District Court New South Wales Medium Neutral Citation: R v FOSTER [2020] NSWDC 648 Hearing dates: 22 October 2020 Date of orders: 29 October 2020 Decision date: 29 October 2020 Jurisdiction: Criminal Before: Lerve DCJ Decision: Sentenced to imprisonment for 2 years 9 months from 29 October 2020, with non parole period of 1 year 6 months Catchwords: CRIME – grievous bodily harm in company – SENTENCING – relevant factors on sentencing – plea of guilty - general deterrence – special circumstances Legislation Cited: Crimes Act 1900 Children (Criminal Proceedings) Act, 1987 Crimes (Sentencing Procedure) Act, 1999 Cases Cited: Brown v The Queen [2014] NSWCCA 215 Davis v R [2018] NSWCCA 67 Dungay v R [2020] NSWCCA 209 Fangaloka v The Queen [2020] HCASL 12 Fenech v R [2018] NSWCCA 160 Hili & Jones v The Queen [2010] HCA 45 Hoskins v R [2016] NSWCCA 157 Karout v R [2019] NSWCCA 253 Karout v The Queen [2020] HCASL 56 Locke v R (2010) 207 A Crim R 34 McCullough v R [2009] NSWCCA 94 R v Anderson [2012] NSWCCA 175 R v Christopher Michael Hunt [2018] NSWDC 256 R v Dodd (1991) 57 A Crim R 349 R v Fangaloka [2019] NSWCCA 173 R v Loveridge (2014) 243 A Crim R 31 R v McNaughton (2006) 66 NSWLR 566 R v Mitchell & Gallagher (2007) 177 A Crim R 94 R v Murphy [2019] NSWDC 635 R v Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep) R v Osenkowski (1982) 5 A Crim R 394 R v Steven Turner [2019] NSWDC 8 SS v R [2016] NSWCCA 197 Stevens v R [2017] NSWCCA 216 Tepania v R [2018] NSWCCA 247 Valentine v R [2020] NSWCCA 116 Veen v The Queen (No. 2) (1988) 164 CLR 465 Category: Sentence Parties: Director of Public Prosecutions (for the Crown) Lachlan Foster (Offender) Representation: Counsel: Mr P Boulten SC (for the Offender) Solicitors: Mr S Amvrazis (for the Crown) File Number(s): 2019/206512 Publication restriction: None REMARKS ON SENTENCE 1. This is a matter that was heard remotely by me from Wagga Wagga where both parties were in Sydney. 2. The offender pleaded guilty before a Magistrate on 4 June 2020 to one count, namely: "That (he) on or about 30 June 2019 at Manly in the State of New South Wales, while in company of William McManus and Michael Nichols caused grievous bodily harm to Ryan Davies being reckless as to causing actual bodily harm to him". 1. The plea of guilty was maintained at the sentence hearing before me on 22 October 2020 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty. 2. The maximum penalty for the offence is 14 years imprisonment. Parliament has specified a standard non-parole period of 5 years in respect of that offence. I acknowledge that I am engaged in a one-step instinctive process in which two of the principal guideposts are the maximum penalty and the standard non-parole period. Facts 1. The facts are before the court by a way of a set of agreed facts contained within the Crown Tender Bundle, exhibit A on sentence. 2. The events giving rise to the matter before the court occurred in the early hours of the morning of 30 June 2019. By way of background (drawn from the offender's evidence but not contained within the agreed facts) on the evening of 29 June 2019 the offender had been at a birthday party for his employer at which function there was an open and free bar. The offender consumed a considerable amount of beer then vodka mixed variously with lemonade and Red Bull. 3. Ryan Davies - the victim in the matter - and his girlfriend Amber Blair attended the Bavarian Bier Café that is located near Manly wharf in the evening and then moved on to various other licenced venues in the vicinity. The victim was in the company of his girlfriend and a number of friends including Justin Clarke, Claire Richards, Amy Buening and Caitlin Kerle after leaving the Shark Bar at about 11pm. The group went to premises known as The Ivanhoe, located on the Manly Corso. 4. At about 1.20am (on 30 June 2019) the victim and his group of friends went to a kebab shop. They waited outside and sat on the outdoor sculptures opposite the shop while waiting for their food. 5. At about 1.50am the offender and his friends, Michael Nichols and William McManus were at the same kebab shop. Each of them purchased a kebab and stood outside. The offender ripped the paper off his kebab and threw it on to the ground. The victim and his group were passing by. Claire Richards saw the offender throw the paper on the ground and said to Amber Blair words to the effect of, "Seriously, there is a bin right there". 6. The offender, Nichols and McManus left the kebab shop and walked along Sydney Road behind Davies, Blair, Clarke, Richard, Buening and Kerle. The offender, Nichols and McManus engaged in some banter as they continued walking. Blair said to the offender's group, "Piss off and eat your kebabs elsewhere, keep walking and go away" to which they (the word used in the facts) yelled back, "You look like a fucking junkie mate" to Justin Clarke. Both groups came to a stop outside the convenience store located on the corner of Sydney Road and Central Avenue. 7. The two groups started pushing and shoving each other for a short time before Clarke punched McManus in the head with a reasonable amount of force. A brawl then erupted and Nichols raised his right hand hitting Davies to the left side of his face in a forceful manner. 8. Davies (the victim) was knocked to the ground and assumed the foetal position. As he was on the ground he was further assaulted by the offender, Nichols and McManus. The offender stood over Davies and with a left clenched fist raised his hand behind his head and punched him three times to the face and head area. The offender then kicked Davies three times with force before using his right foot to stomp on his head. Whilst the offender was assaulting the victim Nichols and McManus kicked the victim several times to his leg and torso area. 9. Richards grabbed McManus who was kicking the victim and pushed him away. Buening grabbed the offender and pushed him away from the victim. The offender said, "I'll hit a bitch. I've hit a bitch before". Buening then went to assist Clarke. 10. Blair ran towards the offender and tried to hit him in the face. The offender responded, "You hit like a bitch". Richards saw what happened and ran over to pull Blair from the situation. Clarke was walking towards Market Lane and yelling. He approached the offender but Richards ran in between the two, grabbed Clarke, turned him around and said, "It's not worth it, it's not worth it". Richards ran and took refuge in the Mini Mart close by. 11. Nichols and McManus left the scene. The offender remained behind and continued to exchange words with Clarke until they were separated by the police. Foster declined to be interviewed by the police. 