R v Walsh; R v Dryer

[2022] NSWDC 363

District Court

New South Wales

Medium Neutral Citation:

R v Walsh; R v Dryer [2022] NSWDC 363

Hearing dates:

9 June 2022

Date of orders:

9 June 2022

Decision date:

09 June 2022

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See [43]-[45].

Catchwords:

CRIME – SENTENCE – ASSAULT OFFENCES – PROPERTY OFFENCES – Please of guilty entered for recklessly wound in company and reckless damage to property – Co-offenders assaulted the victim – Whether Intensive Correction Order appropriate – Additional order for payment of compensation for damage to property.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1990 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

Nil.

Texts Cited:

Nil.

Category:

Sentence

Parties:

R – Crown
First Offender – Tabitha Walsh
Second Offender - Alex Peter Dryer

Representation:

Counsel:
R – Mr Holden
First Offender – Ms Taylor
Second Offender – Mr Andersen
Solicitors:
R – Office of the Director of Public Prosecutions
First Offender – Graeme Morrison of Morrisons
Second Offender – Analise Ritchie of Morrisons

File Number(s):

2021/00066792; 2021/00066845.

Publication restriction:

Nil.

Judgment

Background

1. HIS HONOUR: The First and Second Offenders stand for sentence as a consequence of their pleading guilty to a charge that on 9 March 2021 at Barrack Point in this state, they did, while in the company of each other, recklessly wound Antony Franz. That is an offence contrary to s 31(3) of the Crimes Act 1900. Parliament has prescribed a maximum penalty of imprisonment for ten years. Parliament has also fixed a standard non-parole period of four years.

2. If the offenders had not pleaded guilty, and the matter had gone to trial, and they were convicted, and I found that the offence was in the mid-range of objective seriousness, then I would be constrained to impose the standard non-parole period of four years, which might indicate a head sentence of between five or six years.

3. The First Offender also stands for sentence for a crime of reckless damage to property, an offence contrary to s195(1)(a) Crimes Act 1900, which carries a maximum penalty of five years imprisonment. There is no standard non-parole period for that offence. A charge of reckless damage to property can, of course, cover a large number of different crimes, a large number of different circumstances, and the extent of the damage proportionate to the value of the property that was damaged. Some damage to property can cost millions of dollars. There is no suggestion of such in the present case.

The agreed facts

4. The offenders have agreed to the facts upon which they are to be sentenced. The First Offender and Mr Antony Franz were in a relationship for approximately four and a half years. According to an affidavit affirmed by the First Offender on 8 June 2022, they commenced that relationship in May 2016 when she was 18 years old, and Mr Franz was 47 years old. She believed that her relationship with Mr Franz ended in May 2020. However they maintained contact until about October 2020, which was the last occasion that Mr Franz encountered her prior to the events of 9 March 2021. There is no dispute about the fact that there had been no contact between Mr Franz and Ms Walsh since October 2020, immediately prior to the offence on 9 March 2021. After ending her relationship with Mr Franz, Ms Walsh commenced her relationship with her co-offender, the Second Offender.

5. On the afternoon of 8 March 2021, the offenders travelled from Jerrys Plains, which is near Singleton, to the Wollongong area and checked into a motel. During the evening they attended a beach and consumed alcohol. Later that evening, the First Offender was playing music on her Spotify account. Whilst that was occurring, the songs were being changed. The First Offender believed that Mr Franz was accessing her Spotify account and deliberately changing the songs.

6. Mr Franz resided in a caravan in the Surfrider Caravan Park at Barrack Point. As I understand it, the First Offender was familiar with that residence of the victim because of her having lived there prior to the ending of her relationship with the victim. The First Offender then drove with the Second Offender to the caravan park and parked on Junction Street. They then walked to the victim’s caravan. The victim, Mr Franz, was seated on his bed, and the sliding door to the annex to the caravan was open. The victim had returned home from work at approximately 11.54pm.

