R v Young

[2024] NSWDC 24

District Court

New South Wales

Medium Neutral Citation:

R v Young [2024] NSWDC 24

Hearing dates:

13 December 2023 and 16 February 2024

Date of orders:

23 February 2024

Decision date:

23 February 2024

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

(1)   The offender, having pleaded guilty, is convicted of the offence.

(2)   I impose a sentence of imprisonment of 2 years 6 months to date from 28 October 2022 and to expire on 27 April 2025.

(3)   I impose a non-parole period of 1 year 6 months to date from 28 October 2022 and expiring on 27 April 2024.

(4)   The earliest date the offender is eligible to be released on parole is 27 April 2024.

Catchwords:

CRIME – sentencing - reckless grievous bodily harm in company - co-offender – joint criminal enterprise - victim impact statement – substantial emotional harm - whether aggravating factors – Bugmy principles – De La Rosa principles

Legislation Cited:

Crimes Act1900, s 35(1)

Crime (Sentencing Procedure) Act 1999, ss 3A(g) 10A, 21A(2)(g)

Cases Cited:

Alkanaan v R [2017] NSWCCA 56

Bugmy v The Queen [2013] 249 CLR 571; [2013] HCA 37

DC v R [2023] NSWCCA 82

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1

Dungay v R [2020] NSWCCA 209

Giles-Adams v R; Preca v R [2023] NSWCCA 122

Huynh v R [2015] NSWCCA 179

Josefski v R [2010] NSWCCA 41

KR v R [2012] NSWCCA 32

Luque v R [2017] NSWCCA 226

Muldrock v R (2011) 244 CLR 120

R v Wickham [2004] NSWCCA 193

Ryan v Regina [2017] NSWCCA 209

Category:

Sentence

Parties:

Rex
Nathan Young

Representation:

Counsel:
Mr D Mulligan (Offender)

Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Legal Aid (NSW) (Offender)

File Number(s):

2022/323183

Publication restriction:

None

REMARKS ON SENTENCE

1. The offender was committed for sentence from Nowra Local Court on 6 October 2023 having entered a plea of guilty to a single offence of reckless grievous bodily harm in company contrary to s 35(1) of the Crimes Act1900. The maximum penalty for the offence of 14 years, with a standard non-parole period of 5 years is an indication of the seriousness of the charge and acts as a sentencing guidepost or reference point.

2. Admitted on behalf of the Crown were the following: –

• C1- Notice of committal

• C2- Charge certificate and court attendance notice

• C4- Agreed statement of facts

• C5- Criminal history

• C6- Custodial history

• C7- Breach of parole documents

• C8- Witness impact statement with annexures

• C9- Expert Certificate and statement of Dr Methven

• C10- Expert Certificate and statement of Dr Liu dated 12 January 2024

• C11- 2x Report of Dr Liu dated 2 March 2023 and report of Dr McFarlen dated 9 August 2023

• C12- Expert Certificate and report of Dr McCall

• C13- Statement of Detective Senior Constable Michael Ricketts dated 12 February 2024

• C14- Bundle of progress medical notes

3. Admitted on behalf of the offender was a report of Ivanka Manoski, psychologist dated 15 November 2023 (O1).

4. The offence was committed whilst the offender was on parole having been sentenced to 27 months imprisonment from 30 July 2020 and expiring on 29 October 2022 with a non-parole period of 15 months expiring on 29 October 2021.

Agreed Facts

5. The offender and co-offender (Eloise Cheshire-Elwin) were in a relationship at the time of the offending. On the evening of 11 September 2022, having met up in the vicinity of the Milton Bowling Club they became involved in an argument. At the time the co-offender was in the possession of a sixpack of beer and other alcohol bottles.

6. On the same evening the victim James Brian was walking along Vincent Street, Ulladulla, to purchase cigarettes when he heard the voices of a man and woman arguing. On his return the victim walked along the front lawn of Ulladulla Civic Centre and again heard the co-offenders further arguing. The victim saw the offender grab the co-offender and yelled towards them “Oi stop, police are coming".

7. The victim approached the offenders out of concern for Cheshire-Elwin. Having enquired as to her welfare, Cheshire-Elwin began walking towards the victim whilst the offender said words to the effect “What do you think you're fucking police officer or something?" The co-offender thereafter swung what felt like a sharp object towards the victim who felt immediate pain in the top of his head. Cheshire-Elwin continued to strike the victim to the left and right side of his head. At about this time the offender stepped in and punched the victim directly to the face causing him to fall to the ground. The victim thereafter felt further strikes to his body and believed his head was stomped on and kicked. He recalled falling in and out of consciousness, and has no sense of how long the assaults continued for. However, he was feeling immediate pain to his face, head and torso, and was struggling to see out of his eyes as he was bleeding heavily from his face.

