R v Timothy James Doyle

[2010] NSWDC 307

CITATION:	R v Timothy James DOYLE [2010] NSWDC 307
JUDGMENT DATE:	10 November 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The offender is sentenced to 100 hours of community service.
CATCHWORDS:	CRIMINAL LAW - sentence - assault occasioning actual bodily harm in company - plea of guilty - reasonably serious example of this kind of offence - no relevant criminal history - pre sentence report - s 9 bond not appropriate because of seriousness of offence - young offender - good prospects of rehabilitation - community service order 100 hours
LEGISLATION CITED:	Crimes Act 1900 s 59(2) Crimes (Sentencing Procedure) Act 1999 s 9
PARTIES:	Regina Timothy James Doyle
FILE NUMBER(S):	2009/227578
COUNSEL:	Mr Robinson for Mr Doyle
SOLICITORS:	Mr Thompson for the ODPP

JUDGMENT

SENTENCE

HIS HONOUR: Mr Doyle, I am going to sentence you now. What I have got to do first is to talk about the case and I say what you did and things like that and that will take about twenty minutes or so and then in the end I announce what the sentence is going to be. Do you understand that?

OFFENDER: Yes.

1. I am sentencing a young man who joined in a violent attack on a complete stranger who, the young man mistakenly thought, had assaulted the young man’s mother. In fact the stranger had acted as a good Samaritan and had assisted his mother after she had fallen over. The sentence I impose on the young man has to reflect the seriousness of the assault but also take into account his youth and prospects of rehabilitation.

2. The young man’s name is Timothy James Doyle. He turned twenty earlier this year. He pleaded guilty to an offence called assault occasioning actual bodily harm in company. That is an offence against s 59(2) of the Crimes Act 1900 and carries a maximum of seven years imprisonment. I have already convicted Mr Doyle of that offence.

3. It is important for a judge, before the judge sentences an offender, to set out briefly what happened in the crime which the judge is sentencing the offender for and to make some assessment of how serious an example this particular offence was of that crime.

4. In this case in the early hours of the morning on 26 April 2008, Glenn Harper and Pamela Harper had left the Katoomba RSL. As they were walking through the car park they came across a woman on the ground who was bleeding from the nose and unsuccessfully trying to stem the flow. She was obviously drunk and had fallen over which brought about the injuries. The woman’s name was Joanne Allan. Glenn and Pamela Harper came to the assistance of Ms Allan. She did not want to go to hospital. She wanted to be taken home.

5. Glenn and Pamela Harper drove her home. They dropped her off at her home in Katoomba and watched her walk down the driveway. A short time after, Ms Allan was taken to Katoomba Hospital.

6. In the meantime, as they were driving to their home, the Harpers heard a phone ringing in the back of their car. It turned out that Ms Allan had left her phone in the handbag in the car. The caller was angry and demanded to know what they had done to the caller’s mother and also why the Harpers had the caller’s mother’s phone. The caller was Daniel Doyle who is the younger brother of Timothy Doyle.

7. Glenn Harper dropped Pamela Harper home and then went back to Joanne Allan’s house to return the handbag. Daniel Doyle was there with a few of his mates. He took the handbag into the house, but then Daniel Doyle accused Glenn Harper of hitting his mother. Daniel phoned his brother, Timothy Doyle, and told his brother that his mother had been bashed and that the offender was still there.

8. Tim Doyle went around to his mother’s place and found Glenn Harper and his young brother arguing. Tim Doyle confronted Mr Harper and said, “Why did you hit my mother?” He followed that by punching Glenn Harper in the face. Mr Harper fell to the floor. Mr Harper tried to get outside the house and was kicked in the hip by one of the young men present. He was told to “go on, piss off.” He drove home.

9. Mr Harper was injured by this assault. He sustained muscle damage to his left shoulder. His chin was grazed and his head was bruised. More significantly he sustained an undisplaced fracture in his scapula. He had minor pain in this left shoulder for some months.

10. Mr Robinson of counsel, who appears for Timothy Doyle in these sentence proceedings, submitted that this is a reasonably serious example of this kind of offence. I regard that as an accurate assessment of the seriousness of this crime.

11. Another thing which is important for a judge to do is to refer to an offender’s personal circumstances before the judge sentences the offender so the judge can take into account matters which relate personally to the offender.

12. In this case Mr Doyle has only one matter on his criminal record which is a negligent driving offence which occurred late last year. It is not the kind of offence which has any impact on my sentencing.

13. Helpfully there was prepared a presentence report by the Community Offender Services of the Probation and Parole Service. It recorded that Mr Doyle is single and lives with his father. He has a nine month old baby from a relationship of some twelve months which is no longer in place. His own parents separated and he remained with his father and then went to his mother’s home for some years before moving back with his father.

14. He completed Year 9 and is currently undertaking his School Certificate, that is year 10, through TAFE. He has been employed as a labourer for three and a half years. He has, the report indicates, suspended his employment until his court matters are finalised and he is on an Austudy allowance.

15. He commenced drinking as a teenager and that drinking became problematic. He started using cannabis at seventeen but ceased, sensibly, after a year.

