R v Shaun Barry LOGAN

[2008] NSWDC 337

CITATION:	R v Shaun Barry LOGAN [2008] NSWDC 337
HEARING DATE(S):	3 July 2008
JUDGMENT DATE:	3 July 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to an overall period of imprisonment consisting of a non parole period of 18 months with a balance of term of 10 months
CATCHWORDS:	CRIMINAL LAW - Sentence - Maliciously inflict grievous bodily harm - Assault with intent to rob - Intoxication at time of offence - On bail at time of offence
PARTIES:	The Crown Shaun Barry Logan
FILE NUMBER(S):	DC 2007/11/0604; DC 2008/11/0146
COUNSEL:	P K Lynch - Crown M G Ainsworth - Offender
SOLICITORS:	NSW DPP

SENTENCE

1 HIS HONOUR: Shaun Barry Logan pleaded guilty to two offences: One of maliciously inflicting grievous bodily harm and a second of assault with intent to rob. These offences were committed some eight months apart. At the time of the first offence, the offender was on two bonds for having assaulted police officers. At the time of the second offence, he was on bail for the first. Both offences were committed when the offender was intoxicated.

2 The first offence, the most serious, was committed on 25 February 2007. The offender had been out for the night and had been drinking. He was returning to where he lived when he was confronted by two other men, one of whom ended up being the victim of the offence of maliciously inflicting grievous bodily harm. His name was Bradley Peniston. Some form of altercation occurred between Mr Peniston and the offender.

3 The offender’s girlfriend was present. As a result of the altercation, she contacted triple-0. At this point, someone produced two knives. The matter was put before me today on the basis that the Crown could not prove that it was the offender who produced the knives and the offender could not prove to the standard required that Mr Peniston had produced the two knives. I was invited by both parties to proceed on the basis that it was entirely neutral; it was not a matter of aggravation that the offender and produced the knives but nor was it a matter of mitigation that he was not.

4 In any case, as I say, someone produced the two knives. They came into possession of the offender. He stabbed Mr Peniston repeatedly. He received a number of significant stab wounds to the left side of his chest and neck. One wound penetrated through to his shoulder. In an attempt to defend himself, he put his hands up and subsequently received knife wounds to his left forearm, hand and fingers. He was on the ground when these injuries were inflicted upon him by the offender. It must have been a ferocious attack.

5 Mr Peniston managed to get to his feet and run away. He was observed by a witness, covered in blood, yelling “help me” as he ran. The offender was not done, however. He ran after Mr Peniston holding a knife in each hand. Mr Peniston was clearly frightened for his life. As he reached an intersection, there was a taxi stopped at a red light. The passenger in the taxi saw Mr Peniston and saw the offender holding two knives. The offender was clearly continuing to act aggressively, yelling to Mr Peniston, “If you want to stab me, bring it on.”

6 Eventually, Mr Peniston collapsed on the front porch of a nearby home, bleeding profusely. Two passers-by assisted him and called an ambulance. He was taken to hospital and treated. He required surgery. He was in an induced coma for two days. He received sixty-four metal staples to his neck, chest and back, and a further sixteen staples to his left arm. He received eleven stitches to his left hand and fingers and five stitches to the top of his head. He also fractured his collarbone.

7 As a result of those injuries, Mr Peniston has suffered significant nerve damage to his neck area and lost all feeling on the left side of his face and earlobe. He requires ongoing therapy on his hand to repair tendons and regain movement and strength. He also reports that he suffers from depression and anxiety, finding it very hard to go places, with a constant of fear of people in public places. The consequences to Mr Peniston are entirely foreseeable, given the ferocity of the attack.

8 After Mr Peniston got away, the offender walked back the way he had come, still armed. He threw a knife away, which police later recovered. They also recovered another knife. On speaking with the offender, the police noticed that he was covered with blood but his only injury was a one-centimetre cut to his head.

9 I am prepared to accept that the offender was initially attacked by two men but the offender’s reaction was seriously criminal and seriously violent. The offence was aggravated by the circumstance that he was on a bond for assaulting police officers. The offender was granted bail.

10 If he had not been granted bail, perhaps the second offence would not have occurred because on 1 October 2007, a second victim had to suffer at the hands of the offender. On this occasion, a Mr Adam Parker was sitting outside a convenience store eating a kebab. He had had a bit to drink. He was approached by the offender who had also had a bit to drink and was in the presence of two other men. The offender said to Mr Parker, “Nice watch, and I like those bangles too. I might have those.” He also demanded Mr Parker’s kebab. He then tried to grab Mr Parker’s watch. Mr Parker, not surprisingly, resisted and said, “You're not getting anything off me.” Mr Parker then punched the accused in an effort to get rid of him. In response, the offender put Mr Parker in a headlock. Mr Parker then kicked him in the groin and the offender punched Mr Parker several times. Fortunately, the offender was restrained by the two other men that I have mentioned. He left the scene but was arrested whilst getting a train away from the area.