8. The victim managed to return home, following which he was found by two friends. They provided assistance to him whilst waiting for the ambulance to arrive. The victim appeared to be losing consciousness. Whilst being conveyed to Shoalhaven Memorial Hospital the victim was observed to suffer five tonic-clonic seizures which required medication. He was placed in an induced coma and intubated for transport, before being airlifted to St George Hospital in Sydney. The victim suffered various injuries.

9. Police attended the car park near Ulladulla Civic Centre and identified broken bottles of Tooheys Extra Dry beer as well as blood on the pavers. They subsequently attended the home of the offender who answered the door and spoke with police and Cheshire-Elwin also came to the door. The co-offender was placed under arrest. The offender was later arrested on 28 October 2022. In a subsequent interview he made partial admissions of assaulting the victim.

10. CCTV footage from local businesses captured the movements of the offender and co-offender around the time of the incident. A blood swab taken from stains on the upper section of the co-offender’s right shoe contained a mixed DNA profile of which the victim was the major contributor. A blood swab taken from a right Nike running shoe belonging to the offender also contained a mixed profile of which the victim was the major contributor. The offender's DNA was also identified on glass bottles located at the scene.

Additional medical evidence

11. Further evidence was adduced as to the injuries suffered by the victim.

12. The report of Dr Kara Methven confirmed that the victim presented post discharge from St George Hospital, noting that the discharge summary detailed an alleged assault, resulting in multiple facial and orbital fractures, seizure activity and dental damage. It was noted that the victim had been reviewed by the Illawarra Brain Injury Service and Ophthalmology services.

13. Dr Methven confirmed that the victim had suffered physical injuries and mental health implications as a result of the assault. His balance and stability were affected by reason of his reduced vision, complex post concussive state and chronic pain, all arising from the assault. It was also noted that the victim had suffered subsequent injuries as a result of this, including a rotator cuff tear of his right shoulder requiring surgical repair. The victim had to move house to accommodate his new physical disabilities. It was unclear from the ophthalmologists notes as to whether the victim would ever expect his vision to return to pre-injury levels. It was not expected that the victim would ever be able to drive a vehicle again and accordingly his independence was limited. The impact on the victim's mental health had also been significant with depression and short-term memory loss.

14. Reports from Dr Richard Liu, rehabilitation physician confirmed the victim had been reviewed at the Illawarra Brain Injury Service rehabilitation clinic. It was noted that as a result of the assault the victim had suffered broken teeth, fracture of the left orbit, fractured nose and lip lacerations. The victim had reported ongoing seizures leading to incontinence and exhaustion. He also reported poor balance and coordination with frequent trips. He experienced reduced vision on the right side and was unable to watch TV due to headaches and was also impacted by artificial lighting. The victim had reportedly broken glasses and coffee cups, knocking them over or dropping them. He had a constant black spot in his left field of vision and complained of blurred vision and sensitivity around the left eye as well as flashes. He reported depression, nightmares, and enuresis. He reported significant emotional issues including agoraphobic, distrust of people, and difficulty sleeping. He has had to resort to using a mobile stick and mobility scooter, the latter particularly in the afternoons when tired.

15. A psychiatric report from Dr Macfarlane confirmed significant mental health issues following the assault, including a worsening of a previous sense of anxiety and threats. He had difficulties closing his eyes in the shower or sleep in his house at night due to worries about being boxed in and unable to escape. He experiences significant nightmares about the assault, associated night sweats and poor sleep. He feels hyperaroused and numb. The victim was diagnosed with post-traumatic stress disorder on the background of a previous history of complex trauma from his childhood and associated polysubstance abuse and depressive symptoms.

16. Dr Liu, in a separate expert report, confirmed that the victim suffered severe facial injuries following the assault and has new and permanent visual loss. Symptoms of anxiety, including insomnia and nightmares, reflect an exacerbation of Post-Traumatic Stress Disorder from the assault which should prove difficult to treat following multiple medication trials.

Victim impact statement

17. The victim stated that as a result of the orbital and facial fractures his vision remained impaired. He experiences difficulties with focus, flashes of light, blind spots and trouble adjusting with shadows. As a consequence of the blind spots, he tends to bump into objects or people. This has led to multiple falls, most recently resulting in an injury to the right shoulder requiring surgery. He also suffers poor balance due to weakness in his legs and pain in his back. His disabilities have led to the need to move to new accommodation. The victim has had 5 to 6 teeth removed since the assault and for months afterwards has been confined to a liquid diet. He is consulting the brain injury clinic in Nowra and has suffered short-term memory loss. He has also suffered seizures since the accident leading to further injuries. However, the victim described his mental health as taking the biggest toll, suffering from significant post-traumatic stress disorder and anxiety. Whilst acknowledging he had previously suffered from these conditions, at the time of the assault he had been in a substantial stage of recovery. Due to his physical and mental impairments he has abandoned several his active interests. He suffers considerable anxiety and depression.

