District Court New South Wales Medium Neutral Citation: R v Hamilton [2022] NSWDC 508 Hearing dates: 6 October 2022 Date of orders: 6 October 2022 Decision date: 06 October 2022 Jurisdiction: Criminal Before: Grant DCJ Decision: Orders at [60] Catchwords: SENTENCING – cause grievous bodily harm with intent to prevent lawful arrest or detention – victim a police officer – whether the victim was vulnerable by virtue of his employment as a police officer – whether the offending is aggravated because the victim was a police officer – substantial injuries – injuries caused by a single kick – strong subjective case for the offender – no previous convictions – young age of the offender – excellent prospects of rehabilitation – low risk of reoffending – genuine contrition and remorse – first time in custody – special circumstances – only a sentence of full-time imprisonment appropriate Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) [2002] NSWCCA 515 Clarke-Jeffries v R [2019] NSWCCA 56 Kirby v The Queen [2021] NSWCCA 162 Locke v R (2010) 207 A Crim R 34 Ollis v R [2011] NSWCCA 155 R v MAK (2006) 167 A Crim R 159 R v Mitchell; R v Gallagher [2007] NSWCCA 296 R v Moon [2000] NSWCCA 534 Category: Sentence Parties: Rex (Crown) Jacob James Hamilton (Offender) Representation: Counsel: Mr P Kerr (Crown) Mr D Bhutani (Offender) Solicitors: Solicitor for the Director of Public Prosecutions (Crown) KPW Lawyers (Offender) File Number(s): 2021/00280972 Publication restriction: Nil EX TEMPORE JUDGMENT Introduction 1. The evening of Saturday 2 October 2021 appeared to be run of the mill in the city of Albury. However, it was not to be. For some, their lives would change forevermore. 2. Senior Constable Sullivan was travelling in a police vehicle along the main street. Not far from a pub, a "punch on" took place between two males on the roadway. Senior Constable Sullivan and Constable Kelly exited the vehicle and approached the males. Senior Constable Sullivan pulled on one of the males' arms and managed to separate him from the other male and took him to the ground. Senior Constable Sullivan was lying on top of the male to control him. Senior Constable Sullivan was in a vulnerable position. What happened thereafter is captured on CCTV. Mr Hamilton advances towards Senior Constable Sullivan and kicks him in the head, then he retreats and runs away. Out of concern by his colleagues, Senior Constable Sullivan was rushed to hospital in a highway patrol vehicle. His injuries were serious and are ongoing. 3. Mr Hamilton appears for sentence on a charge of cause grievous bodily harm with intent to prevent lawful arrest or detention contrary to s 33(2)(b) of the Crimes Act 1900. The maximum penalty is imprisonment for 25 years. It has a standard non-parole period of 7 years. The charge sits below the apex of murder for statutory maximums. It is a serious offence in the hierarchy of sentencing, as prescribed by Parliament. The maximum penalty and the standard non-parole period are important guideposts in the assessment of sentence. The standard non-parole period represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness, without having regard to the range of factors, both aggravating and mitigating that bear relevantly on sentencing in an individual case. The injury 1. The victim received a depressed frontal base fracture and mildly displaced nasal bone fracture. The victim's skull was observed to have an, "evident contour deformity". The fractures required surgical repair and the insertion of numerous titanium plates. The fractures were serious. The victim suffers from significant cognitive fatigue with ongoing headaches. He has loss of smell and taste. It is unclear if this will be permanent. 2. The last testing was done five weeks after he had COVID. Associate Professor Ian Baguley says, "It is unclear to me as to how much of this is the effects of his brain injury and how much could be post-COVID, so this may warrant being reinvestigated in coming months". The victim has developed depression and post-traumatic stress disorder. Psychiatric intervention has been recommended. Mr Sullivan may not be fit to return to normal duties. Victim impact statement 1. A victim impact statement has been prepared and tendered. It was read by the Crown Prosecutor to the Court. The statement demonstrates that the victim has been profoundly affected by the actions of the offender, which are ongoing. 2. There is a need for the Court to take account of the impact of the offence on victims. One of the purposes of sentencing is to recognise the harm done to the victim of the crime and community: s 3A(g) Crimes (Sentencing Procedure) Act 1999. In his victim impact statement, Senior Constable Sullivan details that he is unsure if he will ever be a police officer again as a result of the traumatic brain injury, ongoing headaches, post‑traumatic stress disorder and depression. He was planning on remaining a police officer until his retirement. 