Regina v Craig Leslie Holden

[2007] NSWDC 55

CITATION:	Regina v Craig Leslie Holden [2007] NSWDC 55
JUDGMENT DATE:	9 March 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Woods QC DCJ
DECISION:	Sentence imposed - see para. 27
CATCHWORDS:	Criminal Law - sentence - assault - grievous bodily harm - boarding house situation - 5 young men in one room paying $100/wk - explanation not justification - offence related to alcohol abuse
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 (NSW)
PARTIES:	Regina Craig Leslie Holden
FILE NUMBER(S):	07/11/0039
COUNSEL:	Mr David Burwood (Def)
SOLICITORS:	Ms J Sposi (NSW DPP)

JUDGMENT

1 HIS HONOUR: This is the sentence of Craig Leslie Holden on a charge that on 9 April 2006, at Manly in the State of New South Wales, while in company with Craig Steel, Kintaro Dumfey, Linton Moore and other persons, he maliciously inflicted grievous bodily harm upon Peter Dee. There has been, relevantly, an early plea of guilty to this charge, although for technical reasons, he was arraigned in front of me on an indictment dated today. The original plea of guilty was before the magistrate’s court at an appropriately early point.

2 There is also before me, and I take it into account, a Form 1 list of additional charges to be dealt with under s32 of the Crimes (Sentencing Procedure) Act 1999. I note those matters and take them into account. They are an offence of assault occasioning actual bodily harm contrary to s59(2) of the Crimes Act 1900 committed on 7 April 2006 in company with several others. The second matter on the Form 1 is a s61 assault on 9 April 2006. Those two matters are part of the sequence of events over several days which led up to the matter which is on the indictment. For the charge to which there has been a plea of guilty, the law provides a maximum penalty of ten years imprisonment.

3 The facts are set out in exhibit S(a) which is the crown brief, including a document headed “Summary of Facts”. I will not recite it all in great detail, but I have read it carefully and note all that material.

4 The offender had been living at a flat in Sydney Road, Manly, which comprised three bedrooms and some other rooms. Two of the rooms were let to others and one bedroom to a number of people, including this offender, Craig Holden. He had been living there for some three months before these events. It would seem that the premises were located in some shops and that they were the upstairs part. Along the road there ran an awning, a metal awning, such as is commonly found in rows of shops facing streets. The facts disclose that alleged co-offenders, Craig Steel, Linton Moore and Kintaro Dumfey, were co-tenants of the one room, together with a person called Jordy who has not been charged, so that the landlord, Mr Dee, had five young men living in the one room, each paying one hundred dollars per week in rent.

5 On Friday 7 April 2006, it seems that the offender brought home a number of mates, this occurring around about 10.45pm. It is not hard to infer that there had been some drinking going on. An argument ensued between Mr Dee, the landlord and victim of this offence, and Holden about Dee asking the offender’s friends to leave. In any event, an argument ensued and the offender punched Mr Dee. He fell over and there was further angry conversation. The offender and some of his mates belted Mr Dee and that assault included kicking after he fell over.

6 After Mr Dee had gone to the police and had some treatment for some injuries which included a cut over his upper left eye, Mr Dee clearly regarded the relationship as terminated. Police applied for and were granted a telephone interim order against the offender; that is to say, an order relating to domestic violence. Later in the weekend - before I move to that point, I should say that in the record of interview which is under tab 9 in exhibit SA, the offender, who spoke at length with police, explained that there was a dispute which arose about the rent. Notwithstanding the physical conflict of the Friday night, he told police that he had been paying money and he thought that he was entitled to stay longer and get the value of the money that had been paid. At question 258 he told police:

“I paid him two hundred dollars two days ago. I paid him two hundred dollars the day I moved in for two weeks rent. I paid him another two hundred two days ago. Logan was living there and paying him the same amount. Ken was living there, paying - you know, he was getting a lot of money for one room”

7 He went on to tell police that he was paying in advance. With no proper legal justification, this offender seemed to think that the fact that he was paying quite a lot of money in return for being able to sleep in the room, gave him certain entitlements. Legally, in this context, that was quite wrong, but as a matter of reality, one must observe that a landlord who puts five young men into one room and charges them each a hundred dollars for it would seem to be behaving in a fashion likely to provoke the kind of problem that arose in this case.

8 In any event, those were the events of the Friday. On the Saturday, which is the second Form 1 matter, there was a confrontation outside the Ivanhoe Hotel in Manly where Mr Dee and a friend of his had gone to watch the television. An episode occurred where the offender approached Dee and tried to hit him, but he was pushed away, with the offender saying “I’m going to get you, Dee”. This was about lunch time on the Sunday. About 3.15, after the boxing match which they had watched at the hotel had been apparently completed, Mr Dee was back at home sitting in the lounge room with some friends who are described in the document before me.

9 A television monitor allowed observation of the alleged co-offender, Steel, climbing over the front gate and a number of other males were then seen to kick open the locked gate. Between four and seven males were observed to come through the gate. After this, the offender and the alleged co-offender, Moore and Steel, were inside the house. Holden and Steel had empty glass bottles. Some of the other males were holding glass bottles and all of the males were heard to say words to the effect “We want our rent money. This is what you deserve”. The victim was punched and kicked and dragged into his bedroom. The offender smashed his bottle on a table in the lounge room and followed the other males and Mr Dee into the bedroom with the now broken bottle.