The offender's criminal record

18. The offender's criminal record commences relatively recently, given his age, with offences of shoplifting, possess prohibited drug and contravene prohibition restriction in AVO from mid-2019. In July 2019 the offender committed an offence of assault occasion actual bodily harm and contravene prohibition restriction in AVO, for which he was sentenced to 14 months imprisonment.

19. The offender was convicted of a further offence of assault occasioning actual bodily harm in May 2020 for which he was sentenced to a term of imprisonment of 27 months, and it was in respect of this offence for which the offender was on parole at the time of the offending the subject of this sentence. At the same time the offender was convicted of larceny to the value of less than $2,000. There is a further offence in April 2020 of dishonestly obtain property by deception for which he was convicted under s 10A of the Crime (Sentencing Procedure) Act 1999 (the CSPA) with no other penalty.

Breach of parole

20. The offender was on parole when the offence was committed, although his parole period concluded on 19 October 2022, the day after he was arrested and taken into custody in relation to the offences for which he is to be sentenced. The offender’s parole was therefore not revoked.

Subjective case

Report of a Ivanka Manoski, psychologist

21. The offender was interviewed by Ms Manoski on 8 November 2023 via audio-visual link. At the time of the assessment the psychologist had available the offender’s criminal history, agreed facts, previous psychological report of the author of 28 September 2021, breach of parole report dated 11 June 2020 and material from the Department of Family, Fairness and Housing Victoria between October and November 2005.

22. The offender impressed the psychologist as generally open and forthcoming throughout the interview. By way of background the offender’s parents separated whilst he was an infant, although his mother re-partnered relatively quickly. He was unaware until his teenage years that his stepfather was not his biological father. The offender described his childhood as marred by domestic violence and abuse describing his stepfather as a bad drunk and physically abusive towards him (“there were countless incidents”). Despite the abuse being reported by his schoolteacher no further action was taken. The offender also witnessed frequent domestic violence perpetrated by his stepfather towards his mother. In this context the offender, wanting to protect his mother, at an early age, would attempt to retaliate to his stepfather's violence, only to have the abuse directed towards him for doing so. He told the psychologist that there were three instances of losing consciousness as a result of his stepfather's physical abuse in his teenage years. He would also be locked outside for hours on end.

23. In order to avoid being home the offender attended a Bible study group at the age of 9 and 10, although he experienced sexual abuse on four separate occasions whilst attending this group. The experiences distressed the offender such that he no longer attended this group. The abuse was never reported to police and the offender did not receive any assistance or support in respect to the abuse. As a result of that offending, the offender became confused about his sexuality.

24. The records from the Department of Family, Fairness and Housing Victoria documented the alleged abuse of the offender at the age of 14 by a 27-year-old female with whom he was in "relationship" for approximately six months. He did not view the behaviour as abusive and contact only ended when it was uncovered by his mother who reported it to police. The offender experienced poverty in his childhood years and accordingly he worked from a young age to financially assist the family. He would often be kicked out of the house by his stepfather, although at times would be allowed to return with the support of his mother or sisters.

25. It was at the age of 16 that the offender discovered that his stepfather was not his biological father which made him feel angry. He then considered that this was the possible reason for the physical abuse to which he was subjected and the fact that he was treated differently to his siblings. A later attempt to contact his biological father was rebuffed.

26. The psychologist observed that collectively the offender's childhood experiences had caused him to develop poor self-esteem and feel unsupported and unloved. He developed a belief that he was worthless and was often quiet and withdrawn. Violence was normalised by reference to his stepfather's abuse, learning from a young age that violence was the only way to deal with things. He continued to report difficult relationships with his family.

27. The offender reported experiencing bullying at school as a result of repeatedly wetting his pants. It was observed that this was a likely traumatic response to the abuse he was experiencing in the family home. The offender engaged in disruptive behaviour throughout his primary school. In early high school he would truant and engage in antisocial behaviour with other students. Initial interaction with police for shoplifting resulted in the offender making attempts to refocus on his schoolwork. He would couch surf with friends and despite his adversities completed year 12. He subsequently engaged in various industries including bakery, transport, grounds keeping, and hospitality, having completed various trade certificates. He told the psychologist he had always been engaged in employment before relocating to Goulburn in 2018 where his mother was managing a hotel. He was subsequently employed in the hotel for a period of two years until his incarceration in 2020 and was on parole when he committed the current offence. It was observed that the offenders more recent employment instability was likely a result of methamphetamine use as well as periods of incarceration.

28. The offender reported significant drug use history commencing with cannabis at the age of 13 as a way of “self-medicating" and calming his nerves. There was no other substance use until approximately five years ago when he was introduced to methamphetamines by a fellow worker. Unsurprisingly his drug use impacted on his mental and physical health, causing him to offend and experienced difficulties in his domestic life.

