R v Sullivan

[2018] NSWDC 366

District Court

New South Wales

Medium Neutral Citation:	R v Sullivan [2018] NSWDC 366
Hearing dates:	26 October 2018
Date of orders:	26 October 2018
Decision date:	26 October 2018
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is sentenced to imprisonment consisting of a non-parole period of 2 years and a head sentence of 4 years
Catchwords:	CRIMINAL LAW – Sentence – Recklessly cause grievous bodily harm – Intervening in a dispute between a man and a woman –Motivated by anger – Violence inflicted on man trying to prevent violence – Parity – Extensive and ongoing injuries to victim
Cases Cited:	.
Category:	Sentence
Parties:	The Crown Dermot John Sullivan
Representation:	Counsel: A Robertson – The Crown D McMahon – The offender Solicitors: Director of Public Prosecutions – The Crown
File Number(s):	2015/182112

Judgment

1. HIS HONOUR: The offender Dermot Sullivan appears for sentence after pleading guilty, at a relatively late stage, to one offence of recklessly causing grievous bodily harm. The offence occurred on 19 June 2015.

2. The offender was in Australia on a work visa. He was staying at a backpacker’s hostel in Manly. He went out, having some drinks, although not many, with two others who were also staying at the hostel, a Mr Kornic and a Mr Hickey. The three of them, that is, Mr Sullivan, Mr Kornic and Mr Hickey saw a man named Madden push his girlfriend, Ms Roberts, to the ground causing an injury to her knee. Consistent with Mr Sullivan’s earlier behaviour, which I will mention in a little while, of intervening to look after others he and his friends approached Mr Madden and Ms Roberts to intervene. An argument ensued resulting in Mr Madden throwing punches towards Mr Kornic. An altercation arose with Mr Kornic and Mr Hickey throwing punches at Mr Madden.

3. There were two bystanders nearby, including a Mr Neal Glassey who was sitting a bus stop. He saw the men chasing Mr Madden who was on his own. Mr Glassey walked over to intervene because Mr Madden was clearly outnumbered. The other bystander was a Mr Jordy McKay, it was he who ultimately became the victim of Mr Sullivan’s offending. He saw the males appearing to have a fight with Mr Madden. He could see Mr Madden having a verbal argument with Ms Roberts. He saw Mr Glassey get in-between Mr Madden and two Irish males, they were Mr Kornic and Mr Hickey. They were trying to get at Mr Madden despite Mr Glassey’s intervention. At this stage Mr Sullivan was some distance away from the main altercation, about 3 metres.

4. Mr McKay decided that it was necessary to intervene as things were again getting heated. Not for Mr McKay was the attitude of ‘do not get involved’. He decided, and one can well understand this decision, that he should intervene because of the risk of things becoming more violent. He put out his hand in front of the offender and said, “Come on guys”. The offender grabbed Mr McKay and said, “Don’t touch me”. It was then that the offender walked over towards Mr Kornic and Mr Madden, as he did so Mr McKay took hold of the offender’s shirt and pushed him back. As I understand it, Mr McKay was intending to prevent Mr Sullivan joining the altercation involving Mr Kornic and Mr Madden. Mr Sullivan responded by pushing Mr McKay to the ground.

5. There, matters should clearly have ended but what happened next was a very serious criminal act. Mr McKay had his head up, he was trying to get up off the ground. Mr Sullivan was over the top of him. He punched Mr McKay forcefully hitting him straight in the bottom of the nose in an upwards motion. Mr McKay felt immense pain, his vision had gone blurry but he managed to stand up almost straightaway. He realised that his nose was bleeding quite heavily. He walked to Manly Police Station, with Mr Sullivan, Mr Kornic and Mr Hickey going to the hostel where they were staying. An ambulance was called to take Mr McKay to the hospital. He was found to have very significant injuries requiring 24 days in hospital. I will speak a bit more about the onsequences for Mr McKay in a little while.

6. Police were able to identify Mr Sullivan as being the person who hit Mr McKay and he was charged. He was charged with a more serious offence but ultimately pleaded guilty to the offence of reckless causing grievous bodily harm, that offer ultimately being accepted by the Crown. The offer to plead guilty to that offence came quite late in the piece, at the start of what was to be a trial. Although there has been some submissions made by Mr McMahon that the discount should be more than 10% to reflect the utilitarian value of the plea because of the circumstance that the second trial would not have commenced anyway, I am satisfied that this was a late plea and that the sentence I will impose upon Mr Sullivan will thus be about 10% less than it would otherwise have been.

