinforce the progress he has made to date ". He thought he needed one-to-one psychotherapy which should focus on depression and anxiety. He also needed to deal with relapse prevention strategies. Dr Watson-Munro thought that working as a fisherman was integral to his recovery. He thought that Mr Golding had a substantial and protracted polysubstance abuse disorder.

17. In his evidence Mr Golding had said, so far as the offence was concerned, that he was too drunk to defend himself and went to get the knife in order to protect himself and the others. He acknowledged that use of the knife was wrong and the recklessness involved in him waving it around. He acknowledged it was a shocking thing to do and indicated that none of the offences he had committed before involved violence. He said that there was a lot of violence and alcohol around when he was growing up and that he really had to fend for himself from the age of thirteen. As it happens in recent years he has met his biological father, who left his mother before he was born. He stays in touch and finds it helpful.

18. His history of drug abuse includes ecstasy, cocaine and cannabis. He used heroin on one occasion for the first time since this offence. He stopped cocaine use at one stage when he was in custody. He acknowledges an ongoing problem with alcohol abuse. He has undertaken a program whilst in custody. He acknowledged that he thought it was better for him to remain away from alcohol. He has a close relationship with his sister Stacey and with his mother. Fishing is a job which he very much enjoys and is good at. However what happens is that when he comes back ashore he tends to binge drink. This is obviously what happened on this occasion. He said he can get a job in the fish markets around Sydney.

19. In cross-examination by Mr Robinson, who appeared for the Director of Public Prosecutions, he acknowledged that it was a sharp knife which would not have required much force. He denied that he got the knife because he wanted to fight or wanted to escalate what was going on. He thought he was older and wiser now.

20. Mr Stewart also called as a witness Stacey Auld, Mr Golding's sister. She said that as a child Mr Golding was just left to cope for himself. There was never anyone there for him. Their parents were quite aggressive towards one another and there was violence. There is some seven or eight years difference between Ms Auld and Mr Golding. She has a successful hairdressing business. She has always stayed in touch with her brother. She describes him as very caring and he gets on very well with her four young children. She regards fishing as a very positive experience for him because he has always loved boats.

21. Mr Robinson provided some helpful written submissions. He acknowledged that Mr Golding was entitled to the maximum of twenty-five per cent discount because of his early plea of guilty. He also acknowledged that the offence was clearly not part of any planned or organised criminal activity. He argued that the offence, carrying as it does a standard non-parole period, lies within the middle of the range of objective seriousness. Mr Robinson pointed to the use of a knife and that the victim was sixteen years old, and in particular the seriousness of the injury. He argued that Mr Golding had limited prospects of rehabilitation because of a limited insight and his lack of accepting responsibility and an expressed reluctance to participate in further efforts to rehabilitate himself.

22. Mr Stewart argued that the offence which his client committed in fact fell below the middle of the range of objective seriousness. He argued this for a number of reasons. He said the offence was not brought about by his client, it was totally unexpected. That might be right, but in fact it was his client who went back into the house to get the knife. No knife had been involved at the start, said Mr Stewart. That is also right, but his client then introduced the knife which significantly increased the potential for serious damage.

23. His client was heavily intoxicated which I take into account, but not as a mitigating factor. Mr Stewart did not suggest it was, but as indicating the context or circumstances in which it happened. I accept that in these circumstances the age of the victim was not an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999, but it needs to be taken into account that the victim of his reckless behaviour with the knife happened to be a teenage girl.

24. I accept that there was no history or pattern of use of weapons, although that is not directly relevant to the assessment of the objective seriousness. If there was a degree of excessive self-defence, as Mr Stewart argued, I do not regard that as a very helpful way of classifying the crime. The crime was reckless wounding, which occurred because Mr Golding introduced a knife into an already volatile situation.

25. I regard the offence as lying in the middle of the range of objective seriousness and towards the middle of that range. The main reason for making that finding is the seriousness of the injury in this case. It was a very serious injury to be inflicted, with significant immediate consequences. Mr Golding is lucky not to be standing in the dock in the Supreme Court facing a murder trial. In addition, it was Mr Golding who introduced a knife into the situation and there was nothing mitigating about the circumstances of his use of the knife so far as the context in which the offence occurred.

26. The common assault, which I take into account in sentencing Mr Golding, is his attempt to stab at one of the men in the group.