29. The offender reported various side-affects of methamphetamine use, including auditory hallucinations. He had attempted to remain abstinent from methamphetamine use upon his release to the community in mid-2020, and had been out of custody for a period of eight months when he reoffended in respect of the offence which is now to be sentenced. However the offender told the psychologist that he was not using methamphetamines at the time of committing the offence and the author specifically noted that methamphetamines did not appear to be a factor related to his offending. Indeed, he denied consuming any alcohol or illicit substances at the time he committed the relevant offence.

30. In respect to his social interactions, the offender reported that he gravitated towards those who used illicit substances, and that his relationships were generally superficial and based around drug use. He had had one long-term intimate relationship of about seven years which deteriorated following their use of methamphetamines. It was the breakdown of this relationship that resulted in the convictions for assault and breaches of Apprehended Domestic Violence Orders.

31. At the time of the offending the offender had been in a relationship with the co-offender for several months. He described her as “toxic" and was often lying to him, particularly about being pregnant. She was apparently a drug user which caused several arguments between them including the one in which they were engaged at the time of the offending. He reported that his current partner was not a substance user and described her as being supportive and a positive influence. She was supporting him financially and planned to reside with her upon his release from custody.

32. The offender was reportedly diagnosed with schizophrenia at the age of 13 following various symptoms including hearing voices. At the age of 15 he was diagnosed with bipolar disorder, and was initially medicated, although he ceased use of this medication at the age of 16 or 17. Reference has already been made to the auditory hallucinations with the use of methamphetamines.

33. The offender reported an improvement in his mood and functioning since his arrest and had returned to taking his anti-psychotic medication. He reported symptoms of post-traumatic stress following the sexual and physical abuse including flashbacks, anger, resentment, and self-hatred.

34. The psychologist diagnosed the offender as suffering post-traumatic stress disorder, which was directly related to the abuse he suffered as a child, making him more reactive in situations in which he perceived either himself or a female being unsafe, considering he needed to react to the violence in order to protect them. The psychologist considered that the offender's belief that he needed to protect females was causally linked to the offending, noting that the time he assaulted the victim he was reminded of the domestic violence witnessed against his mother, feeling his partner was in danger and there was a need to protect her.

21. The psychologist observed that the offender’s criminal history was suggestive of difficulties with substance use as well as impulsivity and aggression. He denied any offending history in Victoria.

22. In respect to the circumstances in which the offending occurred he told the psychologist that he was feeling worried about his partner given she disappeared for a period of time. He felt “aggravated" with her behaviour and in particular her ongoing use of drugs in circumstances where he believed she was pregnant with his baby. He claimed that when the victim approached them the offender reportedly attempt to walk away however suggested that the victim had assaulted his co-offender which caused him to “knock him out". The psychologist report notes as follows: –

"He engaged in some unhelpful thinking around the victim, including “how dare you punch her, if I wasn't punching her, no one will. She was messing with my head, and I didn't punch her". He stated, “the reason I stood up for her was because it reminded me of my mum", reporting that he had a flashback of his mother being bloodied from his stepfather assaulting her." He acknowledged that he likely had “reserved aggression" from the past and “went too far”. The anger at the co-offender was “misdirected" towards the victim.”

37. It is worth noting that the offender’s description of events contains an element of justification for his offending. In this context the offender claimed that the victim had assaulted his partner, which led directly to his physical intervention. However the agreed facts do not suggest that the victim assaulted his co-offender. To the contrary, the agreed facts record that it was Cheshire-Elwin who was the aggressor, initially launching an unprovoked assault on the victim before the offender joined in, punching the victim directly to the face causing him to fall to the ground. Further, contrary to the offender’s assertions to the psychologist that initially he attempted to walk away, the agreed facts record that it was the offender who initially responded to the victim's enquiries with the statement “what you think you're a fucking police officer or something". Whilst the offender’s reporting to the psychologist contains an acknowledgement that perhaps he “went a bit too far", and his aggression was misdirected, there is no expression of remorse in what he told the psychologist. To the contrary, the offender seeks to justify his behaviour premised upon a set of circumstances inconsistent with the agreed facts upon which the offender is to be sentenced.

38. The psychologist considered that the offending could be best understood in the context of his trauma. Considering the dysfunction in his life, the offender had engaged in unhealthy intimate relationships which had been marred with instability, violence and substance use, and that the unstable relationships appeared to be a significant risk factor including in relation to the offending.

39. Noting the diagnosis of post-traumatic stress disorder, it was considered that a custodial sentence may weigh more heavily on him than someone not suffering from a mental health condition. Should he be confronted by a situation in which he felt his personal safety was compromised this was likely to result in the use of violence as a means to moderate those feelings and restore a sense of safety. The offender appeared to have gained some insight regarding the relationship between his early exposure to trauma and difficulties he had experienced in life. However he appeared to lack insight into the precipitants to his offending including the use of cognitive distortions that allow him to use violence, his difficulties with emotional regulation and interpersonal aggression. Accordingly the offender required assistance in developing further insight into his offending behaviour including assistance with adaptive skills to better manage himself. He required ongoing assistance in these areas as well as support with abstinence from substance use and ongoing monitoring of his mental health. It was recommended that he engage in various programs which were largely available in the community.