11 As I mentioned, this offence was committed whilst he was on bail for the first. The offender has spent three days in custody as a result of these offences but has been on bail for most of the time. He entered pleas of guilty to both offences on the day the matters were listed for trial. Accordingly, to reflect the utilitarian value of those pleas, I will reduce the sentences I would otherwise have imposed by ten per cent.

12 The offender is a qualified chef. He is twenty-five years of age and has always seemed to be able to get employment. He was born in Nowra, being the oldest of two siblings. He was raised by his mother until he was eleven years of age, at which time it appears his mother and his half-sibling abandoned him. The offender’s father took him in. It seems that before his mother abandoned him, she subjected the offender to physical abuse which may be due to her alcohol and illegal drug use. The offender has a good relationship with his father, his father’s parents, and his younger sibling. He has, however, not had any contact with his mother for some time.

13 As I mentioned at the outset of these remarks on sentence, the offender was intoxicated at the time of both offences. He commenced drinking at about fifteen and began to binge-drink for periods of up to ten hours at a time. Apparently, he has moderated his alcohol consumption somewhat. Mr Ainsworth frankly tells me that he had a few drinks last night in anticipation of being sentenced today but that is a rare event.

14 The question of the offender’s ability to deal with his alcohol consumption is of course related to his prospects of rehabilitation. Given the circumstances that these offences were committed whilst the offender was highly intoxicated, it seems likely that the offender’s consumption of alcohol has played a part in his commission of offences. If he is able to deal with his excessive alcohol consumption, then the chances of him committing further offences are reduced. I cannot say, however, that he has good prospects of rehabilitation nor that he is unlikely to re-offend. Nor am I prepared to find that the offender is remorseful. No evidence was given by the offender and none was called on his behalf.

15 The author of the presentence report notes that:

“[I]n spite of the ferocity and apparent shift from victim to aggressor, Mr Logan further indicated that the offences now before the court were committed whilst he was attempting to defend himself and his partner.”

16 Any suggestion that the offender was in any way defending himself must of course be immediately be rejected, given the nature of the offender’s attack upon Mr Peniston. I repeat, he chased Mr Peniston after having inflicted brutal and ferocious violence upon him. There was no question that these offences were committed whilst the offender was attempting to defend himself. The suggestion to that effect is a significant impediment to me finding that the offender is remorseful.

17 Mr Ainsworth relied on some statistics published by the Judicial Commission. They are, of course, helpful but as the authorities have firmly stated, of limited utility. It is to be noted that the statistics provided for the offence of malicious wounding must be of very limited utility in this case. I can imagine very few offences of this nature where the offender is dealt with for malicious wounding rather than the aggravated form of the offence: malicious wounding with intent. These statistics are, in all likelihood, reflecting much less serious offences.

18 I am satisfied that a full-time custodial sentence is required in the present circumstances. Mr Ainsworth addressed me about the possibility of periodic detention but I am satisfied, particularly in light of the objective gravity of the malicious wounding offence, nothing less than full-time custody would properly reflect what the offender has done.

19 There are special circumstances; this will be the offender’s first time in custody and I should also note that there will be an element of accumulation. These offences were committed quite separately and the offender must be separately punished for them. Although, however, of course, the principle of totality applies; the accumulation will therefore be partial.

20 There is no suggestion, particularly in relation to the malicious wounding offence, that these offences were planned. Certainly, in relation to the malicious wounding, as I have found, that offence occurred after the offender was initially attacked by two men; over what we just do not know. That is a matter of mitigation. The offender did not go out intending to stab someone that night, however, its value as a matter of mitigation to the offender is limited by the circumstance that the offender’s actions went far beyond any reasonable response to having been attacked by those two men. Although in one sense the offender was provoked by Mr Peniston, that is not a significant matter in mitigation, given what occurred afterwards.

21 The offender is sentenced as follows: For the offence of assault with intent to rob, the offender is sentenced to imprisonment. I set a non-parole period of six months to commence on 30 June 2008 and a head sentence of ten months. For the offence of inflicting grievous bodily harm, I set a non-parole period of one year to commence on 30 December 2008 and expire on 29 December 2009. There is a balance of term of ten months on that offence, thus the offender is entitled to be released to parole on 29 December 2009 and the overall sentence is one of eighteen months non-parole period with a ten-month period of eligibility for parole.

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