3. His injuries as a result of this offence have created uncertainty, as the victim does not know what his future capacity to work will be. He has lost his sense of smell and taste, he has scars on his head and titanium plates in his skull. He tells the Court that activities that he used to enjoy with his family, such as bike riding, reading books to his children before bed, visiting family and friends, as well as helping in his household, he is no longer able to do. He is unable to care for his children for a full day on his own. This has been an extra burden for his wife and other members of his family, who they have had to rely on for assistance. His wife had to cut back on work last year in order to care for him and their children. This has caused financial stress. His injury is impacting his ability to be the father that he wants to be to his children and his marriage. 4. He needs regular rests throughout the day. He takes medications daily to manage his headaches. He has been overwhelmed with medical appointments. He has never had a mental health condition before, but he now finds that he is depressed, has post-traumatic stress disorder and trouble sleeping. He has days where he feels hopeless and lost in his recovery and he no longer feels safe in Albury, the town that he grew up in and returned to. 5. In sentencing an offender, the Court must take into account all relevant considerations. The sentence imposed is only one indicator of the seriousness with which the Court views the crime committed. This means a direct correlation between harm done and punishment inflicted is impossible. A victim should never equate or measure the harm done to him with the punishment actually inflicted. The sentence I impose can never restore the victim and his family to their original position. It is impossible to do so. Value of the plea 1. A plea of guilty was accepted by the Local Court magistrate in committal proceedings for the offence. Mr Hamilton is entitled to a discount for his early plea of 25% in accordance with s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999. The facts 1. There is an agreed facts document. In summary, the facts are as follows: 2. On the evening of 2 October 2021, the offender, along with several friends, were at Public House, a licenced premises on Dean Street in Albury. The group were drinking together. The offender's credit card records that he made four purchases at Public House. 3. The group left Public House at 8:22pm and walked in a westerly direction along Dean Street. Another group of males followed closely. The two groups became involved in a 'push and shove'. One of them punched another male. The offender kept his distance from the fight. He and his friends then walked away shortly after and continued along Dean Street. 4. The offender and his friend, Joshua Goodwin, crossed the road and continued walking before turning and running back towards another male, Bronson Meehan. Goodwin and Meehan faced off. The offender was standing away. At one point the offender stood between the two but he did not try to remove Goodwin from the scene. Goodwin and Meehan continued to punch each other on the footpath until the fight moved to the roadway. 5. Senior Constable Sullivan and Constable Kelly were in a marked police vehicle performing official police duties. The vehicle was travelling in a westerly direction along Dean Street when Senior Constable Sullivan saw the fight. Constable Kelly activated the warning lights and Senior Constable Sullivan requested backup. 6. Police approached Goodwin and Meehan, observing blood on Goodwin's face and Meehan in a headlock. Police were able to separate the pair, however, Goodwin continued to yell, and Senior Constable Sullivan spun around and took him to the ground. Goodwin was lying face down, with Senior Constable Sullivan lying on top of him in a controlling position. 7. The offender, standing a short distance away, took several steps towards Senior Constable Sullivan and kicked him to the head with such a degree of force that he immediately rolled off Goodwin and grabbed his forehead. The offender immediately turned and ran away from the scene, and Goodwin followed. 8. Senior Constable Sullivan experienced a sharp pain to his forehead. When he stood up, he felt dizzy and stumbled to the police vehicle. He put his hand to his face and felt a large depression in the middle of his forehead. There was blood dripping from his nose. Constable Kelly asked where the blood was coming from. Senior Constable Sullivan did not respond, but dropped onto one knee. Kelly saw his forehead was misshaped. 