Crown submissions

40. The Crown contended that the offending fell just below the mid-range of objective seriousness. Aggravating factors were that the offender had a record of previous convictions, and the offence was committed whilst on conditional liberty. Mitigating factors were that the offence was not part of a plan or organised criminal activity and the plea of guilty.

41. The Crown further contended that specific and general deterrence, making the offender accountable for his actions, denunciation and punishment had a significant role to play in the sentencing exercise. The victim impact statement also required the Court take into account the harm done to the victim and the community. The Crown contended that the section 5 threshold had been crossed and no alternative other full-time imprisonment was appropriate.

42. The Crown provided supplementary submissions traversing the victim impact statement and the significant consequences for the victim. The Crown also referred to the expert evidence. It noted that the visual loss constituted grievous bodily harm and was therefore an element of the offence, and accordingly the Court should not have regard to it as an aggravating factor. However, the Crown contended that the Court could place significant weight on the victim impact statement and be satisfied beyond reasonable doubt that the emotional harm caused by the offence was substantial, including anxiety and exacerbation of PTSD. It was contended that the emotional harm suffered by the victim was above what would normally be expected as a result of this type of offending.

43. Whilst the Crown accepted that the offender did not initiate the physical contact, his statements to the victim inflamed the situation which then escalated rapidly into violence. The Crown maintained its submission that the offenders played an equal role in the offending.

44. The Court would not make a finding that the plea of guilty demonstrated genuine remorse without additional evidence in this respect. In effect the plea of guilty was in the face of a strong Crown case.

45. The Crown conceded that the Bugmy v The Queen [2013] 249 CLR 571; [2013] HCA 37 principles would apply and be considered in the sentencing exercise and in this respect accepted that there was some causal nexus arising from the offender’s deprived background by reference to the decision of Dungay v R [2020] NSWCCA 209. The Crown accepted whilst moral culpability reduced the purpose of general deterrence, the need to protect the community may be higher. The Crown also referred to Bugmy at [44] where it was accepted that the offender’s moral culpability may be substantially reduced. However in circumstances such as the present, the inability of the offender to control a violent response to a situation may increase the importance of protecting the community from the offender.

46. The Crown also conceded that the mitigating limbs of Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 were engaged although protection of the community was relevant in the sentencing exercise in light of the offender’s psychological condition. Ultimately the assessment of objective and subjective features meant that the consideration of an Intensive Correction Order is not raised. The offender’s prospects of rehabilitation were poor to guarded and the likelihood of reoffending was high. The fact that the offender was on parole at the time the offence demonstrated an escalation of criminal activity and there was minimal evidence of remorse or insight into the offending. The Crown conceded that special circumstances would be found.

Offender’s submissions

47. The offender contended that the offence fell under the mid-range of objective seriousness given the following factors: –

1. The offender was not a party that initiated the physical contact.

2. The Court could not be satisfied that the attack was over a lengthy or sustained period.

3. By reference to the injuries disclosed in the agreed facts they would not be sufficient to amount to really serious or permanent harm threshold of grievous bodily harm. The injury sustained by the victim fell in the lower end of the range of injuries expected for this type of charge.

4. Notwithstanding the victim's belief that he was kicked and stomped, the Court could not be satisfied, on the evidence, that there was a stomping to the victim.

5. The evidence did not disclose any long-term or permanent ophthalmic injuries.

48. In respect to issue of parity it was contended that the co-offender had a greater role than the offender given the agreed facts only disclose that the offender threw a single punch whereas, by comparison, the co-offender initially struck the victim and continued to strike him thereafter.

49. It was noted that the offender was entitled to a 25% discount for the plea of guilty. The plea avoided the victim having to be cross-examined, given he would have been the primary witness in the Crown case. This avoided the need for further exacerbation of the distress to the victim. By reference the judgment of Yehia J in Giles-Adams v R; Preca v R [2023] NSWCCA 122 it was noted that the concept of the utilitarian value of the plea and the degree to which the plea demonstrated willingness to facilitate administration of justice were conceptually different and required separate judicial consideration on sentence.

50. The offender contended that the victim impact statement did not rise to the level of establishing beyond reasonable doubt substantial harm for the purpose of s 21A(2)(g) of the CSPA, or that the Court could conclude that the victim suffered permanent ophthalmic injuries.

51. The submissions referred in detail to the offender’s subjective circumstances as disclosed in the psychological report, ultimately contending that there was a causal nexus between the offenders deprived background and his offending. Full weight would be given to the Bugmy factors, such that the offender’s moral culpability ought to be materially diminished. The submissions also referred in detail to the psychological factors at play and contended that all the mitigating limbs of De La Rosa were engaged to varying extents. The offender’s PTSD could be considered to moderate the need for general deterrence and the offender’s moral culpability must be reduced in the context of the PTSD diagnosis. Further, this diagnosis should reduce the weight otherwise placed on specific deterrence and the psychological condition will make the offender’s time in custody more onerous compared to the standard inmate.