12. The victim was taken by ambulance to the Royal North Shore Hospital where he received treatment for significant injuries to his face, spine and left leg. He suffered fractures to the eyebrow, cheek, jaw and two fractures to his left leg. The injuries are set out at p 3 of the agreed facts: 1. Left tibial eminence fracture and posterolateral tibial plateau fracture. The victim underwent surgery on 2 July 2019 which involved a left knee arthroscopic reduction and fixation of the left tibial eminence with the insertion of four wires with nil complications. Post-surgery management included no weight to be placed on the left limb and for it to remain in extension for four weeks, wound check at two weeks. The wires were removed on 29 July 2019. 2. Multiple facial fractures including a displaced fracture of the right side zygomatic arch, displaced fractures of the anterior, lateral and medial wall of the right maxillary sinus, fracture of the lateral pterygoid plate on the right, a blowout fracture of the inferior wall of the right orbit, a fracture of the lateral wall of the right orbit and a non-displaced nasal fracture. Surgery on 4 July 2019 involved open reduction and internal fixation of right zygomatic fracture for right orbital floor fracture which included the insertion of three metal plates with nil complications. Post-surgery management included no nose blowing, scalp staples to be removed on 15 July 2019, use of mouth wash four times per day after meals, soft diet for two weeks and follow up on 12 July 2019; and 3. Multiple lacerations to the victim's face, the repair of which included 20 sutures to his left eyebrow, the sutures being removed on 8 July 2019. 1. The victim was released from hospital on 9 July 2019. 2. The person Nichols presented himself at Dee Why Police Station on 4 July 2019 in response to a Facebook Media Release appealing to the public for the identity of two of the four male offenders. He participated in an interview in which he identified himself on the CCTV footage from outside the kebab shop, he told police he had no recollection of the brawl and he had never met any of the other male offenders depicted in the CCTV footage. 3. On 8 July 2019 police received a call from the solicitor acting for McManus who advised that McManus would present himself at the Manly Police Station in response to the media release in the Manly Daily. He declined to be interviewed. 4. Police executed a search warrant at McManus' house and located a blue Canadian bear t-shirt with an orange/gold logo on the front identical to one depicted in the CCTV footage. During a canvass of the area police showed a still from the footage to a person who identified McManus as a member of the gym that she attended. 5. While dealing with the facts I note that the offender has maintained throughout that he has little or no memory of the actual incident during which the victim received the injuries. There is no reason to reject the assertions by the offender that he has no memory of those events. No submission was made but I gather from the examination in chief and cross-examination of the offender at the sentence hearing that the events are shown clearly enough on CCTV footage. Assessment 1. As the matter carries a standard non-parole period it is necessary to make some assessment of the objective seriousness of the matter. As has been made clear in a number of authorities - particularly R v Mitchell & Gallagher (2007) 177 A Crim R 94 at [27] per Howie J and McCullough v R [2009] NSWCCA 94 at [37] per Howie J - offences such as the matter presently under consideration are result offences and generally the more serious the injuries the more objectively serious the matter will be. Of course, the nature and extent of the assault is also relevant to the assessment of the seriousness. 2. However, in this matter there is a complicating factor to the assessment of the objective seriousness. Johnson J in Tepania v R [2018] NSWCCA 247 at [112] said: "In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J)." 1. I will deal with the issue in greater detail when dealing with the subjective case, however Dr Jason Gallate, psychologist, says at p 11-12 of his first report, exhibit 2 on sentence: "Mr Foster's ADHD, Depression (in remission) and alcohol use disorder (in remission) constitute mental illnesses within the meaning of the Mental Health (Forensic Provisions) Act. At the time of the interview he was not found to be a mentally ill person within the meaning of the Mental Health Act. It is my opinion that his mental health has some bearing on the matters that are before the court. It is my opinion that Mr Foster's Depression and Alcohol Use Disorder (and to a lesser extent his ADHD) had a causal influence on his behaviour on the night of 29th and morning of 30th June. Mr Foster had a depressed baseline and low self-esteem and although he attended his boss' birthday party he struggled to celebrate with his colleagues. As a proxy to being in a good mood he drank as much as he could (taking advantage of the bar tab). This led to a far greater level of intoxication than he intended (this included both loss of impulse inhibition and memory loss). In turn this extreme level of intoxication resulted in all of the trouble in which Mr Foster finds himself. Also contributing to his behaviour is Mr Foster's ADHD. One key symptom of Mr Foster's disorder is a lack of impulse control. None of these mental health issues exonerates Mr Foster but in my opinion they should be considered as contributing factors". 1. In his comprehensive oral submissions Mr Boulten SC concentrated on the issue of the offender's ADHD noting appropriately that the self-induced intoxication cannot be a mitigating factor. In this regard see s 21A(2)(5AA) Crimes (Sentencing Procedure) Act, 1999. The thrust of senior counsel's submissions, at least as I understood them, was that the ADHD suffered by the offender impacts on the offender's moral culpability and the significance attributed to general deterrence. I agree with those submissions. However, it is not without some significance that Dr Gallate says, "It is my opinion that Mr Foster's Depression and Alcohol Use Disorder (and to a lesser extent his ADHD) had a causal influence on his behaviour on the night of 29th and morning of 30th June". The ADHD was of lesser significance than the depression and alcohol use disorder. 2. Returning to the offending, the offender punched, kicked and stomped on the victim while the victim was on the ground. As a result of the actions of the offender and the others with him the victim received substantial injuries to the face and his left leg as particularised in some detail when dealing with the facts. 3. I am not favoured with any material by way of victim impact statement or otherwise as to whether the victim suffers any ongoing issues, difficulties or sequelae as a result of the events of 30 June 2019. Accordingly, as I made clear during the sentence hearing I proceed on the basis that I cannot be satisfied beyond reasonable doubt that there are any such issues. 