9. Senior Constable Sullivan was placed in the recovery position on the roadway by members of the public that came to his aid. An ambulance had been radioed by Kelly, but, as there was no estimated time of arrival, Sullivan was conveyed to the Albury Base Hospital in the back seat of a highway patrol vehicle. 10. A crime scene was established by detectives at 8:50pm. Goodwin was located a short time later in QE2 Park. At 10:15pm, the offender presented himself at the Albury Police Station where he was arrested. He participated in an electronically recorded interview at 1:10am on 3 October 2021. He identified himself in CCTV footage of Dean Street. He made admissions to kicking Senior Constable Sullivan in the face. That he "felt bad" that Goodwin was being arrested and that he kicked the police officer to "get him off" Goodwin. 11. Senior Constable Sullivan was discharged from Albury Base Hospital on 6 October 2021. On 10 October, he travelled to Melbourne, Victoria and met with surgeons. He sustained the following injuries: 1. A depressed frontal bone skull fracture with an evident contour deformity of the skull causing "significant aesthetic deformity"; and, 2. Mildly displaced nasal bone fracture. 1. On 15 October 2021, he travelled to Melbourne again for a pre-surgery CT scan, and he underwent surgery on 22 October 2021. The surgical procedure was under general anaesthetic and involved surgeons inserting 10 titanium plates to the front part of his skull and nasal bone. He spent several days in hospital recovering. He has been diagnosed with a mild complicated traumatic brain injury. Statutory aggravating factors 1. The Crown submits the following aggravating factors should be taken into account: 1. Section 21A(2)(a); the victim was a police officer exercising his function; 2. Section 21A(2)(l); the victim was vulnerable because of his occupation as a police officer; 3. Section 21A(2)(g); the injury, loss or damage caused by the offence was substantial. 1. Mr Bhutani, in oral submissions, conceded on behalf of the offender that the report of Associate Professor Baguley demonstrated that the injuries were substantial. He conceded that the statutory aggravating feature had been made out. 2. On behalf of the offender, he disputed the two other aggravating factors put forward by the Crown. He submitted that the section covered the intent to prevent the lawful arrest or detention. Arrest or detention could only occur by police or corrections officers. Therefore, it would be double counting to hold a statutory aggravating factor. He submitted that the fact that the victim was a police officer would elevate the objective seriousness of the offending. 3. The elements of the offence are causing grievous bodily harm to any person with intent to resist or prevent arrest or detention. It is not an element of the offence that the resist must be towards a police officer or corrections officer. The charge particularises that the grievous bodily harm was caused to Senior Constable Sullivan with intent to prevent lawful arrest. It is a particular, not an element. 4. Mr Bhutani, in the course of argument, referred me to Kirby v The Queen [2021] NSWCCA 162, particularly [31]-[33]. The offence before that Court was s 33B(1), which has three alternative limbs, one of which is to prevent or hinder a police officer. Section 33(2)(b) does not have this wordage. 5. The Crown relied upon the first limb, namely, "commit an indictable offence", which was particularised as an assault of a police officer. It was contended that it was an error of the sentencing judge to double count by further taking into account that the victim was a police officer (s 21A(2)(a) Crimes (Sentencing Procedure) Act 1999) for the purposes of determining punishment. Beech-Jones J, as he then was, did not accept that submission. In my view, s 21A(2)(a) is applicable and is a statutory aggravating factor for the offence before me. 6. The Crown submits that the factor outlined in s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 is also enlivened as a result of the victim's occupation as a police officer. The provision does not purport to be an exhaustive list of circumstances of vulnerability. There are a number of reasons why a victim may be vulnerable: Ollis v R [2011] NSWCCA 155. However, while I do consider that the victim was in a particularly vulnerable position in an attempt to effect the arrest, I do not consider that his employment as a police officer exposed him to a particular vulnerability that would enliven aggravating factor as outlined in the statute. Objective seriousness 1. In a successful bail application, Beech-Jones CJ at CL described the Crown case that the offender committed an unprovoked, cowardly and vicious attack