R v Sullivan, Anzac

[2010] NSWDC 333

CITATION:	R v Sullivan, Anzac [2010] NSWDC 333
HEARING DATE(S):	12/11/2010 & 19/11/10
JUDGMENT DATE:	26 November 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted - Sentenced -15 months non-parole period - balance of term 9 months.
CATCHWORDS:	Criminal Law - Sentencing - Recklessly wound - domestic violence - alcohol and drug related - use of bottle to inflict wound - 2 cm laceration - failed s.11 bail - review of offender's s.11 bail history - 27year old single male - some family support - lengthy custodial record - quasi custody allowance made.
PARTIES:	Regina (Prosecution) Anzac Sullivan (Offender)
FILE NUMBER(S):	2009/6929
SOLICITORS:	Crown: Mr A Raymundo Defence: Mr S Rajan

JUDGMENT

1. Domestic Violence is not unknown at any level in Australian society. As with other forms of violence it has long been associated with alcohol and drug abuse. Within the various communities and community structures there are pockets where the occurrence of domestic violence is of greater intensity, areas of socio-economic stress constitute one such example, or where alcohol and drug abuse are rife, violence also reigns.

2. Aboriginal communities, particularly Aboriginal communities where there are serious socio-economic factors at play, are hot houses of domestic violence. Common to the past history of Aboriginal and white cultures is an attitude of male dominance over females. But in the twenty-first century women from both cultures have made it known that past mores are no more and in particular the chastisement of or violence towards women is no longer to be tolerated in Australian society regardless of any past cultural affinity for the caveman approach to women.

3. In modern times women, I focus here particularly on Aboriginal women, have made it clear they will no longer tolerate violence. Women who report domestic abuse must be seen as the courageous heroines they are. In the past they did not seek treatment, today more and more are doing so. In the past, they did not seek police assistance. Today, more and more are doing so. In the past, they would not come to court. Today, more and more are doing so. Each of these steps requires great courage because it exposes the dysfunction in their own life. Each of these steps is an important step forward in stamping out domestic violence. Each is a step toward the detection of domestic violence. Each is a step towards making the men accountable for their conduct towards their women.

4. SD is one of those courageous women. She and Anzac Sullivan had been in a - (I take these remarks from my remarks of Wednesday 2 September 2009 in the Broken Hill District Court) - he and SD had been in a de facto relationship for about four years. There was a two year old daughter from that relationship, that figure of two may be wrong then, and I understand that little girl is four now.

5. On 15 January she had been drinking beers with three other people. The four of them managed to consume four cartons of beers. She says that she drunk about twenty-four of them. After 3 o'clock on the morning of the 16th she returned to her home. She noticed the offender sleeping on a mattress on the front porch. He woke up and said something to her. He was also intoxicated. He believed that she responded harshly to him. He walked into the house, picked up a sauce bottle, and pointed it in her direction. It was his case he intended to tap the bottle on her head to indicate that he was not happy being told off by her. It certainly connected with her forehead. He was reckless. She started to bleed. The sauce bottle fell onto the floor and did not break. On seeing the blood he panicked and left home. She was able to go to hospital. She walked there. She was treated by a registered nurse.

6. The nurse noted a 2 centimetre laceration, which she treated with three stitches. Police attended. She pointed to Mr Sullivan as the person responsible. She did not want to make a formal statement about the matter but the next day he was arrested. He was conveyed to Wilcannia Police Station charged and remanded in custody. He was in custody since his arrest on 17 January until 10 September when he left custody to go directly to Orana Haven Rehabilitation Centre.

7. At the September sittings in Broken Hill last year, Sullivan was arraigned upon two charges that on or about 16 January 2009 at Wilcannia in the State of New South Wales he wounded SD with intent to do her grievous bodily harm and in the alternate that on or about 16 January 2009 at Wilcannia he recklessly wounded SD. He pleaded not guilty to the first matter and guilty to the second. That plea was accepted in full satisfaction of the indictment. It was at this point that Anzac Sullivan formally accepted responsibility for his criminal conduct and began the process of being held accountable for it.

8. He had been in custody by the time of his plea for almost eight months. I recorded in remarks I made on 2 September para 5, the first thing that struck me about this offender when I looked at his record was that Anzac Brian Sullivan had spent most of his adult life in custody. This twenty-five year old man, was letting the best years of his life whiz by him on the outside while he was sitting on this occasion in a gaol in Broken Hill. He had been to other gaols in New South Wales - Junee, Bathurst, Cessnock, Parramatta, Ivanhoe and to that I can now add the Metropolitan Remand and has been able to see the surrounding country, I guess, through the windows and bars of those various institutions. But that is not quite the same as being free and seeing those places from the outside.