7. Sometime shortly after midnight on 9 March 2021, the First Offender entered the van, followed by the Second Offender. Their attendance was not expected by the victim. The First Offender had given him no notice of her intention to visit. She yelled at the victim about his allegedly accessing her Spotify account. The victim reacted by punching out at both First and Second Offenders. The victim wrestled with the Second Offender, who had moved to assist the First Offender. A fistfight then developed between the Second Offender and the victim. That fistfight spilled out of the caravan and its annex. The victim fell down stairs and landed against his daughter’s vehicle, which was parked near the bottom of the stairs. The Second Offender punched the victim several times in the body and head. The victim also punched the Second Offender.

8. The victim picked up a large, thick, stick and swung it at the Second Offender, connecting with his head. The Second Offender managed to wrestle the piece of wood from the victim and used it to strike the victim on the head. Meanwhile, the First Offender had obtained a chilli sauce bottle from within the caravan, and while the victim was trying to fight off the Second Offender, the First Offender ran out and hit the victim on the head two or three times with the chilli sauce bottle.

9. As a result of that interaction, that is, the Second Offender’s using of the piece of wood, and the First Offender using the chilli sauce bottle, the victim suffered a ten-centimetre right frontal scalp laceration. He also suffered a five-centimetre wound to his chest, which was inflicted by the First Offender. In addition to the ten-centimetre right frontal scalp laceration, the victim also had two other lacerations in the scalp, one of which was five centimetres long, and the other of which was four centimetres long. The Second Offender then yelled out to the First Offender “let’s go”, ending his involvement in the offending.

10. The victim commenced to walk towards the caravan occupied by Steven and Michelle Trew, who are friends not only of the victim, but also of the First Offender. The First Offender followed the victim to the Trew’s veranda. She was carrying a knife and was swinging it whilst yelling at the victim. Steven Trew disarmed the First Offender of the knife. The Second Offender then pulled the First Offender away and they left the caravan park, and returned to the First Offender’s vehicle. However, the First Offender then drove the car into the caravan park, through the boom gates, and revved up the engine whilst stationary outside the Trews’ caravan. That appears to have been some gesture of intimidation or annoyance.

11. During her driving, the boom gate was damaged as the First Offender collided with it when driving her vehicle into the caravan park. The damage to the boom gate is the subject of the charge under s 195(1)(a) Crimes Act 1900. Shortly thereafter, police arrived and arrested both the First and Second Offenders. The victim had to be treated at Wollongong hospital for his wounds.

12. I have a little familiarity with the aftermath of this wounding, because I commenced a trial on 16 May 2022 and was required to make a number of evidentiary rulings prior to the commencement of the trial proper. One of the applications concerned the giving of the victim’s evidence by the playing of a DVEC, which was recorded by the police in the emergency room of the Wollongong hospital.

13. The wounds can be seen on the victim’s head, their having been treated. However, it is quite clear that the victim had suffered no brain damage or the like. He was quite coherent and able to give his interview to the police while still under care in the emergency department. In other words, the wounding was not severe. There is no medical evidence currently before me. The inference to be drawn is that the victim fully recovered from his injuries without any ongoing sequelae.

The First Offender’s antecedents

14. The First Offender had no prior criminal history. The police report before me tells me that she was convicted of driving with a high-range Prescribed Concentration Alcohol (“PCA”), and that the offence occurred on 9 March 2021. Clearly that offence was that detected by the police when she drove her vehicle from Junction Street, into the caravan park when the boom gate was damaged. There is a subsequent offence, which is of no moment.

15. The First Offender completed her Higher School Certificate at Maitland High School in 2015. Since leaving school, she has worked in restaurants and bars, as a process worker in factories, and also as a retail assistant in stores. Currently, she does not know what her long-term career might be. She is currently working at the Royal Hotel at Denman, and there is in evidence a reference from her current employer at that hotel, Mr Mark Zizza, who expresses the view that she is “honest, friendly and [a] reliable employee.” He describes her as an asset to his business. He confirms that the offender has worked at the Royal Hotel at Denman for over 12 months as a waitress. In her affidavit, the First Offender tells me that her employment is casual, but her hours vary between 35 and 50 hours a week. She also tells me that she really enjoys her job.