on a police officer. I adopt that characterisation. In assessing the objective seriousness of the offending, I consider the following: 1. The assault consisted of a single kick to the victim; 2. The act performed by the offender was not one that would have inevitably have caused grievous bodily harm; 3. The offence was not planned; 4. The victim was in a vulnerable position at the time of the assault; 5. The nature of the injuries are undoubtedly serious and required significant medical intervention; 6. There is no evidence to suggest that the offender intended to cause grievous bodily harm. I accept the submission of Mr Bhutani, counsel for the offender, that the Crown is not required to prove an intention to cause grievous bodily harm to establish the present offence, as the mental element of this offence is an intention to prevent lawful arrest. I accept that, given the fleeting nature of the attack and the fact that it involved a single kick, I cannot be satisfied to the requisite standard that the offender intended to cause the level of harm which he did, namely, grievous bodily harm. This is relevant to my assessment of the objective seriousness of the offence and the offender's moral culpability. 1. The injuries occasioned to Senior Constable Sullivan are severe. I have considered the extent of the injuries disclosed in the fact sheet. The officer has had numerous medical appointments in relation to this injury. He has a brain injury. I have also reviewed the material filed by the Crown, including the photographs of Senior Constable Sullivan and the letter of Associate Professor Baguley, rehabilitation medicine physician, to Dr Graeme Davey. Associate Professor Baguley outlined some of the longer-term impacts of the offence. The victim continues to suffer from "significant cognitive fatigue". He has not had significant improvement in the eight months post offence. He continues to suffer from headaches. Associate Professor Baguley notes that the victim is taking a very practical approach to dealing with the psychological burden of the trauma. 2. In considering an offence under s 33 of the Crimes Act 1900, the nature of the injury will determine, to a very significant degree, the seriousness of the offence and the appropriate sentence: R v Mitchell; R v Gallagher [2007] NSWCCA 296 at [27]. The Crown submits that the objective seriousness of the offending falls above the mid-range. Mr Bhutani submits that the offending is slightly below the midrange. I accept Mr Bhutani's submission and assess the objective seriousness as slightly below the mid-range. Subjective circumstances 1. Jacob Hamilton is a 21-year-old man. At the time of the offence, he was only days past his 20th birthday. His youth is relevant, as the Courts recognise the capacity for young people to reform and the need for rehabilitation, the immaturity of the offender, and the reduced significance of general deterrence and retribution: Clarke-Jeffries v R [2019] NSWCCA 56 at [49]. I take this offender's youth into account on sentence: Locke v R (2010) 207 A Crim R 34 at 41-49. 2. The offender enjoyed a happy and loving childhood. Although his parents separated when the offender was very young, they shared responsibility for his upbringing, and he felt connected to both. Both of his parents re-partnered and he also had the support of his stepparents. When he was a teenager, he moved in with his father fulltime. He denied that this was the result of any tensions or difficulties with his mother, stepfather or siblings. He disclosed to Dr Mamta Sidhu, psychologist, that he always felt safe in their care and that he had "everything I needed". He is fortunate that he continues to enjoy the strong prosocial support of his parents and family. 3. While at school, he performed in the average range academically, made good friends and displayed positive behaviour. He left school after completing his school certificate in year 10 and began an apprenticeship in plastering. While in custody, he worked in the bakery. He returned to work within a week of being granted bail by the Supreme Court. His employer has provided a reference describing Mr Hamilton as hardworking, respectful and trustworthy. 4. Approximately three years ago, his mother and stepfather separated. This caused his mother to have behavioural changes. Further, in the weeks before the offence, the offender's father experienced a sudden cardiac arrest. He was flown to Melbourne and there was a very real possibility his father would not survive. This was a difficult period for Mr Hamilton and his family. The references tendered speak to the effect this incident had on the family, but also to Mr Hamilton's composed assistance to his family at this time. 5. Dr Sidhu opined that due to the offender's young age and emotional immaturity, he could not process these life stressors, resulting in increased difficulty with anxiety. However, Dr Sidhu confirmed that Mr Hamilton did not meet the diagnostic criteria for anxiety. 