4. The Crown submits (written submissions, MFI 1 on sentence) that the matter is within the mid-range. In the course of the sentence hearing I indicated a preliminary view that the matter was at the lower end of the mid-range of seriousness. Mr Boulten SC put that the matter was less serious than what I expressed in that preliminary view. 5. Noting the nature of the attack, which was sustained and violent and the nature of the injuries, in particular taking into account what is contemplated by grievous bodily harm and taking into account the ADHD and the various submissions of the parties I maintain my preliminary opinion that the matter is at the lower end of the mid-range of objective seriousness. Criminal History 1. The offender turned 20 years of age on the day of the sentence hearing, i.e. 22 October 2020. He was 18 years and 8 months at the time of the offence. In September 2016 the offender was dealt with by way of Conditional Caution pursuant to s 33(1)(A(ii) of the Children (Criminal Proceedings) Act, 1987 for Common Assault and Assault Occasioning Actual Bodily Harm. In March 2017 he was dealt with by way of good behaviour bond pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act for Resist Police, Affray and Assault Police. 2. The Crown put in written submissions - although when challenged by me at the sentence hearing withdrew the submission - that s 21A(2)(d) of the Crimes (Sentencing Procedure) Act is enlivened, making the record a factor of statutory aggravation. This is an issue with which I have been confronted on a number of occasions (almost invariably inappropriately) at Wagga Wagga. 3. My understanding of the authorities on this issue is that for s 21A(2)(d) of the Crimes (Sentencing Procedure) Act to be enlivened the criminal history must be one that would enliven the principles enunciated by the High Court in Veen v The Queen (No. 2) (1988) 164 CLR 465. See also R v McNaughton (2006) 66 NSWLR 566. The record of the offender simply cannot enliven those principles, particularly given his age. I have dealt with that submission as it was made in the Crown's submissions. 4. However, on the issue of the offender's juvenile record, there is of course the decision of the Court of Criminal Appeal in Dungay v R [2020] NSWCCA 209, especially at [91]-[97]. Noting the age of the matters recorded in the Children's Court those matters must be ignored for the purpose of this matter and the offender be dealt with as a person of prior good character. Indeed given the authority of Siddiqui v R (Cth) [2015] NSWCCA 169 the record may not be admissible for any purpose. General Deterrence 1. While I agree with Senior Counsel for the offender that the impact of general deterrence is moderated in this case because of the issue of the offender's ADHD, nevertheless it still has some work to do in this sentencing exercise. The incident that brings the offender before the court was particularly violent, noting that on the agreed facts the offender punched, kicked and stomped the victim while he was on the ground. The offender was one of three involved in the attack, noting that being in company is an element of the offence and cannot be a factor of aggravation. Significant injuries were occasioned. The offender was significantly affected by alcohol. 2. Although dealing with different and more serious offending, the Court (Bathurst CJ, Johnson & Hulme JJ) in R v Loveridge (2014) 243 A Crim R 31 said at [102]-[104]: "In the context of a case of assault occasioning actual bodily harm, in which the drunken offender punched the victim in the face without warning or reason when the victim was standing outside a city nightclub in 2010, Hoeben CJ at CL (McCallum and Schmidt JJ agreeing) said in Pattalis v R at [23]: "Over recent years, the incidence of such offences, particularly when associated with the excessive consumption of alcohol, have been all too frequent. Such offences are a cause for grave disquiet and the community is understandably angry and frustrated at their occurrence. Regrettably, it is now notorious (as his Honour recognised) that a single punch can not only cause catastrophic injuries but also death. For offences of this kind, the community has the rightful expectation that judicial officers will impose meaningful penalties." [103] Other decisions of this Court have emphasised that violence on the streets, especially by young men in company and under the influence of alcohol and drugs, is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence: R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at 101 [29]. Even in the case of juvenile offenders (which the Respondent is not), this Court has emphasised that, in relation to crimes of violence committed in the streets by groups of young persons, general deterrence should be given substantial weight notwithstanding the youth of the offenders: AI v R [2011] NSWCCA 95 at [69]; MB v R [2013] NSWCCA 254 at [27]. [104] This Court has emphasised that the principles of general deterrence and denunciation of crimes serve as a means of protection of the public: R v AEM [2002] NSWCCA 58 at [92]." Case for the offender 1. The offender gave evidence and was cross-examined. In addition a considerable volume of written material was tendered on behalf of the offender. The written material was constituted by: Exhibit 1: Report of Dr Hyasat of 4 July 2019 2: Report of Dr Jason Gallate of 25 February 2020 3: Report of Dr Jason Gallate of 16 October 2020 4: Reports from Dr Antony Milch, Psychiatrist dated 22 July 2015; 1 September 2015, 2 November 2015, 12 September 2017 and 11 June 2020; 5: Testimonial References from Marc and Kate Walker, Hugh Kennedy, David Foster, Michael Saleh, James Matheson-MacDonald, Fiona Brien, Russell Mealy, "Dan" – director of planbuilt.com, and Sally Spriggs 6: Time line from the offender's parents; and 7: Letter of apology from the offender to the victim. 1. Going initially to the offender's evidence he said that he lived with his parents, who were in court supporting him. He agreed with the facts as presented to the court. He said that on the night he had consumed an "astonishing amount" of alcohol, starting with Corona Beer and then moving on the vodka and lemonade and vodka and Red Bull. The whole night is a blur. He can vaguely remember leaving the birthday party. He has a vague recollection of being at the kebab shop. He has seen the CCTV footage of the events which he has watched multiple times. 2. The offender went on to say that he felt ashamed of his actions for the trauma through which he put the victim and his family. He would expect the victim to feel traumatised and angry. He acknowledged that he contributed to the infliction of the injuries sustained by the victim. Later in his evidence the offender said that he felt like an idiot for the trouble that he has caused his parents. I am more than satisfied on balance that the offender is remorseful. 3. Since the offence the offender has been on bail. He has complied with his bail conditions. The last alcohol he had was a glass of wine at Christmas lunch with the family at Christmas 2019. He has also ceased use of illicit substances although the last time he used illicit substances was before the offence. 