52. It was also contended that the Court would place greater weight on the need for rehabilitation of the offender upon his release given the psychological opinion. Whilst it was conceded that drug use was not connected to the offence, given the opinion of the psychologist, the offender would require assistance and treatment to prevent relapse upon his release.

53. The offender referred to the relevant principles in considering an Intensive Correction Order and the Court's discretion that any term of imprisonment would be served by way of such an order. Alternatively, it was submitted that a finding of special circumstances would be made given the need for the offender to be subjected to persistent ongoing supervision in the community, the need to engage in rehabilitative programs and to avoid the risk of the offender being institutionalised.

54. In supplementary submissions it was contended that, notwithstanding the Crown submissions, the Court would find that the co-offender initiated the assault, and that the co-offender had a greater role to play in the offending for the reasons contended in the primary submissions. The offender disputed the Crown's contention that it was a strong prosecution case. Any danger to the community by reason of the offender’s PTSD would be best addressed by promoting his rehabilitation in the community.

55. The offender maintained that the evidence was insufficient to establish substantial harm for the purpose of s 21A(2)(g) of the CSPA. It adopted the co-offender’s submissions in respect to the evidence as to the ophthalmic injury. The Court could only have regard to the consequences of an offence that was intended or could have reasonably been foreseen, in the context of the alleged emotional harm suffered by the victim. The offender contended there were evidentiary issues in establishing that the disability referred to in the victim impact statement could be characterised as originating from the assault. Inconsistencies identified in the submissions between the victim impact statement and the additional medical evidence called into question the accuracy of some of the assertions from the victim and as to whether the consequences were a direct result of the assault. The offender noted the absence of any evidence from an ophthalmic expert establishing a connection between any ongoing problems and the original assault.

Consideration

56. The offender is to be sentenced in respect to a single offence of reckless grievous bodily harm in company. The victim was subjected to an unprovoked and violent attack when acting, in effect, as a good samaritan. He was clearly concerned for the co-offender’s welfare, having witnessed an earlier verbal altercation between the offenders, and seeing the offender grab his co-offender. The victim was initially subjected to an assault by the co-offender, which was immediately followed with further assaults from both offenders. The initial assault was in the context of the offender verbally abusing the victim. Having fallen to the ground, caused by a punch to the victim's face by the offender, the victim was then subjected to further assaults to his head at the hands of both offenders. The physical violence inflicted on the victim was such that he fell in and out of consciousness. Whilst I accept the attack was relatively short lived, it involved a very significant degree of violence.

57. As a consequence of the attack, the victim suffered multiple injuries, including a blowout fracture of the left medial orbit, a fractured nose, lost and damaged teeth and aggravation of an underlying post-traumatic stress disorder.

58. Dr Methven was the victim’s general practitioner prior to the assault and is therefore qualified to speak of the medical consequences of the assault. Dr Methven’s expert evidence has not been the subject of challenge. I accept the expert opinion contained in the report that the victim has suffered injuries which will affect him in both the short and long term. I accept that as a result of a combination of injuries the victim’s balance and stability has still not returned to its pre-injury level resulting in a fall and consequential injury. This is consistent with the victim impact statement. I further accept that the victim has had to move house to accommodate his new physical disabilities and that it is unlikely he will ever be able to drive a vehicle again, impacting the victim's independence. I also accept the opinion of Dr Methven that the victim now relies upon support persons and calendars as well as other means to maintain appointments and organise finances. The report also documents the impact on the victim’s mental health as being significant, including depression and short-term memory loss. Consistent with the agreed facts, I also accept that the victim has lost a number of teeth and experiences ongoing difficulty with headaches and speech.

59. I further accept the opinion of Dr Liu, which has not been the subject of challenge, that the victim suffered severe facial injuries as a result of the assault and is suffering various post-traumatic stress disorder symptoms. I accept that the victim will continue to need ongoing support in the community due to the injuries suffered in the assault.

60. The ophthalmic evidence does not enable me to be satisfied beyond reasonable doubt that the victim has suffered permanent loss of vision by reason of the assault for the reason’s referred to in the offender’s submissions.

61. The victim impact statement documents the significant lifelong impact the assault has had upon him, both physically and psychologically. I accept the contents of the statement to the extent it is supported by the medical evidence to which I have already referred.