9. His adult custodial history started in June 2002 with a couple of days here and there. By the end of December 2002, he was serving a six-month sentence. He was released on 3 July 2003, seven days later he was returned to custody where he remained for fifteen months. He was released on 2 October 2004, six weeks later he returned to custody for another three months. There is then a gap of five months and he returned for two. A gap of two months and he returned to custody for ten. Out for a four months breather before two more months in custody. Within eight weeks he was doing another ten months inside. There was another break of five months before he returned to custody for four months. A further four months. By the time he was released from prison on this occasion it was 18 November 2008. Within two months of that release he was returned to custody on the matters that I am dealing with on 17 January 2009.

10. What then is the nature of his offending conduct as an adult that sees him continually returned to custody? Primarily his conduct relates to violence. For example, common assault, contravene domestic violence order, destroy or damage property, assault police and the like. There is also a Children’s record that reflects a youth out of control.

11. It is clear from the nature of his offending that almost all of his offending is drug or alcohol or both related. Custody is at best a blunt instrument for converting antisocial behaviour such as violence into behaviour that fits within normal social norms. One can but wish that in the twenty-first century we could harness other methods of addressing the real issues causing violence within domestic relations. Allocation of resources to address causes of antisocial conduct with a view to minimising that conduct is known as “Front End Loading.” Regrettably, the law is left to deal with the consequences of antisocial conduct, that is, “Rear End Loading” that is the resources are pushed to deal with the end result of the antisocial conduct that the social programs properly implanted may have avoided.

12. Of course, on any view of the violence of the order exhibited in this case is antisocial conduct. Given the nature of it and that he is before the courts, the law requires that the offender must be held accountable with the blunt methods we have available.

I noted on 2 September 2009,

“The pity about Anzac Sullivan is that to look at him he appears a very personable, articulate, self possessed young Aboriginal man. He appears to have two sets of skills. One set of skills was his people skills which he displayed in gaol. (At that time I was speaking about Broken Hill Gaol). He has a position of responsibility in the gaol as, I think it is called, the liaison officer for prisoners. In that role with some enthusiastic support I might say from the Corrective Service officer who was here at the time he said he would give himself 10 out of 10 for the work he was doing in liaising on behalf of the prisoners

...the other set of skills he has are some skills in horticulture that go beyond the average man skills of knowing when to mow a lawn”.

It may be that his injury to his leg which needs an operation may inhibit his capacity to do that sort of work. Although he did not tell me when he first gave evidence he also has skills with the acoustic and base guitars. For reasons I shall come to Sullivan is housed at the prison hospital within the Long Bay prison complex. He has joined a music class in the thirteen wing LBH2 and recorded six original songs to CD with what his music teacher, Maurice Cook, describes as professional results and quality. One of the tracks was played during evidence on 19 November last. Having heard that track I see no reason to disagree with his teacher’s assessment.

13. The further skills included writing lyrics and music, the music teacher has identified a creative talent which, if pursued, could give Sullivan not only an income and possibly status but the satisfaction that comes from creating something worthwhile. He also plays the didgeridoo.

14. When in Broken Hill I canvassed with both legal representatives whether Mr Sullivan should be given an opportunity to demonstrate that he could rehabilitate to break the cycle of being out for a little while then going back to prison for some stupid offence usually caused by alcohol. Both counsel indicated that they saw this as an appropriate outcome. Sullivan, himself, had indicated a willingness and enthusiasm for doing this.

15. At the time I noted that “given his record” I must necessarily be concerned about the safety of the community. Most of his offences are offences against other community members so I have to keep a close eye on him, which I intend to do. The general proposal was this, “that he go from prison on 10 September next to Orana Haven and accept all reasonable directions from that institution and participate fully in the various programs so that he can show me and more importantly show himself that he was able to rehabilitate in terms of alcohol and drug issues”. On 10 September 2009, Anzac Sullivan was transferred from the Correctional Centre at Broken Hill to Orana Haven outside Brewarrina. There he lasted until 25 November when he was discharged from the centre for smoking marijuana.

16. At approximately 8pm that evening he assaulted a female outside the Brewarrina RSL. His consumption of the marijuana, his failure to pass the urine test, his assault upon the female and his failure to maintain contact with Probation and Parole represented the several breaches of his s 11 bail conditions. In fairness, I should note that prior to his discharge he had complied with the rehabilitation regime at Orana Haven. The minimum period he agreed to stay there was three months, periods in excess of the three months were not inappropriate for rehabilitation and were allowed.

17. An arrest warrant was issued on 26 December 2009, he had been arrested and was admitted to the Wellington Correctional Centre. He appeared before me on 11 February 2010 from custody at the Dubbo District Court. Again, I was persuaded to restore the s 11 bail on condition that he reside at Waraku Rehab Centre. However, there was some difficulties relating to transport. He was ultimately released from custody on 1 March 2010.