4. The evidence continued that he has been regularly receiving counselling relating to drug and alcohol abuse. He was attending sessions once per week before the COVID-19 issues arose but still attends now by phone. He said that he has benefited from that counselling in that he has learnt how to enjoy himself without being intoxicated or to use the offender's words, "without obliterating myself". 5. Further the offender gave evidence that he has been receiving therapy from Dr Jason Gallate, who was also in court supporting the offender. He intends to continue the treatment with Dr Gallate who has given him strategies to cope. 6. The offender has also consulted Dr Milch, who diagnosed the ADHD. There have been issues with the offender's ADHD medication but they seem to have been resolved. The offender went on to say in evidence that the medication that he is now on calms him down and he now thinks before he acts. 7. The evidence continued that he now works full time as a concrete pump linesman. He has completed his apprenticeship as a carpenter. He is able to focus on his work. He said that given his various issues that it was not a good idea for him to be using power tools. 8. He acknowledged that he is looking at a prison sentence. Drawing on his limited experience of a few hours in custody at the police station when first arrested he said that he thought it would be boring and it would be difficult to cope with being in custody. 9. Further, the offender said that he now has the skills to avoid drinking the amount of liquor that he drank on the night of the offence and to avoid trouble. He has had no contact with the other young men in whose company he was at the time of the commission of the offence. 10. The offender was cross-examined. The offender maintained that he could not remember much of the events. As I have already observed there is no reason to doubt these assertions. There was also cross-examination on the issue of the ADHD medication. It seems that the issue of medication has been resolved. I have a note to the effect that the offender accepted that the attack was violent and cowardly. 11. Given the efforts he has taken, including consultation with appropriate health professionals and taking advice and counselling and being abstinent from alcohol, I am satisfied on balance that the offender is unlikely to re-offend and further that the offender has good prospects of rehabilitation. 12. I will now deal with the two reports from Dr Jason Gallate, Psychologist. The history included drinking a very large amount of alcohol. The history also included that the offender remembered very little after leaving the birthday party. The offender told Dr Gallate that he (the offender) was at "blackout point" with the amount of alcohol he had consumed. The offender told Dr Gallate that he had not had any further memories come back but that he woke the day after the incident feeling that something was wrong. Dr Gallate opines (p 3 exhibit 2) that the offender appears genuine in his lack of memory. Dr Gallate is also of the opinion that the offender's expressions of remorse are genuine. He says, "Mr Foster's genuine remorse has also been unwavering throughout the course of therapy". Dr Gallate notes that the offender has been attending drug and alcohol counselling. 13. At pp 4-6 of exhibit 2 there is considerable detail by Dr Gallate of criminal litigation involving the offender's father who was accused of sexually assaulting the offender's older sister. The reports indicate that the report was a result of a false recovered memory. The offender's father was prosecuted but the trial did not proceed. The family moved from Byron Bay to the northern beaches in Sydney as a result of the upheaval. Dr Gallate opines that the offender holds a large amount of latent anger for his father. He also opines (p 5 exhibit 2) that "it appears that Mr Foster has never properly recovered or reconciled his conflicted emotions or cognitions". 14. The report then goes on to deal with the diagnosis of ADHD by Dr Milch and the various medications used. Ritalin did not agree with the offender and lisdexamphetamine had adverse side effects. The offender did not enjoy school and was expelled in Year 10. 15. It seems the offender commenced drinking alcohol to excess at about the time he commenced his building apprenticeship. He also began using MDMA. The drinking and drug taking continued to late 2018 at which time the offender took steps to change his habits and he stopped taking MDMA, however, he continued to drink alcohol to excess. Dr Gallate notes (p 7 exhibit 2) that the offender has successfully engaged in treatment in respect of his drinking, noting, "Mr Foster has used these sessions very productively…he stated he has learnt that there are joys in life that haven't got repercussions". 16. At p 7 of exhibit 2 Dr Gallate says: "Mr Foster's transformation in treatment has been remarkable. He has been an exemplary patient. He has gained significant and difficult insight into his own development and applied these insights to transform his behaviour: Moving from an insecure and defended personality to a more expansive, compassionate, understanding and calm – even relatively mature – individual. The caveat to this, is that this has been 'in the therapy room' – (I have not been able to see how he behaves in social or familial situations). And, Mr Foster's dramatically changed behaviour has been significantly supported by the bail imposed curfew, restraining him from being out, at all, in the evening. Nonetheless his change has been impressive, and although to some degree untested this lack of opportunity to regress should not be considered as commission of such." 1. Dr Gallate then returns to the issue involving the allegations against the offender's father. It seems (and understandably so) that the offender had difficulties coping with the stress of what was going on at the time. 2. The offender's "deep remorse" is set out at p 9 of the report. At p 10 Dr Gallate notes that the offender's account of the facts and his life story has remained internally consistent. The offender is (again understandably) "terrified of going to prison". 3. Dr Gallate opines at p 10 of exhibit 2 that the offender's ADHD was never doubted and observes that the offender has difficulty sitting in a chair for more than five minutes without fidgeting. At p 11 of exhibit 2 the doctor diagnoses Attention Deficit Hyperactivity Disorder, Depression and Alcohol Use Disorder with the latter two of those being in remission. It is at the bottom of p 11 that Dr Gallate sets out the opinion as to the causal connection between the depression and alcohol use disorder and to a lesser extent the ADHD and the offending. I have extracted that part of the report when dealing with the objective seriousness of the matter. 