16. It is clear, not only from her affidavit but also, from Exhibits S5 to S8, that her relationship with the victim was a very rocky one, and was marred with incidents of domestic violence, in which she was the victim. That, of course, does not give the First Offender any right to assault or wound the victim.

17. Her affidavit tells me that it was not her intention to cause him any harm when she went to his caravan to remonstrate with him about the use of her Spotify account. But she does admit she was not thinking clearly on the night of the offence, and the fact that her blood alcohol level was so high is indicative of that lack of clear thinking.

18. Arriving after midnight without any warning and immediately shouting out at the victim would not have endeared her to him, and when the victim saw two people entering his residence without his permission, one can understand that he sought immediately to defend himself, believing that he was under attack.

19. It appears likely to me that the Second Offender became involved because he perceived that his girlfriend, the First Offender, was being attacked by the victim. It has been submitted on the First Offender’s behalf that this was an attempt at “self defence”, albeit the response by her was not proportionate to the offence, the offence being merely a belief by the First Offender that, in some way or other, the victim was manipulating her Spotify account. That may have been from her muddled thinking due to her alcohol intake.

20. However, the fact remains that the First Offender at the time of the offending was aged 22. The victim was a much older man. She had been in a relationship with him, which was marred by domestic violence, and she comes before the Court as having been a lady of prior good character.

21. There is one other mitigating factor, and that is this: there is now medical evidence before me that, as a child, the First Offender suffered from Attention Deficit Hyperactivity Disorder. She was diagnosed with that at the age of 11 and was placed on Ritalin. She took that medication until she left school. During her relationship with the victim, she was not on any medication for that condition. The condition has persisted. After her relationship with the victim ended, she saw a general practitioner who prescribed medication for her, and helped her reduce her alcohol intake, which she appears to have taken to in order to assuage her anguish about her rocky relationship.

22. The First Offender is now under the care of a psychiatrist, Dr Baruah, who on 11 May 2022 changed her medication from Dexamphetamine to Lisdexamphetamine, a more long-acting variant of that stimulant medication. In recent times, he has also given her advice about living a healthy lifestyle, having a healthy diet, doing exercise, and making sure she has good sleep hygiene. The First Offender remains under his care.

23. The First Offender is the youngest of five siblings. Her sister, Madeleine, is the second youngest of the five. She has provided a reference. She has qualifications in accounting, is 30 years old, has a partner, and has two children. She resides in Denman, where the First Offender currently lives with the Second Offender. They are only five minutes apart. Madeleine and the First Offender have contact with each other at least four times a week.

24. She describes her sister as “energetic, honest, reliable and trustworthy”. She certainly appears to approve of the First Offender’s relationship with the Second Offender, describing her as “a very stable, loyal partner to her boyfriend Alex as she is a great communicator and is very in touch with her emotions.” Ms Madeleine Walsh ended her reference by saying that in her view, the action the First Offender on the evening now in question, 9 March 2021, was “definitely out of character.”

The Second Offender’s antecedents

25. At the time of the offending now in question, the Second Offender was twenty-seven years old. He is now, if my mathematics be correct, 28 years old. Unlike the First Offender, he has a criminal history. In itself, it is not of particular significance, except that it tells me that the Second Offender committed this offence while he was bound to be of good behaviour because he was under a Community Corrections Order.

26. On 11 June 2015, he drove a motor vehicle whilst there was present in his blood an illicit drug. For that, he was dealt with under s 10 Crimes (Sentencing Procedure) Act 1999, and received a bond to be of good behaviour for six months. However, less than a month later, on 3 July 2015 he committed exactly the same offence, and on this occasion, received a fine and was disqualified from driving for three months. He committed a minor driving offence on 1 February 2018, for which he was fined. On 5 December 2019, he was pulled over by the police, and they found in the vehicle which he was driving a prohibited drug and two prohibited weapons.

27. The first prohibited weapon was a butterfly knife, and the second prohibited weapon was a flashlight taser. The drug was a half a gram of methylamphetamine, valued by the police at $200. The Second Offender told the police at the time that they conducted the search that he purchased the butterfly knife and taser flashlight on eBay, so he could take them camping.