62. Whilst the offenders, as part of a joint criminal enterprise, are equally responsible for the acts in the course of the joint criminal enterprise, it is necessary to consider the offender’s culpability by reference to his conduct: KR v R [2012] NSWCCA 32 at [19]. Whilst the initial strike was inflicted by the co-offender, the offender shortly thereafter struck the victim to the face at the same time as the co-offender was striking the victim to the head. It was the offender’s punch which ultimately led to the victim falling to the ground, before both offenders continued the unprovoked and violent assault. It is difficult to separate the relative culpability of the offenders. Whilst I accept the co offender was the first to strike the victim, it was in the context of the offender verbally abusing him. Momentarily after the initial strike, the offender punched the victim resulting in him falling to the ground. Both offenders then continued to assault the victim whilst on the ground. I find the offenders were equally culpable for the assault.

63. I find the offence falls just below the mid-range of objective seriousness.

64. The Crown contends that an aggravating factor is that the emotional harm caused by the offence was substantial (s 21A(2)(g)), acknowledging that the physical injury and harm is encompassed as an element of the offence. The offender contends that there is no evidence to support the Crown's submission that the victim has suffered an appreciable psychological injury (Huynh v R [2015] NSWCCA 179 at [29]). Further, the emotional harm allegedly suffered by the victim could not have been expected or reasonably foreseen as a result of the commission of the offence: R v Wickham [2004] NSWCCA 193 at [25]; Josefski v R [2010] NSWCCA 41.

65. Dr Matthew McFarlane psychiatrist (9 August 2023) obtained a history from the victim of the assault, following which he had struggled with both the physical effects as well as “significant mental health issues". The psychiatrist had noted a background history of PTSD and ADHD as well as polysubstance abuse. It was noted that indeed Dr McFarlane had seen the victim briefly prior to the assault in the context of a detox admission. However, in recent years the victim had worked hard to get himself back into housing, daily activities such as fishing and surfing etc. This history is consistent with the victim impact statement. A history was obtained of a worsening of his previous sense of anxiety and threat, finding it difficult to close his eyes in the shower or sleep in his house at night. He also experienced significant nightmares about the assault with associated night sweats and poor sleep. He described feeling generally hyper-aroused but also emotionally numb. He also experienced intermittent suicidality. This cluster of symptoms are clearly referable to the assault.

66. In the circumstances it is hardly surprising that Dr McFarlane made the following diagnosis: –

"Diagnostically, this picture fits a post-traumatic stress disorder which occurs on the background of someone who has a background of complex trauma from his childhood and associated polysubstance abuse and depressive symptoms."

67. In Huynh, Campbell J (with whom Hoeben CJ at CL and R A Hulme J agreed) observed at [29] that “the adjective substantial may be taken to be a reference to an appreciable psychological injury whether permanent or not". His Honour further observed that it refers to “something more than the transient, or temporary, shock or fright that anyone would suffer who felt his or her safety was in peril, but which passes within a relatively short time leaving no lasting ill effects".

67. In Wickham, the Court observed that a finding of substantial emotional harm would “be limited by the common law rule that the Court is only to have regard to the consequences of an offence that were intended or could reasonably have been foreseen" (citations omitted). This statement of principle was accepted in Josefski (Howie J with whom James and Davies JJ agreed).

68. It is readily apparent, upon a plain reading of the report of Dr McFarlane, that he was aware of the victim’s history, including diagnoses of PTSD, ADHD and polysubstance abuse. Whilst the history included an alleged severe traumatic brain injury arising from the assault, I am satisfied that this incorrect history does not impact upon his ultimate findings considering the history otherwise obtained of the psychological effects of the assault. I accept the opinion of Dr McFarlane that the victim has indeed suffered post-traumatic stress disorder because of the assault. Whilst I do not accept it is a distinct aggravating factor for the purpose of s 21A(2)(g) of the CSPA, it is a factor that must be taken into account when recognising the harm done to the victim (s 3A(g)).

69. As previously observed, the offender’s description to the psychologist of the circumstances of the offence are at odds with the agreed facts. The offender had contended that the victim had initially assaulted the co-offender, which led to his physical intervention. This is contrary to the agreed facts. Whilst there is an acknowledgement by the offender that he “went a bit too far", and that his anger was “misdirected" towards the victim, any expression of remorse that can be inferred from such statements is clearly qualified. There is an absence of recognition of the significant harm caused to the victim, in circumstances where the offender seeks to justify his actions by reference to his personal circumstances.

70. I accept that the guilty plea is an acknowledgement by the offender of his wrongdoing, and that it does demonstrate a willingness to facilitate the administration of justice in avoiding the need for further exacerbation of the distress to the victim if he was required to give evidence in a trial.

71. I have considered the report of Ivanka Manoski, Forensic Psychologist.

72. As to the effect of a mental condition reducing an offender’s moral culpability, Yehia J (with whom Rothman and Wilson JJ agreed) in DC v R [2023] NSWCCA 82 observed:

“[74] A reduction in moral culpability results where an offender’s mental health (or impaired intellectual functioning) has contributed to the commission of the offence. The applicant does not need to demonstrate that his actions were beyond his control, or that he had no understanding of what he was doing. Rather, the question is whether the applicant has established, on the balance of probabilities, that his actions are mitigated on the basis that the complex PTSD and/or intellectual impairment played a role of some significance in his offending.