4. Dr Gallate recommends that the offender continues weekly physiotherapy, that he continues regular drug and alcohol testing, that some form of curfew is maintained and that he continues with the counselling for drugs and alcohol. 5. Dr Gallate's second and supplementary report is exhibit 3. At p 2 of that report Dr Gallate sets out that although the offender still has considerable work to do he has less anger towards his father and that the offender's self-esteem and confidence have continued to increase. He has adopted more mature values. At p 3 Dr Gallate says that the offender has "taken every opportunity since his arrest to rehabilitate himself" and opines that the offender is unlikely to re-offend. 6. The contents of Dr Gallate's reports fortify me in the findings that I have already made favourable to the offender that he is remorseful, that he is unlikely to re-offend and that he has good prospects of rehabilitation. 7. Exhibit 4 on sentence is a series of five reports from Dr Antony Milch ranging from 22 July 2015 to 11 June 2020. The first of those reports (i.e. of 22 July 2015) makes the diagnosis of ADHD. On 1 September 2015 Dr Milch observed that the offender was "progressing well" and benefited from the short acting methylphenidate that was prescribed. 8. In the report of 2 November 2015 Dr Milch reports that the offender reported mood swings and accordingly, the medication Concerta 36 was ceased. The fact that the offender had been experiencing anger management problems was noted as was that additional strategies to manage his anger are likely to be necessary. In the report of 12 September 2017 issues relating to medication were noted. It was also noted that "Lachlan's longstanding anger management problem continued to flare up every now and then" and that he had ceased counselling. 9. In the most recent report i.e. 11 June 2020 it is noted that the offender last attended for review in September 2017. Dr Milch observed that the offender has been prescribed Vyvanse 30mg daily to manage persistent symptoms of ADHD but it "was unfortunate that he failed to adhere to this treatment or assertively address his longstanding anger management problems". The fact that the offender was in full time employment was described as encouraging. The offender's remorse is noted. Dr Milch opined that "on the adult ADHD self-report scale Lachlan identified persistent significant symptoms of ADHD. It was agreed that the offender would continue with the Vyvanse. 10. Clearly, the offender suffers from ADHD. The diagnosis is made by Dr Milch. Given Dr Gallate's report it is clear that there is a causal link between the ADHD and the offending. However, at the risk of repetition, the causal link was with the depression and alcohol dependence and to a lesser extent the ADHD. The moral culpability of the offender is reduced as is the impact of general deterrence in this sentencing exercise. 11. Exhibit 6 on sentence is what Mr Boulten SC described as a "Time Line" that was prepared by the offender's parents. It sets out the life history of the offender and the various issues that confronted the family over the years since the offender was born. The offender's younger brother has autism. The offender was a keen sportsman. It seems that there were issues relating to the formal academic aspect of his education, no doubt explained by the later diagnosis of ADHD. 12. The issue of the allegations made against the offender's father by the offender's half-sister are prominent in Exhibit 6. The offender was initially unaware of the charges. The trial was due to commence on the offender's 13th birthday, 22 October 2013. Ironically, 22 October 2020 was the sentence date set for the hearing of this matter. 13. In 2015 the complaints from the offender's teachers about the offender's rude and disrespectful behaviour escalated. His parents note that the offender disengaged and struggled at school. Later his defiance at home escalated and the offender formed friendships with older persons, who it would seem had a negative impact on the offender. He began drinking regularly at age 16. The relationship between the offender and his father suffered with "tensions coming to an all-time high". 14. The appearances of the offender before the Children's Court are dealt with in some detail by the offender's parents in exhibit 6. The offender's mother called the police when the offender physically attacked his father but by the time they arrived the situation had "defused". The offender was withdrawn from school and began employment as an apprentice. 15. According the offender's parents, the offender went well with the apprenticeship. The second appearance before the Children's Court occurred after the offender had been drinking and taking MDMA. It seems that there is some dispute as to what occurred. 16. The document then goes on to set out that the offender enjoyed some considerable success as an apprentice. The incident to which this matter relates is referred at pp 6 and 7 of exhibit 6. The offender has complied with his bail conditions and is deeply remorseful. The offender's parents conclude by saying that the offender is a "fun loving individual who has been damaged by family circumstance". Concern is expressed about the offender's use of alcohol and drugs but the positive reaction to counselling is noted. 17. The issue relating to the proceedings against the offender's father is regrettable in the extreme. I infer from Dr Gallate's reports that those issues are in part the cause of at least some of the problems faced by the offender. The family may well have some justification to feel jaundiced or resentful of the criminal justice system. Ultimately, it is just one of the many factors in the offender's very strong subjective case. 18. Exhibit 5 on sentence is a series of nine testimonial references from Marc and Kate Walker (offender's aunt and uncle), Hugh Kennedy (family friend), David Foster (uncle), Michael Saleh (grandfather), James Matheson-MacDonald (previous employer), Fiona Brien (family friend), Russell Mealy (family friend), "Dan" (Director of planbuilt.com – employer) and Sally Spriggs (family friend). All referees state that they are aware of the facts of the matter. 19. A common theme to the references is that the conduct to which this matter relates is out of character and the offender's remorse. A number of the extended family also speak of the issues relating to the offender's father. The offender's sporting prowess is referred to by a number of his referees. The people who have employed him speak well of his work ethic. It speaks well of the offender that he can assemble references from a significant number of people. 