18. I should note he gave an account that when discharged from Orana Haven of travelling to Dubbo and from there to Cobar and thence to Limber Station where he worked for $150 per day until a few days before Christmas. He claims to have had Christmas with his brother and father and was arrested the following day.

19. Upon release from Wellington he made his way ultimately to Bacchus House sobering up centre and thence to Waraku where he arrived on 17 March. He was asked to leave Waraku. In a letter dated 28 May, the manager, Keith Hampton, wrote:

“Anzac Sullivan is no longer a client at Waraku Rehabilitation Hostel as Anzac has different ideas on the way a rehabilitation hostel should be operating and we cannot come to an agreement so it is with regret that I have decided with the rest of the Waraku staff that Anzac is to be asked to leave the hostel.

In my earlier report, Anzac had made the most of his opportunities before he went to court in Wentworth on 14 May 2010 but since that day Anzac has changed his attitude towards Waraku and feels that I should let him stay in Mildura to get ongoing treatment for his leg and I have tried on several occasions to persuade Anzac to return to Waraku. I would have taken him to Mildura to receive treatment on the appointed times but he keeps saying ‘It is my call if he stays in Mildura to receive his treatment.’ But I believe Anzac is at risk if this happens as he has a past history of drug and alcohol abuse.

20. There was, in fact, perhaps an earlier indication that all was not going well. Sullivan was granted leave to attend a funeral in the Wilcannia community. He departed Waraku on 4 May, was directed to return on the 6th. Even though he had been accompanied by an employee and/or resident he failed to return as directed until Monday 10 May, that is, a couple of days before I was to see him on the 14th.

21. The report prepared for 14 May progress hearing was very positive noting Sullivan’s participation and drug and alcohol counselling, life skills, TAFE, mental health, courses and work about the rehabilitation centre. He obtained his white card, assisted in setting up a minor irrigation system, shed clearing and small mower maintenance. He was described as having leadership qualities something I have already referred to. Importantly, there was no complaint of drug or alcohol use but I should qualify that by saying there was no drug testing at Waraku either.

22. Again, Anzac Sullivan was in breach of his s 11 bail for leaving the rehab centre, failing to make contact with Probation and Parole. For a second time on 1 June I issued another arrest warrant. He was arrested on 1 September 2010 if I understand correctly at Lake Cargelligo where, if I understand, his father and brother live.

23. He was returned to custody. I think he was initially returned to custody at Broken Hill and he made his way via Wellington to the Long Bay Prison Hospital where I think he began being housed at about 8 or 9 September last. Before he left Broken Hill on 1 September 2010 the Broken Hill Local Court imposed a sentence of one month imprisonment upon him for the offence that had occurred in Brewarrina on 25 November last.

24. I should note the various breaches of bail and discharges from the rehabilitation centre do not make the criminality I am dealing with any greater. They do not impact upon any assessment I might have of the objective criminality of that offence. Its importance is directed to assessing the offender’s contrition, insight into his offending behaviour, and the contribution that alcohol and drugs have made to it. All of which point to his prospects of rehabilitation which become the more guarded because of these failures.

25. The breaches of bail must be seen in context. True, there is further offending but only the one instance. There were also two periods of substantial compliance with rehabilitation regimes within two different settings. He made a number of quite distinct progress markers, for example, his white card, the irrigation system, work about the place and a sustained abstinence from alcohol and drugs, even if it was not complete.

26. While I am satisfied he abused alcohol at the time of the assault in Brewarrina there have been no other reported episodes of his using drugs or alcohol and in his case that is remarkable.

27. Anzac Sullivan is twenty-seven years old, he will be twenty-eight in January next. In 2008, he was involved in a motor vehicle accident in which he sustained a broken tibia and fibula. For a relatively young man he is not in good physical condition. He has been housed at the Long Bay Prison Hospital now for more than two months. On 10 September this year he was at the Prince of Wales Hospital for “medical treatment” for an unspecified condition, which resulted in him not being able to attend court. It must have been significant because the custodial system always focuses on getting people to court if it is physically possible.

28. There is no report from the prison hospital or Justice Health as to the nature of his current indisposition or why he has remained in hospital in excess of two months. Such medical reports as I have are scant are dated. Arising from the motor vehicle accident are the fractures right tibia and fibula. This injury to his right leg has not resolved; nor, it would seem, is he accepting responsibility for its resolution. He refuses or seems to be unable to address the hospital needs he has. For instance, at Waraku he was relying on his address, he went to the hospital at Albury; but he blames them because they did not have the right equipment and he still has not yet, unless it is currently happening, received the remedial treatment he needs for his leg. In 2008, there was what was described as “almost anatomical alignment” of the comminute fractures of the tibia and fibula. Even so his capacity to walk is significantly compromised.

