R v Stanley [2020] NSWDC 879

District Court New South Wales

Medium Neutral Citation: R v Stanley [2020] NSWDC 879 Hearing dates: 7 December 2020 Date of orders: 14 December 2020 Decision date: 14 December 2020 Jurisdiction: Criminal Before: Buscombe DCJ Decision: Fixed sentence imposed one of 6 months imprisonment Catchwords: CRIME — Public order offences — Affray Legislation Cited: Crimes Act 1900 (NSW) s 93C Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 56 Category: Sentence Parties: Director of Public Prosecutions (Crown) Stephen Stanley (Offender) Representation: Counsel: Ms Campbell (Crown) Mr Zoutendijk (Offender)

Solicitors: File Number(s): 2020/52197 Publication restriction: Nil

SENTENCE

Introduction 1. The offender is to be sentenced having pleaded guilty to the following offence: on 1 September 2019 at Parklea, he used unlawful violence towards Siah Monchisada by conduct that would cause a person of reasonable firmness present at the scene to fear for his personal safety. That is the offence of affray under s 93C of the Crimes Act and has a maximum penalty of ten years imprisonment and there is no applicable standard non‑parole period.

The Facts 1. The facts are agreed and the Crown also tendered CCTV footage of the incident which gives rise to the charge and what follows is taken from the agreed facts and what I have been able to derive from the CCTV footage. 2. At approximately 9.07am on 1 September 2019, inmates from area 5 at Parklea Correctional Centre were being escorted through the 5 gate area towards the correctional centre's chapel. There was a group of inmates being led through including Monchisada, Scoli, Shamim and this offender through the 5 gate area towards the clinic gate. As they go through the gate and come upon some legal visit boxes, Monchisada and Scoli can be seen to go behind the legal visit boxes. Mr Stanley is said to walk on and was in reasonable proximity to a Mr Shamim. 3. Following directions from correctional officers, Monchisada, Scoli and another unknown inmate walked from behind the legal visit boxes towards the clinic gate and N5 area and as they emerged, Mr Stanley was in that area. Shortly after that, and the whole incident takes a very short period of time, Mr Stanley seemed to walk over towards Monchisada and engage in a verbal exchange. The whole Crown case relies on the CCTV footage, nobody apart from the correctional officers, was prepared to make any statements about the matter which is commonly the case in gaol assaults. 4. Mr Stanley and Monchisada are observed to move closer together and continue with a verbal exchange. Scoli walked a short distance in front of them. As Monchisada and Mr Stanley continue to walk in the general direction of the clinic gate, they then engage in verbal discussion. Monchisada was approached by inmate Scoli. Mr Stanley is nearby. At one point, Scoli and Shamim are walking towards the clinic gate at the same time Monchisada and Mr Stanley moved to the centre of the 5 gate area and appeared to loiter at the back of the pack. As they moved away from the pack, Shamim and Scoli regularly looked over in their direction. 5. As almost all inmates had left that area through the clinic gate, the correctional officers noticed this offender, Mr Stanley and Monchisada; they had intentionally remained behind and separate from the group. Shamim and Scoli although with the general group of inmates had also intentionally remained at the rear. Monchisada and Mr Stanley turned to face each other. Mr Stanley adopted a fighting stance by raising his hands in front of him. At the same time, Monchisada moved towards Mr Stanley with his hands behind his back. Approximately two seconds later, Monchisada advanced towards Mr Stanley and also took a fighting stance, put up both his hands in front of himself. 6. Mr Stanley threw a punch using a closed fist in the direction of Mr Monchisada's head with his right arm. This is all seen on CCTV and by the correctional officers. Monchisada then raised his left arm to block that punch before punching Mr Stanley to the head with a closed fist using his right arm and his punch connected with Mr Stanley's left cheek. He continued to punch Mr Stanley and then other inmates such as Mr Scoli ran towards what was occurring. Mr Shamim also turned to observe the fight although he did not immediately take part in it. 7. Mr Monchisada punched Mr Stanley to the head at least twice before he ducked under a punch. Ultimately, Mr Stanley goes to the ground; there are numerous inmates who appear to be assisting Mr Monchisada in his attack on Mr Stanley. Mr Stanley ultimately ends up on the floor and is kicked and there is a general melee, if I can use that expression, with different people taking different roles but clearly Mr Stanley ends up on the ground being kicked and punched by other inmates. Ultimately, Corrective Services are able to restore calm to the area. The entire incident from the time that Mr Monchisada and this offender first engaged each other in what is referred to as a fighting stance to the time the inmates were removed from the area was approximately one minute and 20 seconds, so it took a very short period of time. The physical altercation between Mr Monchisada, Scoli and this offender lasted for about 24 seconds. 8. The facts say that the actions of Mr Monchisada, Scoli, this offender and Shamim prior to the commencement of the physical altercation reveal an element of pre-planning. It seems to me from watching the CCTV that it looks like the others, not this offender, may well have planned for an incident to occur, that is just an inference it seems to me to arise from the watching of the CCTV footage. The offender was observed to have a slight nosebleed, a red face and a red area on his back; he did not require any treatment. He refused to provide any information about the incident, similar to the other participants.