20. Exhibit 7 is a letter of apology addressed to the victim. It is a matter for the prosecuting authorities and the victim as to whether that is ever sent. It simply fortifies the findings already made that the offender is remorseful. Submissions 1. The Crown submitted (written submissions, MFI 1 on sentence) that the matter was within the mid-range of seriousness. The liability of all participants of the joint criminal enterprise of which this offender was part is the subject of submissions by the Crown. The facts are dealt with in some detail in the submissions. There is no controversy so far as the facts are concerned. I have already dealt with the initial submission that s 21A(2)(d) of the Crimes (Sentencing Procedure) Act is enlivened by the offender's criminal history. 2. The Crown submitted that there should be a "strong element of general deterrence". General deterrence must have some part to play, but given the issues already dealt with it does not attain the same significance that it might in other cases. 3. The Crown submitted in writing and also orally at the sentence hearing that no other sentence other than that of full time custody would be appropriate given the offending. I infer the Crown submits that I would not find that the offender is unlikely to re-offend. The Crown cautions against double counting so far as a finding of special circumstances is concerned. 4. Mr Boulten SC addressed at some length on behalf of the offender. This is an observation not a criticism. There was a great deal of material on which to address. 5. Senior Counsel's ultimate – and primary – submission was that the court would impose a sentence of two years or less and direct that it be served by way of Intensive Correction Order. 6. My initial view that I voiced relatively early in the sentence hearing was that the offending and injuries were such that despite a very strong subjective case the total sentence would need to exceed that which could be served by way of Intensive Correction Order. 7. Mr Boulton SC addressed this by directing me to the statistics kept by the Judicial Commission. As the matter was heard remotely I did not take a copy of the JIRS statistics but since the sentence hearing I have looked closely at those statistics and a number of cases to which they relate. Before dealing with Senior Counsel's other submissions I will deal with those cases. 8. I have considered the Court of Criminal Appeal decisions of Stevens v R [2017] NSWCCA 216, Davis v R [2018] NSWCCA 67 and Fenech v R [2018] NSWCCA 160. I have considered three decisions from my colleagues on the District Court namely R v Christopher Michael Hunt [2018] NSWDC 256 (Judge Mahony SC), R v Steven Turner [2019] NSWDC 8 (Judge Hatzistergos) and R v Murphy [2019] NSWDC 635 (Judge Buscombe). 9. Stevens involved a single (what has become known as a "coward's") punch where the offender was intoxicated but one which caused significant injuries as a result of the victim falling heavily. The injuries included left forehead and brow laceration with injury to the left temporal branch of the facial nerve, left frontal lobe haemorrhagic contusion of the brain, minimally displaced medial orbital wall fracture and plastic surgery treatment was required. The notation at [19] of the decision setting out the injuries includes a notation that "May regain some motor function of left forehead in 6 months – 1 year but it will likely not be a complete recovery to the uninjured state. Bellew J (giving the judgment of the court) said at [30]; "…A haemorrhagic contusion of the brain is a traumatic brain injury. The fact that it apparently produced no ongoing sequelae does not mean that it was not significant. Moreover, it was not the only injury and the victim has been left with permanent scarring and a prolonged period of paralysis of the left forehead". 1. A plea of guilty was entered to a charge contrary to s 35(2) which carries a lesser maximum sentence than the matter I am considering. A sentence of 4 years 6 months with a non parole period of 2 years and 9 months was found not to be manifestly excessive and the appeal dismissed. 2. In Davis the offender told the sentencing court that he had consumed 8 to 10 drinks over 5 hours. There was a charge of Reckless Wounding and an offence contrary to s 35(1) of the Crimes Act 1900. The judge at first instance rejected that there had been provocation. The assault was constituted by a single punch causing the victim to fall heavily, striking his head on a tiled floor. The victim suffered two breaks to his lower jaw, lost a tooth, suffered significant bruising and swelling to his face and suffered a stroke in the days following hospitalisation. The judge at first instance found that the offender in that case could not have foreseen the stroke and its consequences. The offence was not planned. The sentence imposed in respect of the offence contrary to s 35(1) of the Crimes Act was total sentence of 3 years and 2 months with a non-parole period of 1 year. The total effective sentence involved a non-parole period of 2 years. The appeal was dismissed. 3. In Fenech the sentence of 3 years with a non-parole period of 2 years was imposed after trial where the applicant (Fenech) was convicted of an offence contrary to s 35(1) of the Crimes Act. Significantly, the applicant did not actively participate in the infliction of the harm but was part of a joint criminal enterprise. The injuries included extensive soft tissue injury in the nature of swelling and bruising to his entire face and fracture of the floor of the eye socket resulting in the contents of the socket including fat and some muscle moving down into the sinus. Surgery involving open reduction internal fixation of the right orbital floor fracture with a titanium mesh plate was required. It was expected that the victim would make a full recovery but be left with scaring. The appeal was dismissed. 4. Now, going to the three matters dealt with in the District Court. In Hunt the offender was sentenced to a total of 3 years 9 months with a non-parole period of 2 years 6 months. The offender had a substantial criminal history and the plea of guilty to the offence contrary to s 35(1) was entered late. The offender and victim were throwing punches at each other and the co-offender was initially watching. The co-offender moved in, swung two punches which connected with the victim's head causing him to fall to the floor. The offender then kicked the victim as he lay on the floor. The victim was taken to hospital and found to have a subdural haematoma, cerebral frontal contusion and a non-displaced right posterior parietal bone fracture as well as superficial cuts abrasions and bruising. 