16. He told the Probation officer that at the time that he committed this offence he believed his mother had been assaulted. He told the Probation officer that he felt “remorse for the victim and regretted his actions at the time.” The report noted that he appears to be stable regarding his accommodation, family support and associates and also noted his education and employment prospects; it thought him unlikely to require supervision and regarded him as suitable for a community service order.

17. Mr Robinson called his client to give evidence this morning. He agreed with the facts which were part of exhibit A tendered by Mr Thompson, who appears for the prosecution. He also agrees with what was said in the presentence report. He confirmed that he had been told that Glenn Harper had assaulted his mother and that he did not know Glenn Harper. He expressed his remorse here in court. He explained that he was at the time regarded as the eldest male in the home and was, in a sense, protecting his family.

18. Mr Doyle has had a job as a contractor which was steady. He told his boss about his court problems and the boss suggested he finish work but resume once the court cases were completed. He is wanting to qualify for his excavator licence and wants to work with machinery. He acknowledged in cross-examination that when the offence occurred Daniel and two or three of Daniel’s male friends were at home at the time.

19. Mr Robinson acknowledges the seriousness of the offence and, as I said, I accept his submission that it should be categorised as a reasonably serious offence. Mr Robinson placed emphasis on his client’s youth, pointing out that his client was just a couple of weeks over eighteen years old when he committed this offence, that is, he had ceased to be what the law regards as a child only two weeks earlier. Mr Robinson referred to the fact that his client had no previous convictions and asked me to take into account the emphasis on rehabilitation for a young offender because of the inclination for them to act irrationally, particularly young men. He drew my attention to his client’s remorse and his client’s prospects in the future so far as were indicated by his education and employment.

20. Mr Robinson submitted that a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 would be an appropriate sentence in this case, probably without the need for supervision. It might be accompanied by a fine. He acknowledged that the case would also be suitable for a community service order.

21 Mr Thompson acknowledged that youth was relevant as a factor for a sentence in this case but pointed to the aspect of vigilante justice which accompanied this crime and the significance of the injuries. He emphasised the need for general and special deterrence so that others would not be tempted to take the law in their hands and nor would Mr Doyle.

22. I have a determined that a bond under s 9 would not be an appropriate sentence in this case. That is mainly because of the seriousness of the offence. It carries a maximum of seven years imprisonment and also because of the reasonably serious nature of the injury. It resulted in a fractured scapula so far as the victim was concerned. It was also, of course, completely unprovoked.

23. I have in mind that the appropriate sentence will be to impose a community service order. I have consulted the statistics issued by the Judicial Commission. Another reason for regarding something less than a community service order namely, a bond, as inappropriate is that it appears to me that in over eighty percent of cases where District Court judges have sentenced someone for this offence they have imposed a community service order or a more serious sentence. Even in the Local Court some sixty-eight percent or nearly seventy percent of offenders received a community service order or something more serious.

24. I have looked at the length of the community service orders imposed, as revealed by the statistics, and I regard - taking into account Mr Doyle’s youth and his good prospects of rehabilitation and also his plea of guilty - 100 hours of community service as an appropriate penalty.

25. I am going to sentence you now Mr Doyle, if you would stand up. Instead of imposing a sentence of imprisonment on you Mr Doyle I make a community service order directing you to perform community service for 100 hours.

HIS HONOUR: What other orders do I need to make Mr Thompson and Mr Robinson?

ROBINSON: That Mr Doyle report to the Probation and Parole Service at Penrith within seven days.

HIS HONOUR: Thank you.

26. The second order is that I direct you, Mr Doyle, to report to the Probation and Parole Service at Penrith on or before Thursday of next week which is 18 November 2010.

HIS HONOUR: Now what other orders do I need to make?
THOMPSON: The only other order your Honour is that the Penrith office will be the supervising officer for the term of the community service order.

27. I note that the Penrith office of the Probation and Parole Service will be the supervising office for the purpose of discharging the community service order.

THOMPSON: That’s all your Honour, thank you.

28. Mr Doyle, you have heard what I have said. You did a very silly thing but you had just turned 18 and I have taken into account what Mr Robinson said about that, that you attacked this bloke whilst there were other people there and he got a broken arm or a broken shoulder as a result. I regard that as serious and so does Parliament. But that is why I have not given you a bond. I think it is more serious than a bond. But I have given you a 100 hours of community service to do which will take you a bit of time but hopefully will not interfere too much with your commendable efforts at doing your School Certificate and getting your licence for an excavator. The maximum I could have imposed was 500 hours, so bear that in mind. And I was vacillating between 150 and 200 but given your youth I regarded 100 as appropriate and also taking into account the fact that you can get on getting some work. Do you understand that?

OFFENDER: Yes.

HIS HONOUR: All right; good luck.

OFFENDER: Thank you very much.

HIS HONOUR: My associate thinks he may have to go to the Registry?

THOMPSON: Yes.

HIS HONOUR: Okay, there you go. Thanks for you help Mr Robinson.

ROBINSON: Yes, thank you your Honour.

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