District Court New South Wales Medium Neutral Citation: R v Kenneth Stephen RICHARDS;; R v Domenic AMUSO. [2020] NSWDC 258 Hearing dates: 25 May 2020 Date of orders: 01 June 2020 Decision date: 01 June 2020 Jurisdiction: Criminal Before: Noman SC DCJ Decision: Amuso: Assault occasioning actual bodily harm in company - fixed term of 9 months imprisonment to date from 11 May 2019; Reckless wounding in company - 3 years and 9 months imprisonment with a non-parole period of 2 years to date from 11 July 2019. Overall sentence of 3 years and 11 months with an overall non-parole period of 2 years and 2 months. Richards: Assault occasioning actual bodily harm in company - fixed term of 1 year and 4 months imprisonment to date from 11 July 2019; Reckless wounding in company - 6 years and 7 months imprisonment with a non-parole period of 3 years and 7 months to date from 11 September 2019. Overall sentence of 6 years and 9 months with an overall non-parole period of 3 years and 9 months. Catchwords: Sentence - assault occasioning actual bodily harm in company - recklessly wounding in company – late pleas – CCTV – use of weapons – joint criminal enterprise – standard non-parole period – parity - special circumstances – onerous conditions during pandemic. Legislation Cited: Crimes Act 1900 (NSW) ss 59, 33, 35. Crimes (Sentencing Procedure) Act 1999 (NSW) s3A Category: Sentence Parties: Regina (Crown); Kenneth Stephen Richards (offender); Domenic Amuso (offender). Representation: Counsel: M Smith (Crown) P Massey (Richards) N Mikhaiel (Amuso) File Number(s): 2019/1479712019/147969 Publication restriction: Nil Judgment 1. The offender Kenneth Richards was arraigned before a jury on 22 January 2020. He pleaded not guilty to an offence of assault occasioning actual bodily harm in company [count 1, s.59[2] Crimes Act], not guilty to an offence of wounding with intent [count 2, s.33[1][a] Crimes Act] but guilty to the alternative count of recklessly wounding in company [count 3, s.35[3] Crimes Act]. The Crown did not accept the plea to the alternative count and the two other counts were in the charge of the jury. 2. On 30 January 2020, the sixth day of the trial, the parties reached an agreement to resolve the trial. The offender was re-arraigned. He pleaded guilty to count 1, the offence of assault occasioning actual bodily harm in company. Upon entering this plea the Crown accepted the earlier plea to count 3, the reckless wounding in company, in satisfaction of count 2. The jury were then discharged. 3. Both pleas are late pleas. During the submissions on sentence, it was indicated that the offender had offered to plead guilty to the reckless wounding count in the Local Court but this offer was conditional upon the prosecution not proceeding with the separate assault offence. This was not agreed to and the offender was committed for trial and subsequently arraigned on all three counts, one pleaded in the alternative. I propose to reduce the sentence by 5% for the wounding to reflect the plea entered at the commencement of the trial, and 5% for the plea for the assault during the trial. 4. The offender Domenic Amuso is also for sentence. On 12 December 2019 he entered a plea of guilty in the Local Court and was committed for sentence on a sole offence of wounding with intent, encapsulating the offending causing both the wounds and the actual bodily harm. On 13 March 2020 he was arraigned on a new indictment in the same terms as the offender Richards, that is, for reckless wounding in company and assault occasioning actual bodily harm in company. This approach, adopted by the prosecution, of proceeding on a lesser count to that originally before the court and for which a plea of guilty had been entered, was adopted undoubtedly as a matter of consistency and fairness. 5. The pleas are early pleas. The legislation for early pleas does not specifically address this somewhat unusual outcome. However, I determine that the offender did plead guilty to conduct embracing the offences now reflected in lesser offence provisions. I propose to reduce the sentence by 25% to reflect the pleas entered at the earliest opportunity. 6. The offenders appear for sentence on two offences of violence upon Kai Holland arising out of an incident at Manly Oval early on the morning of 11 May 2019. Together they both assaulted and occasioned actual bodily harm and recklessly wounded the victim. Both offenders were homeless and sleeping on a verandah. Both had bedding and possessions with them. The victim was occasionally sleeping rough. 7. There are both common facts and facts that differ between the offenders. The offender Richards is to be sentenced based on the CCTV footage, the accepted facts and the evidence of the victim given at trial. The offender Amuso is to be sentenced on agreed facts and the CCTV footage. He also seeks to rely upon an account he provided under caution at the scene to police. 8. In the evidence admissible against the offender Richards, the victim said he had been threatened by the offender Richards on a previous occasion. I am unable to determine if this occurred or, if it occurred, that it was a statement of intention. I disregard this assertion. 9. The CCTV footage reflected the three to be relatively sedentary prior to the assault. The three appeared to be socialising without incident. The CCTV footage captured what occurred immediately before the altercation and then the interaction between the three persons during which the accepted offending occurred. The facts documents for both offenders summarise what was captured supporting the accepted offending. The offenders also advance interpretations of the recording. The parties agreed that it was a matter for me to determine what occurred guided by what could be seen on the recording. 