28. I understand from what I have been told by Counsel, which I am happy to accept, that neither weapon was of any great moment and indeed the taser was in fact inoperable as a taser, although operable as a flashlight. The police had pulled the Second Offender over because they thought his driving was a little bit erratic, and then decided to conduct a search when they believed that his body language, while they were talking with him, indicated that he had some apprehension because he “was physically shaking and appeared nervous.”

29. Those offences are of little moment, as I have already said. However, for those he appeared before the Local Court at Singleton on 28 May 2020 and was placed on a Community Corrections Order for the two prohibited weapons offences. That order was for a period of 12 months, commencing on 28 May 2020 and expiring on 27 May 2021. He was fined for the possession of the drugs. However, the Community Corrections Order, as I said, required him not to commit any offence, and he committed this offence whilst bound by the Community Corrections Order. That is clearly an aggravating factor which I must take into account.

30. The Second Offender is now working for an organisation which goes under the name of Lucas. There is in evidence a reference from the area manager of that organisation. He tells me that the Second Offender has been employed for three months working as an assistant driller in the coal mining industry in the upper Hunter Valley. The area manager comments on the Second Offender’s “excellent work ethic.” He goes on to say this:

“Alex is honest, reliable, and shows initiative. He’s an asset to our team, and I look forward to seeing what the future holds for this young man.

He possesses a happy and outgoing attitude which increases the morale amongst employees.”

31. In the final paragraph of his reference, the area manager, Mr Behsman, tells me that he has discussed the seriousness of the current offence with the Second Offender and he went on to say this:

“[I]t seems to be out of character for him. Alex has shown immense remorse. Alex will continue to be a valued employee in our business.”

32. There is also in evidence a letter from his mother, who resides at Hat Head on the NSW mid-north coast. In her reference she said this:

“I am aware of the charges against Alex, but this incident is very much out of character for him. I am aware of his criminal history that is before you today, for the stupid mistakes he has made in the past. He does not normally have a violent nature.

Alex is a very loving person, he is kind and caring, with strong family moral principles. Alex is an extremely hard worker and since the incident has advanced in his career. His newly acquired position will see him become a Trainee Driller, which soon could see him excel within the mining industry.”

33. The balance of the reference goes on to ask me to take in consideration the Second Offender’s new employment contract, and what that holds for him. I am well aware of conditions in the coal mining industry in the Hunter Valley. The earnings made by coal miners are considerable, and a work as a driller offers the Second Offender a long-term career prospect in the mining industry, safe employment whilst coal continues to be mined, and prospects of change in venue, change in roles, for example, moving to operating other plant and equipment, and the prospect at one stage of becoming a deputy in the mining industry.

Judicial commission statistics

34. Of offences contrary to s 35(3), the judicial commission statistics tell me that there have been 88 cases, 17 of those cases have been the subject of an Intensive Correction Order. 70 cases were the subject of a sentence of full-time imprisonment. The one other case was dealt with in the Children’s Court.

35. Of those sentenced to prison, the 80% range, that is cutting off the bottom 10% and the top 10% of sentences, is a range of two years to four years imprisonment, and the range of non-parole periods is between one year and two and a half years. Of those who have been dealt with by an Intensive Corrections Order, the range of sentences is between 16 months, and 30% of the cases have incurred an Intensive Corrections Order of greater than 24 months, which means that there must have been a second offence that was taken into account to be able to impose an ICO for a period of greater than 24 months.

Seriousness

36. For an offence under s 35(3) the important considerations are the way in which the wounding was inflicted, and the extent of the injury suffered by the victim. Here the extent of the wounding is not particularly great, considering that there has been a full recovery within what would appear to be a relatively short time. However, this offence could not be described as being at the bottom of the range, but I would place it just below mid-way, between the bottom of the range and the mid-range.

The First Offender’s sentence

37. In the First Offender’s case, I start with a head sentence of two years imprisonment. It is accepted that she is entitled to a 10% discount for pleading guilty to the offence to which she pleaded guilty when the matter was before me on 18 May 2022. I commenced a trial on 16 May 2022, which required me to make a number of interlocutory rulings, but on 18 May 2022, the Crown presented an ex officio indictment to which each of the offenders pleaded guilty. The First Offender’s plea of guilty to the recklessly damaging property had been entered when she was first arraigned in the District Court on 26 October 2021. If I reduce 24 months by 10% and round it down, as I must in favour of the offender, that gives me a head sentence of 21 months imprisonment.