27. I will take into account and make allowance for his plea at the earliest available opportunity.

28. I take into account his background, but there must be a limit to the extent to which I can take that into account for a man who is now thirty-four years of age.

29. I take into account that he has secured very good employment. He is obviously a hard and well-regarded worker. His prospects of rehabilitation however must be, at best, guarded. I do not regard them as good.

30. Mr Stewart argued that there are special circumstances for adjusting the relationship between the non-parole period and the balance of the term. He pointed to the assistance which he would need in dealing with alcohol. Mr Robinson argued that that alone is not sufficient to amount to special circumstances. I accept that argument in the circumstances of this case. Given the age of Mr Golding and his attitude in the past, I do not propose to adjust the ratio. I would regard, as it happens, the period I have and will allow as appropriate.

31. I regard an appropriate overall sentence in this case for the crime committed by Mr Golding as four years imprisonment. However, he has pleaded guilty at the earliest available opportunity. I will therefore discount that sentence by twenty-five per cent, so the sentence which I propose to fix is three years imprisonment. I will fix a non-parole period of three-quarters of that, which will be two years and three months.

HIS HONOUR: I am going to sentence you now, Mr Golding, if you would stand up.

32. I fix a non-parole period of two years and three months, to commence on 21 February 2010 and to expire on 20 May 2012. The balance of the term is nine months, to commence on 21 May 2012 and to expire on 20 February 2013. I make an order directing your release on parole on 20 May 2012.

HIS HONOUR: Mr Robinson and Ms Elamrousy, first if you would check the figures, and secondly, because I've ordered his release on parole, I'm wondering whether there are any parole conditions, apart from good behaviour. I indicate as well, which will be noted on the document I sign, that I have taken into account the offence on the Form 1. Mr Robinson?

ROBINSON: Your Honour, I can't see any issue with the figures, firstly. Secondly, with regard parole conditions, I know the presentence report says that he will be unlikely to benefit and I note my written submissions, but I now submit, your Honour, that you might consider drug and alcohol counselling as a condition, on the basis of Mr Golding's evidence in the witness box that he might benefit this time around.

HIS HONOUR: Yes, okay, I will consider that. Anything else?

ROBINSON: Those are my submissions, your Honour.

HIS HONOUR: What do you say, Ms Elamrousy?

ELAMROUSY: I agree with my friend, your Honour, to undertake a suitable drug and alcohol course.

HIS HONOUR: Okay, and the figures, no error?

ELAMROUSY: I have no problems with the figures, your Honour.

HIS HONOUR: Okay.

33. The conditions of Mr Golding's parole are these-

1. That he be of good behaviour;

2. That he submit to the supervision of the New South Wales Probation and Parole Service, and accept its reasonable recommendations and directions so far as drug and alcohol rehabilitation are concerned.

HIS HONOUR: Anything else?

ELAMROUSY: No, your Honour.

ROBINSON: No, your Honour.

34. Mr Golding, you have got a three year sentence for this crime. I have taken into account the assault wielding the knife at the fellow called Ryan. It is included in the three years. I have fixed a non-parole period of two years and three months, that starts when the sentence starts. I have backdated it to 21 February last year when you were arrested. Your non-parole period expires on 20 May 2012, 20 May next year. I have ordered that you be released on parole on that day. You are still under sentence, as you know. You have got another nine months that you are still under sentence and that sentence expires overall on 20 February 2013. You know that during your parole you have got to behave yourself. You know that if you misbehave you are back in court, or the Parole Authority will simply remove your parole and you are back in prison serving the balance of the term. You know that, don't you?

OFFENDER: Yes.

35. I have made it a further condition of your parole that you subject yourself to supervision by the Probation and Parole Service. That will be here in Sydney. I have taken into account your evidence that you can find work out of Sydney, and I have recommended that you accept their advice so far as drug and alcohol. Do you understand that?

OFFENDER: Yes.

HIS HONOUR: Did you want to have a word to your client at all, Ms Elamrousy?

ELAMROUSY: Yes, thank you, your Honour.

HIS HONOUR: Have a word to him now before he goes down. Mr Robinson thank you, Ms Elamrousy, thank you, you are both excused.

ADJOURNED

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Decision last updated: 22 August 2011