10. The Crown particularised that the assault commenced and initially involved the offender Richards acting alone to assault the victim with the pole. Soon after the two offenders then jointly assaulted the victim. The reason for the two offences is to account for the different injuries. It is accepted that both offenders are responsible for all the injuries detailed in the facts documents at [31] and [32]. 11. The Crown indicated that the offender Amuso did not participate in the offending, as part of a joint criminal enterprise, until the time stamp 7.09.08. On behalf of the offender Amuso, it is submitted that he only became involved in this capacity at 7.09.23. It was submitted that all the preceding acts were acts committed in defence of the offender Richards. 12. Both offenders rely upon accounts provided to psychologists and the offender Amuso also relies upon his version given to police at the scene. The offenders do not accept that they initiated the incident. Each attributes the commencement to acts of the victim in taking property from the offender Richards and his conduct towards both offenders. The offender Richards denied to police that he used the pole and made assertions that the victim had tried to use the pole. These assertions are demonstrably false. The offender Amuso advanced that he became involved only part way through the conduct and, initially, only in defence of the offender Richards. These are disputed facts. I am cognisant of the different level of satisfaction required; those adverse to the interests of the offender must be established by the Crown beyond reasonable doubt and the offender bears the burden of proving on the balance of probabilities those matters in his favour. I accept not all disputed facts are capable of resolution. The versions advanced on behalf of the offenders are not contained in sworn evidence and some are hearsay accounts with the associated limitations. 13. The offender Amuso sought to rely upon the account he provided at the scene to police captured on a body worn recording (exhibit 2). The offender Amuso stated the victim was standing over the offender Richards and that the victim threatened them both during the night, and took both a bottle and cannabis from the offender Richards. He said the victim was swinging at him and he was attacked by the victim whilst he was in bed. He said the victim wanted to fight them both. The offender Amuso advanced that the victim kept on 'pushing' the offender Richards until the offender Richards hit the victim. He said he pushed the victim a couple of times to get the victim off him. He said he kicked the victim a couple of times in the face to get him off the offender Richards. The offender told police he did not see the drain grate used. He did not describe the pole being used although he did refer to the offender Richards having the pole. He said the victim also stole sleeping gear although it is likely he was referring to another night. He said the victim was asking for it. The description of the incident is evidently unreliable and does not accord with what is recorded. There was no initiating act directed at the offender Amuso as described or otherwise. There is no support for a determination that the victim was standing over the offender Richards. The victim did not push the offender Richards prior to the assault. He was physically proximate at the time the drain grate was used and there is no explanation for why he would not have seen it used. 14. The offender Amuso also provided an account to Julie Dombrowski, psychologist. Ms Dombrowski commenced by referring to the 'agreed facts'. The offender provided an account that the victim attempted to rob the offender Richards and he acted to protect him. It is opined by the psychologist that the offender was using methamphetamine at the time and that his decision making was likely impaired. 15. The offender Richards told the psychologist, Bradley Jones, that the victim threatened to kill him with the bottle and that he used the pole to force the victim to return stolen items. He said there was further conflict and he only used the drain grate because he feared he would be attacked. 16. I have viewed Ex 2, the magnified version of the recording. I accept that the description provided in the facts documents accords with what can be seen. Similarly, in the submissions on behalf of the offenders, the CCTV footage is summarised which I largely accept as accurate. 17. The object that the victim held appears to be a glass bottle. At no time did he use this object as a weapon. It mostly remained in his hand when his arms are by his sides. At no time did he 'arm' himself as is suggested. Although he leant down I also do not observe that he picked up anything other than the bottle. I do not accept that he was at any time the aggressor. I accept that he continued to move towards Richards after he had been hit more than once by the pole. He did at times take hold of the pole in what appears to be a defensive manoeuvre. I determine that he did continue to approach the offender Richards but not in an aggressive manner. I accept that this presents as a means of protection given that when he previously turned away he was hit to the head with the pole. Even when he backed the offender Richards up against the railing he did not strike him. I cannot observe the victim to punch the offender Richards as is suggested. I do observe that he used his hand towards the offender Richards on two occasions. I cannot determine if his hand connected with the offender Richards on either occasion. 18. The first file in Ex 2 runs for 9 minutes 16 seconds. The second file captures the continued involvement of each offender. The offender Amuso delivers a number of punches or kicks to the victim's head. 19. The offender Amuso was largely an observer. Even when there was an altercation between the victim and the offender Richards he initially walked away before returning and standing nearby and observing. I am satisfied beyond reasonable doubt that he was involved by 7.09.08 as a participant in a joint criminal enterprise to assault. 