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. Objective seriousness 1. Turning then to my assessment of the objective seriousness of the offence, while it is clear from the agreed facts and the CCTV footage of the incident that this offender throws the first punch, there is also a reasonable inference that the inmate, Monchisada and others had planned for an incident to occur when they moved behind the legal visit boxes, which occurs shortly before this offender and Monchisada shape up to each other. Both this offender and Monchisada hang back from the gate that other inmates are proceeding through, again suggesting that they both were expecting an incident to occur. 2. The speed with which other inmates set upon this offender also is suggestive that some plan to cause an incident involving violence towards this offender had been hatched. It needs to be remembered however that this offender has entered a plea of guilty to this offence. The duration of the affray is short and this offender ends up being set upon by a number of other inmates and punched and when on the ground, kicked and stomped upon. Of course, it occurs in the custodial environment which makes the offence more serious, in my opinion. No person involved suffered a significant injury and it appears this offender suffered the most injuries. I assess the objective seriousness as towards the lower end of the scale but not at the very bottom. The offender's subjective case 1. Turning then to his subjective case, his date of birth is 3 December 1990 so has just turned 30 years of age, still a relatively young man. He has a lengthy criminal history, dating back to when he was a juvenile. The majority of his offending appears to be for break and enter and stealing and drug supply. There are few offences of violence on his record. I note that at the time of this offence, he was serving an aggregate sentence of six years with a non‑parole period of three years and four months which was imposed on 13 September 2018. 2. I note he committed some fairly low‑level offences against Corrections staff when he was attending the Parklea Compulsory Drug Treatment program in 2019 and received non-custodial sentences. Sentence Assessment Report and psych reports – 1. Clearly his record disentitles him to leniency here. I have a Sentencing Assessment Report, the remarks of Judge North who sentenced the offender on 13 September 2018 and a psychological assessment prepared in 2018 from Jennifer Brown. The offender gave evidence before me. Family background 1. The report of Ms Brown establishes that he had an early life of some considerable social disadvantage. He does maintain the support of his mother and sister and intends to reside with his mother when released from custody and he spoke well of his mother when he gave evidence. He does not have any children. He has had a limited education, leaving school in year 8, although when giving evidence, he appears to me to be quite articulate and intelligent. Education and employment history 1. He told the author of the Sentencing Assessment Report that he has never held employment in the community but he has been regularly employed when in the gaol system. He has had a long-term problem with prohibited drugs commencing from his teenage years. The Sentencing Assessment Report records that the offender has incurred multiple institutional misconduct infringements, some of which involve being in fights. In relation to the incident that gives rise to the charge, he received 42 days off buy-ups and 42 days off contact visits. Response to supervision if relevant 1. He gave evidence he had also been placed in segregation for a couple of months. I note that there are other infringements of prison discipline involving fighting on his custody record but the penalties imposed suggest they were not overly serious. 2. The Sentencing Assessment Report records that he completed the EQUIPS aggression program in November this year. The breach of parole reports that are before me indicate he has done poorly when supervised on parole in the community. The Sentencing Assessment Report records that told the author that the incident out of which the charge arose involved him being confronted by a rival outlaw motorcycle gang however in his evidence before me, he said he had never been a member of an outlaw motorcycle gang and I have to say his record suggests that he probably has not been. Attitude to the offence 1. He admitted to the author of the Sentencing Assessment Report that he threw the first punch but considered he had no other option given what he understood was going to unfold that day. He maintained that position when giving evidence. There is certainly no evidence of remorse but his attitude needs to be assessed keeping in mind the circumstances he faced in the gaol that day. He is assessed in the Sentencing Assessment Report as having a high risk of re-offending. The future and risk of re-offending 1. Clearly, his prospects for rehabilitation are no better than guarded. Judge North recorded that after hearing from the offender in 2018, he considered that there was "a small ray of light" and felt that he might finally have realised it was time to take stock of his life when next in the community. He had before me an attitude of arrogant dismissiveness when he gave evidence but I do note that he is yet to have another opportunity in the community since being sentenced by Judge North. Imposition of sentence 1. He entered an early plea of guilty and I will allow him a 25% discount for the utilitarian value of his plea and I noted earlier that he is currently serving a sentence and the non‑parole period of that sentence expires on 14 March 2021. I understand that he has a hearing before the State Parole Authority early in the new year. He has spent a very considerable part of his adult life in custody. As I read his custodial record, the longest continuous period he has spent out of custody since June 2009 is six months. If not already institutionalised, then he must be bordering on becoming so. 2. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. Offences of violence committed by inmates in prison are always serious as they have a tendency to undermine discipline in the gaols. General deterrence, that is, the need to send the message that such offences will receive significant punishment, must feature in the sentencing discretion. Given the offender's record, so must personal deterrence. 3. In my opinion, the only appropriate sentence is one of imprisonment. The maximum penalty has been taken into account as a legislative guidepost. The offender was a convicted inmate as at the time of the offence so s 56 of the Crimes (Sentencing Procedure) Act has application here, the effect of which is to require the sentence to be accumulated upon a non‑parole period the inmate is serving unless a direction under the section is made. 4. I consider it is appropriate to make a direction that the sentence be substantially concurrent with his current non‑parole period. That is because I consider that his chance of being back in the community for the first time since being sentenced by Judge North should not be substantially delayed because of the imposition of the sentence I will impose. He is convicted of the offence of affray to which he has pleaded guilty. I impose a fixed term of six months' imprisonment. It commences on 15 October 2020 and expires on 14 April 2021. The effect of the sentence is to extend his non‑parole period by one month. Orders 1. Offender is convicted of the offence to which he pleaded guilty. 2. The offender is sentenced to a fixed term of 6 months imprisonment. 3. The sentence commences on 15 October 2020 and expires on 14 April 2021. ********** 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: 23 March 2021