37. For the s 195 offence, the First Offender is also entitled to a 10% discount. The cost of rectification of the property damage was a little over $1,500.00. Doing the best I can and accepting the First Offender is entitled to a 10% discount, I believe the appropriate penalty to impose would be a fixed term of two months’ imprisonment. The total of those two sentences is 23 months.

38. The question then becomes “how should it be served?” By way of a full-time custodial sentence, or by way of an Intensive Corrections Order? Here, I do not believe on the evidence before me that the First Offender is a danger to the community. An Intensive Corrections Order would best accommodate the interests of the State, of our community, and the interests of the First Offender. She will be able to continue her employment and her relationship with the Second Offender. Sending a 24-year-old young woman to gaol is something that should be avoided if it can be, and here that can be done. The First Offender has been certified by Community Corrections as to be suitable for a Community Corrections Order, and the Service are able to offer 21 hours of work per month to the First Offender.

The Second Offender’s sentence

40. Turning then to the Second Offender’s case, underlying his sentence must be parity, that is that he and the First Offender committed the same offence and theoretically they should be given the same sentence. However, the Second Offender was bound to keep the peace, not to commit any offence, by way of a court order, and he failed to observe that important court order. He was the first to inflict what might be thought to be the wounds suffered by the victim.

41. In the Second Offender’s case, I start with a head sentence of two years and six months imprisonment. However, that must be reduced by 25% because that is the agreed discount between the Second Offender and the Crown, because of certain circumstances that I need not discuss. That 25% should be rounded down in the Second Offender’s favour, such that the head sentence becomes imprisonment for 22 months, which is less than two years, so that in his case an Intensive Correction Order can also be considered.

42. I accept that the Second Offender is not by nature a violent man, prone to committing offences of violence against others. I accept that the offence was out of character. He, in my view, does not represent any threat to the community, and the community’s safety will not be endangered by his being placed on an Intensive Corrections Order. Rather, the imposing such an order is likely to advance the interest of the State and of the Second Offender himself. He can continue with his traineeship as a driller, and make his way in the mining industry, and build himself a career in that industry if that is what he wishes, as well as pursuing his fruitful relationship with Ms Walsh.

Orders

43. Tabitha Walsh, you are convicted of each of the charges to which you pleaded guilty. I sentence you to imprisonment for a term of one year and 11 months, commencing today, to be served by a way of intensive correction in the community. Terms of the order are:

1. you must not commit any offence;

2. you must submit to supervision by a community corrections officer;

3. you must complete community service work for 350 hours;

4. you must participate in any rehabilitation or treatment program as directed by community corrections; and

5. you are to report to a community corrections office at Muswellbrook within seven days.

That is an aggregate sentence in respect to both offences. I order the First offender to pay as further compensation the sum of $1537.52, to be paid to the registrar within 28 days, and to be forwarded by the registrar to the manager of Surfrider Caravan Park, 50 Junction Road, Barrack Point, NSW, 2528. The account relating to the compensation will be Exhibit S11.

44. Alex Peter Dryer, you are convicted. I sentence you to imprisonment for a term of one year and ten months, commencing today, to be served by a way of intensive correction in the community. Terms of the order are:

1. you must not commit any offence;

2. you must submit to supervision by a community corrections officer;

3. you must compete community service work for 350 hours;

4. you must participate in any rehabilitation or treatment program as directed by community corrections; and

5. you are to report to the community corrections office at Muswellbrook within seven days.

Having taken into account as an aggravating factor your breach of the community corrections order imposed on 28 May 2020, I direct that no further action be taken with respect of that breach.

45. In each matter, any offences on the 166 certificates are withdrawn and dismissed.

46. HIS HONOUR: Anything else?

ANDERSON: No, your Honour.

TAYLOR: No, your Honour.

MITCHELL: No, your Honour.

Decision last updated: 19 August 2022