20. The assault concludes by 7.11. I determine both offenders were still involved at this time. The offender Amuso was involved for 1 minute and 50 seconds and performed a lesser role without recourse to weapons. However, he continued to assault throughout the activities performed by the offender Richards. He became involved at a time the pole had been used in his presence and he continued his involvement when the offender Richards attacked the victim with the drain grate. 21. The offender Richards was involved with using two separate weapons at different times to assault the victim over about 5 minutes. I accept that for long periods, although there was movement, he did not use the weapon nor assault. He was the principal aggressor. 22. Submissions were advanced on the relative heights or builds of the offenders and the victim. The offender Amuso was the tallest and heaviest build. The victim was tall but slight. The offender Richards was short and stocky. The assault commenced by the offender Richards picking up the pole. From that point on he had the advantage. 23. The assault upon the victim was captured on CCTV footage. The assaults were not planned and were responsive to the situation as perceived by each offender. On behalf of the offenders, submissions were advanced that it was open to determine that the offender Richards was acting in defence of property, and that the offender Amuso only joined in acting in defence of Richards. These submissions relied upon what was available to be seen on the CCTV footage. 24. The victim's evidence at trial about his conduct is part of the sentence proceedings for the offender Richards. It was suggested that he took property from the offender. In cross-examination at trial, the offender Richards advanced that the victim took both cannabis and a wallet. The victim denied this. The offender Amuso advanced to police under caution that the victim took cannabis and a bottle. The CCTV footage shows the victim holding a bottle in his hand. On the evidence, I accept that this bottle either belonged to the offender Richards or at least both offenders believed it did. This explains why there is a transition from three men seated together to what followed with the assault. On the evidence, I am unable to determine any other interaction that preceded the offending. Both the Crown and the offenders sought to rely upon conduct and words prior to the assaults. I accept that each party bears a different onus. On the evidence, I am unable to accept that there were any threats prior to the assault. 25. I accept that there was some conduct of the victim that aggrieved both offenders. I am prepared to accept on balance that each believed the victim had taken property and this belief initiated the assault by the offender Richards. The victim was assaulted by both offenders. I accept that the offender Amuso, after observing the interaction, became involved initially to pull the victim away from the offender Richards to protect him. This was despite the offender Richards still retaining the pole. I determine the offender Amuso became involved only at a time when the offender Richards, who was the armed aggressor, was perceived by him to require assistance in the assault he had commenced. He joined in the fight only when he perceived the aggressor needed assistance. The actions of the victim in some manner 'provoked' a response in both offenders. Both offenders seriously over reacted to the situation. Any provocation was highly limited. 26. I accept that the bare minimum number of participants was involved to satisfy the in company element for both offences. It was a relatively brief but brutal assault. The offender Richards used a pole and also a metal grate to hit the victim including to the head area. The offender Amuso punched and kicked him. I have considered the type of weapons used. The use of a weapon aggravates the offending. 27. The use of weapons exacerbates the offending. The offender Amuso did not use a weapon but he participated in the offending knowing that the offender Richards had and used a weapon, being the pole and the grate. The victim did not have a weapon. Although he briefly held the pole during the assault, he did not use it. 28. The victim sustained numerous injuries. The Crown particularised the fractures to a finger and nose as constituting the actual bodily harm. The wounds caused to both temples and the area around the lip supported the wounding count. Each required sutures. The most significant injury was that to the lip area. It was a full thickness injury from the nose to the lip. The entire area required plastic surgery. 29. It is uncertain as to when each injury was occasioned and by whom. Mr Amuso committed limited but serious acts. I determine that most of the assault and the occasioning of injury was perpetrated by the offender Richards. The offender Richards was the main aggressor and the person armed with both the pole and the drain grate. He initiated the violent attack. 30. Even holding that belief about stolen property, and the additional concern held by the offender Amuso that the offender Richards required assistance, the conduct was truly excessive to the circumstances. This belief serves only to minimally reduce culpability. 31. I am to consider each of these offenders for their participation in both wounding and causing actual bodily harm to the same victim. 32. This is a case where joint criminal enterprise extends over the injuries and actions perpetrated by both offenders. The offender Richards has additional criminality for acts perpetrated prior to the commencement of the joint criminal enterprise but these acts did not occasion any injury relied upon. It is accepted both offenders are to be sentenced for their respective roles in causing all of the injuries particularised in the facts. 