5. Turner was sentenced to a total of 2 years 7 months with a non-parole period of 1 year 1 month in respect of an offence contrary to s 35(1) of the Crimes Act. A fight broke out. There was a fight for control of a mobile phone. The offender punched the victim once to the right side of the face causing the victim to fall backwards in an upright position. The victim's head connected heavily with the concrete footpath and witnesses saw blood come from the victim's mouth. The victim suffered a fracture to the right side of the petrous temporal bone and six stitches to the inside of his mouth. The victim also suffered profound loss of hearing in his right ear. The sentencing judge found that the matter fell in the upper end of the low range of seriousness. The plea was entered early and there was a strong subjective case including prior good character. The sentencing judge also found that the offender was remorseful, that he had good prospects of rehabilitation and was unlikely to re-offend. 6. Murphy was convicted of an offence contrary to s 35(1) of the Crimes Act by a jury however that offence was an alternative to a more serious charge. The offender was sentenced to a total of 3 years with a non-parole period of 1 year 8 months. The offender and co-offender met up out the front of the unit. They walked to the victim who was seated. The offender punched the victim once. The co-offender had a hammer with which the co-offender struck the victim at least three to five times. The offender called out, "that's enough, you'll kill him". The sentencing judge found that there was a level of prearrangement between the offenders but that the offender was not aware that the co-offender had a hammer with him (see [14] of the sentence judgment). The offender had a substantial record. 7. Returning to the issue of the statistics, I note that since the sentencing reforms of 2018 there is a sample of 32 cases of offences contrary to s 35(1) of the Crimes Act. Eleven were dealt with by way of Intensive Correction Order and 21 were dealt with by total terms of imprisonment ranging from 2 years to 7 years with nine cases receiving a total sentence of 3 years. 8. The "pre-sentencing reform" statistics contain a sample of 115 cases. Ninety‑one of those cases or 79% received sentences of full time imprisonment. Twelve cases were dealt with by way of suspended sentence and seven by way of Intensive Correction Order. In respect of those matters where a sentence of full time imprisonment was imposed the total sentences varied between 12 months and 10 years with 27 cases or almost 30% receiving a total sentence of 3 years. 9. Mr Boulten SC appropriately acknowledged that statistics were a "blunt instrument". In dealing with statistics I note the decision of Hili & Jones v The Queen [2010] HCA 45 and more recently the decision of Brown v The Queen [2014] NSWCCA 215 where Garling J (Beazley P, Hulme J agreeing) said at [80]-[81]: "It is important to note that the High Court has said in many cases that the consistency in sentencing which is sought from intermediate appellate courts, is not numerical equivalence but rather consistency in the application of relevant legal principle: Hili v The Queen; Jones v The Queen [2010 HCA 45; 242 CLR 520 at [48]-[49]; Barbaro at [40]. [81] In offences such as the one with which the Court is here concerned, the statistics from the Judicial Commission are a particularly blunt tool because the injuries which were actually inflicted are not described. Whether the sentences which were imposed upon offenders who had a prior criminal history, and what that criminal history was, are not described and, the range of possible factual circumstances involved in an offence such as this is broad." 1. In Brown the Court of Criminal Appeal was dealing with offending contrary to s 35(2) of the Crimes Act. I also note the observations of the Chief Justice in SS v R [2016] NSWCCA 197 at [61]ff. 2. My initial reaction when I read the material prior to the sentence hearing was that despite what was obviously a very strong subjective case the offending was such (noting in particular the ferocity of the attack and the injuries) that any sentence would have to exceed that which could be served by way of Intensive Correction Order. Further, my initial reaction was that I should deal with the matter by way of ex-tempore judgment on the day of the sentence hearing. 3. However, Mr Boulten SC was quite strong and persuasive with his submission that when the statistics are properly considered and given the strong subjective case the sentence could be two years or less and be served by way of intensive correction order. Indeed, my note of the submission (noting that generally sentencing judges do not receive a transcript of the sentencing submissions) is to the effect that in this case as an appropriate mark of general deterrence as well as punishing the offender and public condemnation would not require the imposition of a sentence in excess of two years. Mr Boulten SC then went on to address on the statistics. It was essentially this submission that caused me to pause and consider whether what was being submitted by Senior Counsel may be an appropriate course. 4. I have given this matter a great deal of consideration. I have spent several hours researching the statistics and the cases to which they refer. When all of those cases are considered along with the offending in this matter, noting as I have already emphasised the injuries inflicted and the nature of the attack, I am of the opinion that my initial view was correct and the total sentence must exceed that which is able to be served by way of Intensive Correction Order. Factored into this determination, is of course the very strong subjective case. 5. In the course of submissions Mr Boulten SC informed me that the controversy surrounding s 66(1) of the Crimes (Sentencing Procedure) Act and the series of authorities including R v Fangaloka [2019] NSWCCA 173 has not been resolved and that the issue was recently and once again litigated in the Court of Criminal Appeal. As a first instance sentencing judge I am obliged to follow precedent. I note the observations of Basten JA in Fangaloka at [64]: "…Equally, there is no doubt that a sentencing court must have regard to the personal circumstances of the offender; but they should not divert the court from imposing adequate punishment, having regard to the objective gravity of the offence". 1. The High Court of Australia has refused Special Leave on the papers in both Fangaloka and Karout v R [2019] NSWCCA 253 – see [2020] HCASL 12 and [2020] HCASL 56 respectively. Essentially the doctrine of precedent requires that I accept that those are (at the time of this decision) the relevant and appropriate authorities for me to apply. 2. The offender was 18 years and 8 months of age at the time of the offending. He is still a young man. Accordingly, he is entitled to consideration for his youth. In this regard I note the review of authorities undertaken by Hulme J (Simpson & Hoeben JJ (as their Honours then were) agreeing) in Locke v R (2010) 207 A Crim R 34 at [41]-[49]. At [49] Hulme J concluded: "In my view the youthfulness of the applicant was relevant to the setting of not only the non-parole periods but also the overall terms of the sentences." 