7. I said I would speak about the consequences for Mr McKay of the violence inflicted upon him by the offender. He had a number of facial bone fractures. They are consistent with a high energy force that are usually seen in patients who have been in motor vehicle accidents. The operation performed upon him on 28 June 2015 went for about eight hours, showing the complexity of his injuries. He has titanium mesh inserted to hold his facial bones together. He provided for the Court a victim impact statement. It was read by the prosecutor. He speaks of consequences for him which are both significant and entirely foreseeable. He has scarring. He has a changed appearance. He suffers from the loss of smell. He lost income and of course, not surprisingly there have been psychological consequences for him as well. He is no longer able to perform any activities which could cause further injury to his face and forehead. He is a father to a one year old boy. He has to be careful to avoid certain activities with his son as there have been times when he unintentionally hit him on the forehead. The consequences for Mr McKay of the offender’s single blow upon him have been significant.

8. The offender has no relevant criminal history, either here, or in Northern Ireland where he grew up. He has done much in his life for which he is entitled to be proud, including somewhat remarkably rescuing a person from a burning building. References tendered today speak highly of his underlying character. I accept that apart from this offence Mr Sullivan is of otherwise good character but his decision to punch Mr McKay while he was on the ground with such force as to cause the injuries which he caused was a seriously criminal decision indeed.

9. It is a fundamental rule in sentencing that the sentence imposed must reflect the objective gravity of the offender’s conduct. It is for this reason that there can only be one outcome of today’s sentencing proceedings, a sentence of full-time custody.

10. I find that the offence was in the middle of the range of objective seriousness. I say that for these reasons. As I have already mentioned, the injuries caused to Mr McKay were significant with ongoing consequences. Of course any offence involving grievous bodily harm will always involve serious injuries but the injuries in this case are extensive and ongoing. I take into account also in assessing the objective gravity of this offence that Mr McKay was on the ground when he was struck. In no way at all did he represent a threat to the offender. I take into account also the force with which the blow was delivered. I take into account that Mr McKay was attempting to prevent Mr Sullivan joining his two friends so that there would be three of them apparently intent on inflicting injury on a single person. Of course things could have been worse, Mr Sullivan could have hit Mr McKay twice, he could have kicked him while he was on the ground but it is not a mitigating feature of this offence that a more serious offence was not committed.

11. Mr McMahon in his submissions referred on a number of occasions to this offence being provoked. I do not think that that is an entirely accurate way of describing what occurred here. Indeed part of what motivated Mr Sullivan to hit Mr McKay while he was on the ground was, as the offender told a psychologist, ‘anger’. It is not consistent with the concept of provocation as I understand it that a person who is attempting to prevent a situation where three people would be involved in an altercation with a single person and thus pushes someone away from the scene to say that what is occurring there is provocation.

12. There is a standard non-parole period of four years for offences of this kind and a maximum penalty of ten years imprisonment. I have taken into account both the standard non-parole period and the maximum penalty in determining the appropriate sentence to impose upon the offender. My reasons for not imposing the standard non-parole period appear in these remarks on sentence.

13. Tendered today was a letter indicating that Mr Sullivan is likely to be deported. That fact is irrelevant to me.

14. Also of limited relevance is the fact that he might have to pay a significant sum of money by way of compensation for his criminal action.

15. I should mention one matter, the concept of parity, Mr Sullivan’s friends were dealt with but they were charged with different offences which were dealt with initially in the Local Court and appealed to this Court. Although the principles of parity clearly apply there were some significant differences between this offender on one hand and the two others on the other hand, such that I can quite understand why Mr McMahon made no reference to parity during his submissions.

16. Mr McMahon conceded that a custodial sentence of some form was required. He asked me to consider that a sentence of two years or less could be imposed. I am satisfied that such a sentence would not reflect the objective gravity of Mr Sullivan’s misconduct. The result is that there is no alternative to full-time imprisonment available.

17. There are special circumstances in this case, they arise from the circumstance that this is Mr Sullivan’s first time in custody and that he would be assisted by an extended period of supervision on parole at the conclusion of his non-parole period.

18. Mr Sullivan spent one day in custody so the sentence I impose upon him will date from yesterday.

19. The offender is sentenced to imprisonment.

20. I set a non-parole period of two years to date from 25 October 2018 and a head sentence of four years.

21. The non-parole period will expire on 24 October 2020 upon which day Mr Sullivan is eligible to be released to parole.

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Decision last updated: 05 December 2018