33. Each performed different acts in the fairly sustained altercation. Undoubtedly the offender Richards was more involved and he introduced the use of weapons including the pole and drain grate. However the offender Amuso continued to assault the victim once the weapons were produced. Each is liable for the acts perpetrated by the other however I am mindful of the role each played. 34. The role and conduct of the offender Richards results in a determination of an elevated degree of seriousness compared to the offender Amuso. 35. I determine the objective seriousness of the offender Richards to be in the upper end of the mid-range based on the sustained assault, the number and nature of the injuries and the use of two weapons. 36. I determine the objective seriousness of the offender Amuso to be in the lower end of the mid-range based on the more limited period of his involvement in the assault, the initial reason for his involvement, the number and nature of the injuries and the use of two weapons. I am cognisant that he did not possess or use either weapon. 37. The maximum penalties are 7 years and 10 years respectively. There is an applicable standard non-parole period of 4 years imprisonment for the wounding offence. Both the maximum penalty and where applicable the standard non-parole period operate as legislative guideposts and both represent the Legislature's assessment of the seriousness of the offence. 38. At the time of offending the offender Richards was subject to conditional liberty. He was on a community corrections order imposed on 15 November 2018 for an offence of shoplifting. This order was called up and he was ultimately resentenced to 2 months imprisonment. This sentence, and two others for shoplifting and goods in custody, commenced on the day of his arrest for the index offending and will be relevant when totality is considered. A breach of conditional liberty is a matter of aggravation as it reflects an abuse of the freedom granted by taking the opportunity to further offend. 39. Both offenders have a number of entries on their criminal antecedents. 40. The offender Richards is aged 49. The offender Richards first interacted with the justice system as a child in 1986. He has continued that involvement in the adult jurisdiction. He has committed offences of personal violence including manslaughter, offences of dishonesty and drug offences. He has received various sentencing outcomes including numerous periods in custody. Since 1989 he has benefited from limited periods at liberty. For the most part he has had short periods of days, weeks or months in the community. In the last 6 years he had 9 periods in the community in combination amounting to less than a year. The most recent period of any great length was in 1999 for just over a year. He is evidently institutionalised. The offender's antecedents operate to disentitle him to leniency. 41. The offender Amuso is also aged 49. His offending commenced in 2006 when he was aged 36. His offending primarily involves personal violence with some dishonesty and drug offending. He initially received community orders for offences but was invariably breached and resentenced. He had periods bail refused on matters. His first full time sentence was in 2009. He remained out of custody from 2011 through to 2016 and thereafter he had 5 periods at liberty for short periods. He was released upon a sentence for offences of violence expiring only 2 months prior to the index offending. The offender's antecedents operate to disentitle him to leniency. 42. I accept each has conveyed an expression of remorse as reflected in the psychologists' reports. I am mindful of the submissions advanced by the Crown. I accept that each has a perception of the altercation that is unfounded in some respects. However, I determine each is genuine in their expressed remorse. 43. The offender Richards relies upon the report of Mr Jones. Therein he is diagnosed with a substance abuse disorder, in remission whilst in custody. This is a reference to his amphetamine addiction. The report sets out his use of cannabis commencing at the age of 12, then heroin at the age of 16 and then ice at the age of 35. He stated to Mr Jones that he ceases drug use in custody but upon release it is resumed. He is engaged in a treatment program via Justice Health. He is also said to be suffering a severe level of anxiety and a moderate level of depression. It is stated he is likely to experience symptoms consistent with PTSD. 44. His background is documented including being adopted and the loss of his father with whom he was close to when he was aged 12. He remains close with his adoptive mother. He enjoyed a happy childhood until his father died and thereafter engaged with anti-social peers. His commenced offending and was placed in detention at the age of 15. He was sexually assaulted at the ages of 17 and 18 whilst in detention. He has had three relatively short term relationships and one adult child. He gained limited education and had been employed in numerous unskilled positions in the community and in gaol. In 2002 he was stabbed in the chest, in 2008 he was stabbed in the neck and in 2012 he suffered a brain injury when he fell on train tracks. Mr Jones stated that the offender also is triggered to react when he felt threatened. 