[75] The sentencing task should not be approached in “an unduly technical or restrictive way”: see Luque v R [2017] NSWCCA 226 at [114]. In determining whether a causal link or nexus exists, a sentencing Judge should not approach the task as though deciding the issue of causation in a civil case. Where the mental illness or intellectual impairment explains or sheds light on the offending conduct in some material way, such a finding may operate to reduce moral culpability and the weight afforded punishment and deterrence.

[76] While a sentencing Judge should not become preoccupied with the issue of “causation” as a technical matter, the mental health issue or intellectual impairment should be capable of demonstrating a link, direct or indirect, between the offending and the mental health issues in question: see Ryan v Regina [2017] NSWCCA 209 at [15] per Hamill J (Leeming JA and Button J agreeing).” (Emphasis added).

74. I accept the opinion of Ivanka Manoski that the offender suffers from post-traumatic stress disorder directly arising from the abuse he experienced as a child “making him more reactive in situations he perceives himself or a female to be unsafe in and believing that he needs to react with violence in order to protect them or himself". Further, I am satisfied that the offender’s psychiatric condition is causally linked to the offending.

75. Whilst authorities such as Muldrock v R (2011) 244 CLR 120 and De La Rosa have held that deterrence, retribution, and denunciation carry less weight where an offender was suffering from a mental condition at the time of commission of the offences, they are not authorities for the proposition that such purposes of sentencing have no relevance. Muldrock referred to the fact that in “most cases" mental impairment or disability will substantially lessen the offender’s moral culpability for the offence. In Alkanaan v R [2017] NSWCCA 56 Harrison J (with whom Payne JA and Schmidt J agreed) observed at [108]: –

“The mere fact of mental illness is not of itself a necessary or sufficient indicator for a more lenient sentence. The principles described by McClellan CJ in De La Rosa are no more than indications of what experience has shown commonly arise in such cases. As Simpson J has said, however, there is no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for."

76. I accept that the offenders PTSD does reduce, to an extent, the need for general and specific deterrence and the offender’s moral culpability is reduced by reason of the psychiatric condition from which the offender was suffering.

77. I further accept that the offender’s childhood experiences, and trauma reduces the offender’s moral culpability. However, as the High Court observed in Bugmy, an inability to control a violent response may increase the importance of protecting the community from the offender. In this respect, the psychologist noted the offender may resort to the use of violence when he feels that his safety or the safety of those about whom he cares is compromised. The psychologist had further observed the offender had engaged in unhealthy intimate relationships marred with instability, violence and substance abuse, which were a significant risk factor, including in relation to the index offending.

78. The sentence must still ensure that the offender is adequately punished for the offence and make the offender accountable for his actions. As previously observed, the sentence must also recognise the harm done to the victim as traversed in these remarks on sentence.

79. The offence was committed whilst the offender was on conditional liberty, however it must be acknowledged that it occurred within days of the expiration of the offender’s parole.

80. The offender’s prospects of rehabilitation must be considered as guarded in circumstances where the offender was on conditional liberty, and the offence reflects an escalation of his previous criminal behaviour, which fundamentally arose from the breakdown of a relationship. Whilst not an aggravating factor, account is taken of the offender’s previous criminal history, albeit limited, which primarily consisted of offences of violence.

81. The prospects of rehabilitation would also be considered as guarded given the offender’s lack of any significant remorse or acknowledgement of the harm done to the victim. However, I accept that the offender is now likely to have some insight into his personal background and the extent to which it contributed to his offending. It would be hoped that this insight will lead to the offender engaging in appropriate support and therapy as contemplated in the report of Ivanka Manoski. I also take into account that the offender will have the support of his new partner upon his release. For this reason, and accepting that a custodial sentence may weigh more heavily on the offender, I make a finding of special circumstances such that there ought to be an adjustment of the statutory ratio of the non-parole period. I find this is indeed a suitable case for leniency in considering the non-parole period.

82. I find that the s.5 threshold has been crossed and that no alternative other than full time imprisonment is appropriate.

83. I find that the appropriate sentence in 3 years 4 months from which is to be deducted 25% for the plea of guilty resulting in a sentence of 2 years 6 months with a non-parole period of 1 year 6 months.

84. The offender was arrested for this offence on 28 October 2022 and has remained in custody solely referrable to this offence since that date. Accordingly, the sentence is to be backdated to commence on 28 October 2022.

Orders

1. The offender, having pleaded guilty, is convicted of the offence.

2. I impose a sentence of imprisonment of 2 years 6 months to date from 28 October 2022 and to expire on 27 April 2025.

3. I impose a non-parole period of 1 year 6 months to date from 28 October 2022 and expiring on 27 April 2024.

4. The earliest date the offender is eligible to be released on parole is 27 April 2024.

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Decision last updated: 23 February 2024