1. Mr Boulten SC addressed at some length on the issue of the offender's ADHD. I have already found that the impact of general deterrence is reduced. I accept that the offender is now appropriately medicated and that he has taken substantial steps in rehabilitation. Those steps towards rehabilitation were appropriately emphasised by senior counsel for the offender. 2. Senior Counsel emphasised the fact that the offender, who is still very young, is now fully employed as a qualified tradesman. The therapy that the offender is receiving would be severely interrupted if a sentence of full-time custody was imposed. He would be withdrawn from the home where there is substantial support. It was put that the offender is at the "crossroads" and the court was reminded of the decision of the Court of Criminal Appeal of South Australia in R v Osenkowski (1982) 5 A Crim R 394. My note and memory is to the effect that a submission was made that it would be in the best interests of all concerned including the victim if the offender did not receive a full time custodial sentence. 3. The submissions continued that factoring in a finding of special circumstances given what would be the non-parole period there is no utility in imposing a sentence of full time custody. It was put that the court will not see a more positive Sentence Assessment Report (SAR). It was put that the offender is suitable for supervision and an Intensive Correction Order could include conditions to ensure that the offender continues to receive counselling. It is of concern that the author of the SAR indicated that regardless of any court order the Department of Community Corrections will suspend supervision. 4. Mr Boulten SC then addressed on the "Time Line", which is exhibit 6 on sentence, from the offender's parents. It was put that the disrupted upbringing together with the cognitive impairment (the ADHD) needs to be put in the balance in considering the appropriate sentence. The youth of the offender was emphasised with Senior Counsel putting that the offender was "barely an adult". I have already accepted that youth must be factored into the instinctive synthesis in determining the appropriate sentence. 5. Mr Boulten SC concluded his submissions by putting that the sentence is one that could be served by way of Intensive Correction Order. In the course of submissions I commented to the effect that if (and it was a substantial "if") an ICO was imposed it would include home detention. The offender consented to an assessment for home detention. 6. In oral submissions the Crown essentially relied on the written submissions. The Crown put that the court was not obliged to impose an Intensive Correction Order. It was put that the comments by the offender to the treating professionals that he was not looking for trouble on the night of the offence was at odds with the offender and his group following the others. The Crown put that there was a lack of insight. I understand why that submission was put. However, I am of the opinion that the offender has demonstrated insight and I accept that the offender is genuinely remorseful. 7. Mr Boutlen SC in submissions in reply reminded me that his client had complied with strict bail conditions, which would give the court confidence that the offender would comply with any order of conditional liberty. I did not understand the submissions relating to the bail conditions were such as to put that the principles in decisions such as R v Anderson [2012] NSWCCA 175 and Hoskins v R [2016] NSWCCA 157 (back dating of sentence because of onerous bail conditions) were enlivened. 8. No submissions were made as to the current COVID-19 pandemic. This is an issue to be considered in all sentence matters involving a sentence of full time custody. I note and take into account the decision of Valentine v R [2020] NSWCCA 116 at [59]-[62]. 9. As should be obvious from what I have already said and the extent of these reasons, I have given this matter a great deal of consideration. To accede to the ultimate submission by Senior Counsel for the offender would in my opinion be falling into the error of giving excessive weight to the undoubtedly very strong subjective case. In this regard I note what was said by the Court (Gleeson CJ, Lee CJ at CL & Hunt J (as his Honour then was) in R v Dodd (1991) 57 A Crim R 349 at 354, namely: "…Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case; Rushby [1977] 1 NSWLR 594" 1. The significance of the decision is not lost on me. I am reminded of what was said in R v Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep). Hunt CJ at CL observed that: "It is never easy to send a youthful person of good character to gaol but, where it is appropriate, it is something which must be done as a deterrent to others. The need for public deterrence will usually outweigh the fact that the particular offender has already learned his or her lesson. Also, retribution remains an important purpose which the sentence must serve." 1. Nevertheless, I remain of the view that there should be a substantial finding of special circumstances. The reasons for such a finding are the age of the offender, the fact that this will be his first time in custody and the need for an extended period of supervision upon release to ensure his proper reintegration into the community and to ensure that he continues to receive the appropriate level of counselling and support for his issues including the ADHD. 2. I must give proper regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community. 1. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalty provided, the offending including the injuries and the need for general deterrence (although moderated in this case), I am firmly of the opinion that a sentence of imprisonment is the only appropriate sentence. 2. In all of the circumstances I am of the opinion that the appropriate starting point for the total sentence is in the vicinity of 3.5 to 4 years, which with the 25% discount for the utilitarian value of the plea produces a total sentence of 2 years and 9 months. Orders 1. In respect of the offence to which the offender pleaded guilty namely: That (he) on or about 30 June 2019 at Manly in the State of New South Wales, while in company of William McManus and Michael Nichols caused grievous bodily harm to Ryan Davies being reckless as to causing actual bodily harm to him, The offender is convicted. 1. The offender is sentenced to a non-parole period of 1 year 6 months to date from 29 October 2020 which will expire on 28 April 2022. Thereafter there will be a balance of term on parole of 1 year 3 months which will date from 29 April 2022 and which will expire on 28 July 2023. 2. The offender is to be released to supervised statutory parole at the expiration of the non-parole period. 3. The non-parole period is approximately 54% of the total sentence, which indicates a substantial finding of special circumstances, the reasons for which have already been enunciated within these reasons. ********** 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: 29 October 2020