10 Mr Dee ended up on his back on the floor, whereupon Steel said “Where’s our six hundred dollars?”. Mr Dee replied “I owe you nothing. Where’s my computer, television and Foxtel box?”. He was then belted on the head by a bottle by one of the males. He was then punched and kicked many times, with the males continuing to yell “Give us the six hundred dollars you owe us”.

11 In due course, the assault stopped and Mr Dee ended up getting himself off the floor. He had asked them to stop and they apparently agreed to do that. As the victim saw Steel and two of the others moving away, the victim ran into the lounge room, jumped out the window and ran along the awning - that is, the shop awning, presumably a metal one - to the window of the flat next door where he yelled for the neighbour to ring police. There was further agitation inside Dee’s flat and then the offenders left, yelling obscenities.

12 Medical examination and treatment followed. Mr Dee was taken to hospital. He suffered injuries which clearly represent grievous bodily harm. He had a broken left finger. The hand was splinted (I note that the document before me called “Facts” suggests that the hand was splintered, S-P-L-I-N-T-E-R-E-D, but clearly that is not what is meant. The left little finger was obviously broken in such a way that it was prevented from further injury by a splint.) There was an injury to the left eye which required some surgical intervention, and there was cleaning and closing of the lacerations on the nose and left eyebrow.

13 The offenders were all arrested in due course and the facts tell me that all three participated in electronically recorded interviews and gave contradictory accounts. I have read the record of interview by the accused. The part of it where he says he never went in is clearly nonsense and much of what he said is clearly self-serving. Nonetheless, I accept that he felt some justification, albeit not proper justification, for what he did, arising out of the circumstances involving rent money.

14 I should add that it is quite clear that this is a proper plea of guilty. The offender is represented by counsel and he was formally arraigned before me today and I conclude that he understands the basis of the law relating to common purpose. I have no doubt that he was inside the house and that he participated in threatening and bashing Mr Dee. Precisely what he did is not clear, but in any event, he was there encouraging others in what they did. The photographs under tab 4 in the exhibits before me show that Mr Dee was clearly given a thorough belting.

15 In the course of the interview, the offender gave an explanation of what appeared to be blood spots on his clothes being from cuts on his hand, but DNA recovered from two stained areas on the offender’s shirt was subsequently found to have the same DNA profile as Mr Dee, which in the circumstances is a fairly convincing proof that Holden was indeed in the house and was part of the attack.

16 I have read the pre-sentence report which is under tab 10 on the crown brief and I note his history of involvement with the criminal law. He is twenty nine years of age. His criminal history is extensive and not insignificant. I will turn to that in a moment. I note the difficult family history that this young man has had. It is quite clear, as I accept from the pre-sentence report, that a step parenting arrangement resulted in an early childhood of some difficulties for this man. I note in particular page 2 of the pre-sentence report and what it recites there of what his mother has explained as to his childhood. This goes some significant way towards explaining aspects of his history; his use of various drugs - Cannabis, Cocaine, Ecstasy, Speed and other drugs.

17 The madness of this weekend of violence is consistent with the destruction of social controls wrought by misuse of drugs by young people. No doubt a significant aspect of this was an alcohol dependency which was referred to in the pre-sentence report and although alcohol is a legal drug, it is capable of causing havoc in people’s lives. It has done so in this young man’s life. He has attempted rehabilitation on occasion, but without success. I should make it perfectly plain than nothing other than a significant sentence of imprisonment will be an appropriate sentence in this case.

18 Under the Crimes (Sentencing Procedure) Act (1999), there are listed various matters to which I should make reference in the process of sentencing. Let me turn to some of those. I am conscious of the provisions of the section. I will not go through it in detail, but there are some matters, firstly of aggravation, to which I should refer. S21A subsection (2) talks about various matters: (b) actual or threatened use of violence; (c) the actual or threatened use of a weapon; (d) record of prior convictions. Let me say firstly that factors (a) and (b) are already intrinsically part of this offence of maliciously inflicting grievous bodily harm in company, so I do not sentence so as to increase a sentence which I would otherwise impose, but I note that those factors are present in the offence itself as defined. He does have a record of previous convictions. That is a separate matter of aggravation which tends to increase the sentence over what it otherwise might have been. That history of prior convictions is set out and it is tab 2 of exhibit SA. I will not go through it in much detail, but it is, as I say, not insignificant history.

19 He was born on 4 January 1978. He is nearly thirty, and he has had various drug matters before the courts. He has been ordered by the court not to commit violence and he has breached an apprehended violence order. There was an offence of maliciously destroy/damage property in the year 2004. He was in fact on several bonds at the time of this offence, which is, as an aspect of his prior criminal history, an aggravation of the offence. When a person is given a bond for misbehaviour by a court, it is conditioned upon the person behaving himself subsequently and it is a breach of that bond and defiance of the court order to commit further offences. The bonds in place at the relevant time were for maliciously destroying property, the details of which are not known to me, but no doubt the court and his legal representatives, if he had any, would have brought his obligations to his attention at the time he entered the bond.