29. In July 2008, while he was still in custody, he was complaining of pain at the site of the fractures - complaints that seemed to me to be viewed by the nursing staff there as tainted with malingering - a proposition that I find in past cases, those administering health within the prison are too quick to come to. His evidence is, he still experiences pain at the site. So why would he not have had pain in July 2008 closer to the accident? He told Probation and Parole in October 2009 he was unable to walk long distances. He was walking with a noticeable limp. There is a radiology report from July 2008 so far as his spine is concern reporting displaced fractures involving the right C5 lamina and superior articular process of C6 also on the right extending to involve the C5/C6 joint. What, if any, incapacity or pain is arising from that injury site on his spine, or whether there are any other areas of the spine suffering because of unresolved fractures of his right leg, is not before me.

30. My understanding is both natural parents have passed, his father in 2000

and his mother in 2008 during one of his periods in custody. He was not permitted to attend her funeral. He is the sixth of eight children. His childhood was disruptive. Between the years of nine and eleven he was fostered with a non-indigenous man who had earlier fostered his brothers. I understand his brothers allege being sexually assaulted by the foster carer. Even though the offender denies he was sexually assaulted I would not rule it out that he may have been sexually assaulted. He went to a boys home in 1995 aged eleven. Growing up within his family, he saw a lot of violence between adults. He left school in Year 8. He says that he received most of his schooling within Juvenile Justice institutions.

31. In 2009, three of his brothers were in custody, a not unusual phenomenon in Aboriginal families. That is, four of the eight children in custody and two of them, I think, were girls so that means a high percentage of the boys were in custody. He speaks of visiting his father in Lake Cargelligo. I suspect that is a stepfather who, as I understand it, has diabetes and needs dialysis.

OFFENDER: He’s got dialysis.

HIS HONOUR:

32. My mistake, kidney problem and is in poor health needing dialysis. His relationship with the complainant in this matter is problematic. She is a drinker as I noted at the outset. When he drinks with her there is a serious risk of violence. His daughter is with a grandparent in Albury where he has stayed and enjoyed the child’s company.

33. I am satisfied there is family support from his brother who I think is Adrian, the stepfather and the grandmother. I am satisfied his commitment to the young child could be a positive rehabilitation motivator. However, there is demonstrated difficulty by him in complying with structural rehabilitation professionals, the significance of which I have already noted. He is not without skills. I noted he appeared more depressed on this last occasion when I saw him in the witness box than on prior occasions when I have seen him. He did become animated when speaking about his past success with music and his future aspirations. There have been other pathfinders before him who have seen custody and made their mark outside the prison walls in music. Whilever his injury remains chronic, active work is no longer possible. It may be for him the answer will lie in his creativity.

34. This offender’s custody includes ten months nineteen days of full time custody. He also spent two months fourteen days at Orana Haven and two months eighteen days at Waraku making a total of five months and one day in full time quasi custody for rehabilitation purposes. I am prepared to equate that to two months sixteen days equivalent to full time custody giving a total of thirteen months and five days custody.

35. Whilever the courts continue to deal with domestic violence offences such as this offence, where actual bodily harm has been caused, there is a call for general deterrence. Men, including Aboriginal men, must understand that where women are injured in a domestic violence thrashing, gaol is the most likely outcome. This offence constitutes a serious example of domestic violence, a sentence of incarceration is called for. I have sought to give an opportunity for and recognition of time spent in custody in the course of rehabilitation. I do not regard the effort as a total waste of time. Indeed, I have tried to highlight the positives that have come out of it. In the last fourteen months he has committed only the one assault. He has had substantial period off alcohol. He has spent five months out of custody. On his past history one offence in fourteen months is progress. Hopefully, he can do better when he released.

36. In the light of the allowances made for quasi custody and the granting of s 11 bail I do not propose to give any utilitarian discount for the plea in my view a substantial benefit for the plea has already been achieved.

37. The sentence I would have set was one of two years. That will be the sentence I will set. I find special circumstances, namely, his health needs and the advantage of his rehabilitation taking place in the community and such progress as he has already made in rehabilitation.

38. Anzac Brian Sullivan, you are convicted that you, on or about 16 January 2009 at Wilcannia recklessly wounded SD. I sentence you to fifteen months imprisonment to date from 20 October 2009 and to expire on 19 January next year, 2011. I set a balance of term of nine months to expire on 19 October 2011. I order you to be released to parole on 19 January next year assuming no other offences are keeping you in custody. I want you to spend the next little while making arrangements as to where you are going to live when you get out and I wish you good luck when you go.

oOo