45. Mr Jones indicated a medium/high risk of general offending and a moderate to high risk of violent offending. He opined that if the offender completed the recommended treatment plan, which includes seven components, it would enhance his prospects. The offender Richard's prospects of rehabilitation and of not reoffending are poor given his long term offending, the likely triggered response to perceived threats, and his contemplated return to drugs upon release. Personal deterrence plays an important role. 46. The offender Amuso relies upon the background documented in the report of Ms Dombrowski. There is no particular childhood hardship other than an uncle who abused him emotionally. He received limited education and may have had a learning disability. His friends were in a gang although there is no indication of any criminal conduct that attracted police attention. After leaving school he was in employment. He had a long term relationship which ended in 2006 and has a 16 year old daughter whom he last saw in 2008 when she was aged 4. His life began to unravel in 2006 when he commenced using methamphetamine. He continued in employment until 2009 when his work began to suffer from his drug use. He remained in sporadic employment until 2014. He has not worked for the past 6 years. In 2017 he experienced drug induced psychosis and was hospitalised for 2 weeks. He has been in a long term relationship for 13 years. Ms Dombrowksi noted the correlation between the offender's drug use and offending and stated that he required high intensity intervention. Evidently given the 14 years of drug addiction and the correlated offending if the offender continues to use drugs then his risk of reoffending is high. This offence was committed soon after his release into the community. His prospects remain guarded. It follows that a similar finding is made on his prospects of rehabilitation. Specific deterrence continues to be important. 47. It is important to recognise the harm done to the victim of the crime and to the community, and that this is reflected for both offences. General deterrence and denunciation are also important when sentencing for serious acts of violence committed in public. 48. I am mindful to impose sentences that do not create a sense of disparity. There are different findings of objective seriousness for each offender. The offender Richards has considerably more matters listed on his antecedents and he was on a form of conditional liberty. There are different reductions for the pleas of guilty. Additionally, the offender Amuso has the benefit of more favourable findings of his prospects of not reoffending and rehabilitation. 49. In considering totality I am mindful of the temporal connection between the two offences. The offending largely overlapped. The conduct supporting the offences proceeded contemporaneously. However, each offence refers to different injuries sustained. Some modest accumulation is required. Further, the offender Richards was sentenced to three concurrent terms of imprisonment for offences of shoplifting and goods in custody. These offences are entirely unconnected with this offending and despite the separate conduct each sentence was already concurrent and short. The sentence will be accumulated. 50. I have had regard to the purposes of sentencing identified in s.3A Crimes (Sentencing Procedure) Act 1995. The severity of the conduct warrants full time imprisonment. 51. I make a finding of special circumstances based on the obvious need for support with drug addiction upon release into the community. The long term homelessness experienced by both would only exacerbate addiction issues. Supervision and assistance is imperative to provide benefit to both. I will also take into account the role of accumulation. Submissions were advanced on the suggested more onerous conditions in custody during the pandemic. This was not based on the deprivation of visits as this was not a relevant factor. Nor was it based on the inability to access programs or treatment. It was based on the longer periods of lock-down. The indication in submissions was that there was an increased period of being confined to cells. The time indicated from the bar-table is only modestly longer than what I understood was the norm. However, I will take this into account. It will minimally influence sentence. 52. Mr Amuso, for each of the two offences you are convicted. Sentence will commence on 11 May 2019, the day you entered custody. 53. For the offence of assault occasioning actual bodily harm in company I sentence you to a fixed term of 9 months imprisonment to date from 11 May 2019. This reflects what would otherwise have been a non-parole period; 54. For the offence of reckless wounding in company I sentence you to 3 years and 9 months imprisonment with a non-parole period of 2 years to date from 11 July 2019. You will be eligible for release to parole on 10 July 2021. This is a ratio of 53% and gives effect to my finding of special circumstances. 55. The overall sentence is one of 3 years and 11 months with an overall non-parole period of 2 years and 2 months. The overall ratio is one of 55% which maintains my finding of special circumstances. 56. Mr Richards, for each of the two offences you are convicted. Sentence will commence on 11 July 2019, the day after your other sentences expired. 57. For the offence of assault occasioning actual bodily harm in company I sentence you to a fixed term of 1 year and 4 months imprisonment to date from 11 July 2019. This reflects what would otherwise have been a non-parole period; 58. For the offence of reckless wounding in company I sentence you to 6 years and 7 months imprisonment with a non-parole period of 3 years and 7 months to date from 11 September 2019. You will be eligible for release to parole on 10 April 2023. This is a ratio of 54% and gives effect to my finding of special circumstances. 59. The overall sentence is one of 6 years and 9 months with an overall non-parole period of 3 years and 9 months. The overall ratio is one of 55% which maintains my finding of special circumstances. 60. I have taken into account the overall ratio when the earlier sentences are considered. The overall ratio is 56%. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2020