6. I accept that before the commission of this offence, Mr Hamilton was a person exemplary character. His family and friends describe him as a sweet‑natured person, who is fiercely loyal to his family and friends. He is generous, polite and kind. He is not a person who usually engages in violent behaviour. This is supported by his criminal record, which records no convictions for any offences. He is entitled to rely on his prior good character and lack of any criminal history on sentence. 7. The offender reported that he was substantially affected by alcohol. Self-inducted intoxication is not a matter that may be taken into account in mitigation on sentence. However, I have reviewed the numerous character references, which speak of Mr Hamilton in outstanding terms. I have considered that Mr Hamilton is not someone who is criminally recorded and that the offence was out of character. Prospects of rehabilitation 1. Using the Historical-Clinical Management-20 version 3 risk assessment, Dr Sidhu assessed Mr Hamilton as having a low-risk of violent reoffending. Similarly, he has been assessed as a low risk according to the Level of Service Inventory. 2. Since this offence, Mr Hamilton has engaged in counselling support with Colours of Life Counselling. The letter of Ms Ford indicates that Mr Hamilton has made counselling a priority. Mr Hamilton retains a number of protective factors, including his employment history and strong work ethic, which provides him with stability and satisfaction, the support of his parents and family and his willingness to seek support and engage in interventions. 3. There can be no doubt that he has excellent prospects of rehabilitation and is unlikely to reoffend. Contrition/remorse 1. Mr Hamilton gave evidence before me. He apologised to his victim. He has insight into his offending and is deeply troubled by his actions and the flow-on effect to the victim, the victim's family and his own family. No doubt, he would wish that he could turn back time, but he cannot. As described by Mr Crown, it is a tragedy, but a tragedy in different ways. 2. Mr Hamilton has demonstrated a significant degree of contrition and remorse. He turned himself in to the police and made admissions. He has entered an early plea of guilty to the offence. The author of the sentencing assessment report notes that he felt remorseful and guilty, showing insight that the victim was only doing his job and has now sustained long-term health problems as a result of the offence. He felt quite distraught and concern for the victim. 3. The offender's father outlines in his affidavit that Mr Hamilton is extremely remorseful for the offence and deeply concerned for the victim. The character references tendered speak to the remorse that Mr Hamilton has demonstrated for his conduct. I am satisfied that this offender is deeply and genuinely remorseful and contrite. COVID-19 1. The offender spent 139 days in custody for this offence before he was granted bail by the Supreme Court. This period of custody was served at a time when the impact and restrictions of COVID-19 in the prison environment were multi-faceted and wide-ranging. Both appellate and Courts of first instance in New South Wales have recognised a variety of species of hardship the inmates presently suffer in the custodial environment, including: 1. The suspension of social and family visits; 2. Restrictions to movement and subsequent isolation of inmates; 3. Negative impacts on wellbeing, including stress and anxiety; 4. The greater risk of infection and serious harm to inmates. 1. Furthermore, courts across the different jurisdictions of the Commonwealth have further recognised additional hardship, including: 1. The adverse Impact of lockdown measures may weigh more heavily on first time inmates; 2. Work opportunities during the pandemic, when available at all, are limited. Despite this, as I have already outlined, Mr Hamilton has been able to gain employment while in custody in the bakery. Full-time imprisonment 1. The Crown submits that the s 5 threshold has been crossed and an immediate term of imprisonment is warranted. Mr Bhutani concedes that the s 5 threshold is crossed but submits a term of imprisonment of two years or less is within the range of sentence. 2. On determining whether a sentence of imprisonment may be served by way of intensive correction in the community, I must first determine the length of sentence without regard to how it is to be served. Although I have carefully considered the very strong case for the offender, sentencing principles of general deterrence, denunciation, retribution, as well as recognising the harm done to the victim mean that I cannot arrive at a head sentence that is less than two years. To do so would result in appealable error. 