20 As I say, his is not a minor history, particularly when one takes into account the 2002 conviction for supply of drugs. A sentence of three years was imposed upon him finally, and he is a person who has been inside a prison. Notwithstanding that experience, he has failed to moderate his behaviour. The matters which I specify as matters of aggravation are the criminal record and the fact that he was on three bonds. Many of the other aspects of s21A ss(2) set out nasty aspects of offences which are already included in the nature of this offence; for example, the injuries, which are serious. I do not doubly penalise him for that because it is a definition - it is part of the definition of this offence; grievous bodily harm. “Grievous” means “really serious bodily injury.”

21 I must also have regard to any relevant mitigating factors. Section 21A ss(3), the first of a number of things - I will not go through them all in detail because most of them are not applicable - but ss(c) talks about provocation. Well, it cannot be said realistically that there was provocation by Mr Dee directly in terms of this offence, but it is some explanation of the misconduct of this man and his co-offenders that they were in a situation of living, five together in one room, all young men. I infer that not many of them were occupied gainfully so as to keep them off the streets. I regard this more as a matter of explanation, however, than of mitigation as such.

22 I accept that there was some remorse shown by the offender in the letter before the court, although much of it - both in the letter and in the record of interview - goes to explain his position and explain that they wanted the money back. I see more remorse in the plea of guilty. He has been before the courts before. No doubt he knows something about the system. The plea of guilty is, relevantly, an early plea. I note that the others are pleading not guilty, which will be an interesting exercise. In any event, he certainly has the benefit of the plea of guilty as indicating some contrition and as of being some assistance in the administration of justice. I have referred to the pre-sentence report which I note.

23 I should say in general terms that I am bound to give a sentence which is appropriate in all the circumstances. I take into account his background. He has family support here in court. I find it difficult to say that he has good prospects of rehabilitation, but many people in his situation do end up coming good in the end. Being involved with the use of drugs is a shocking business, devastating for the person himself and it is devastating for the family, who see a person they love virtually destroyed by the effects of drug abuse and the consequences that it has.

24 In the present case, the court expresses its sympathy towards the victim, who has been significantly damaged by this attack inside his own house. It is an awful situation to be placed in. Of course, this offender and the others, no doubt, also regarded it as their own house in a sense, which is what led to the problem. However what occurred was a gross over-reaction, not tolerable in a civilized community. If you think someone owes you money, you do not go around with bottles seeking to bash them up.

25 In the letter which is before me from the offender, he talks about how he feels and I know he understands, or is coming to understand, the devastating situation in which he has placed himself. The maximum penalty provided for this offence is ten years imprisonment. But for the plea of guilty, it seems to me that an appropriate sentence in this case would be five years imprisonment. Such a penalty would reflect the need to deter such conduct and punish those who engage in it.

26 Nonetheless, given the plea of guilty, I think an appropriate sentence is four years imprisonment. In terms of a non-parole period, it seems to me that there are special circumstances here which make it appropriate that the non-parole period should be somewhat less than the normal three-quarters of the sentence. There is a very strong need for this man to deal with the drug problem that he has been failing to grapple with. I take into account the matters on the Form 1 and work into the sentence which I am now imposing a proper measure of punishment for those offences. They were, as I say, a lead-up to the main offence.

27 The offender is convicted and sentenced as follows - please stand: I set a non-parole period of two years and six months commencing on 9 April 2006, which was the date of the arrest, and expiring on 8 October 2008. I impose a further period of imprisonment of one year and six months to commence upon the expiration of the non-parole period and expiring on 8 April 2010. The total sentence is therefore four years, comprising the non-parole period and the balance of the sentence. I find special circumstances for varying the normal relationship between the head sentence and the non-parole period consisting, as I say, in the need for this offender to deal with the drug problems and for some treatment, if possible, to be provided for that purpose over a significant period.

28 The offender will be eligible to be considered for release to parole at the expiration of the non-parole period. I add two recommendations to the Parole Board which I ask to be noted and communicated to the Parole Board by the registry: one, that the offender be regularly tested for drug abuse during the non-parole period; secondly, that he not be released to parole unless such drug testing shows satisfactory behaviour in custody.

29 Let me explain that to you, Mr Holden. The sentence is a total sentence of four years from the time that you were taken into custody, which is 9 April 2006. You are bound to stay in prison for two years and six months - that is to say, somewhat more than one year. You may or may not be granted parole. I do not make those decisions, but I am recommending to the Parole Board that you be tested for abuse of drugs and I am recommending that you not be released to parole unless you are “clean”. If you are not clean, then you will almost certainly serve four actual years in prison. If you behave yourself, you may serve two years and six months. I note the presence of your family supporting you here today, as they no doubt have done for some time. I wish them well in assisting you in your future. Please take a seat. Are there any mathematical errors? Any other matters I need to refer to?

30 BURWOOD: Not to my knowledge your Honour.

31 SPOSI: No thankyou your Honour.

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