3. Although there is limited utility in the sentencing statistics for this offence, both as to sample size and pre-2018 amendments, the sentences range from 24 months to eight years. These statistics do not support an argument that the imposition of an intensive correction order would not result in appealable error. Special circumstances 1. Mr Bhutani, on behalf of the offender, submits that the Court should make a finding of special circumstances and there be a significant variation of the statutory ratio of the sentence on account of: 1. The offender's young age, and the vulnerability that attaches; 2. This being the offender's first term of imprisonment; 3. The need to encourage the offender's motivation to participate in rehabilitation activities. He refers to Dr Sidhu's report at paragraph 57; 4. The offender's strong prospects of rehabilitation that are furthered in the community as opposed to being in a custodial sentence. 1. The Crown, in oral submissions, conceded that it was open to find special circumstances. During the course of argument, subject to further submissions, I indicated that the non-parole period would be 50% of the head sentence. The Crown did not wish to cavil with this approach, with the proviso that the sentence not be reduced so that there would be no input of general deterrence and specific deterrence. 2. I find special circumstances. The non-parole period will be 50% of the head sentence. Sentence 1. The major sentencing consideration is general deterrence. The principle was set out by Spigelman CJ in Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) [2002] NSWCCA 515 where his Honour said at [22]: "Offences involving assault of police officers in the execution of their duty are serious offences requiring a significant element of deterrence in the sentences to be imposed. The community is dependent to a substantial extent upon the courage of police officers for protection of lives, personal security and property. The Courts must support the police in the proper execution of their duties and must be seen to be supporting the police, and their authority in maintaining law and order, by the imposition of appropriate sentences in cases where assaults are committed against police." 1. The maximum penalty and the standard non‑parole period are a measure of how serious the offence is viewed by Parliament and the community. It carries with it an implicit instruction to courts that retributive of sentences with a focus on both specific and general deterrence are required. Here, the focus is on general deterrence. Retribution is the notion that reflects the community's expectation offenders will suffer punishment. A Court sentencing an offender must take into account all relevant considerations. This means a direct correlation between the harm done and the time to be served is impossible. Although general deterrence is important, it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the Court: R v Moon [2000] NSWCCA 534 Howie J at [81] 2. Although his youth makes him a less appropriate vehicle for general deterrence, the need to send a message to the community that violent behaviour towards police officers will not be tolerated is still present. Specific deterrence has a function but must have a limited one. The offender spent 139 days in custody before a grant of bail by the Supreme Court. That should provide sufficient specific deterrence. 3. The severity of sentence is not simply the product of a linear relationship. That is to say, severity may increase at a greater rate than an increase in the length of sentence: R v MAK (2006) 167 A Crim R 159. Simply put, two years in gaol is a lot worse than one year in gaol. Three years is significantly worse than one. 4. Instinctive synthesis is a method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence, given all the factors of the case. Individualised justice is an important aspect of sentencing. The sentence and non‑parole period will reflect all the matters that I have discussed. 5. Jacob Hamilton, you are convicted and sentenced to six years' imprisonment. But for the plea of guilty, you would have been sentenced to eight years' imprisonment. The sentence of imprisonment will commence on 20 May 2022 and will expire on 19 May 2028. I impose a non-parole period of three years' imprisonment in accordance with my finding of special circumstances. You will be eligible for parole on 19 May 2025. ********** Amendments 27 October 2022 - Typographical error 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: 27 October 2022