New South Wales District Court CITATION: Courtney HOWELL v R [2008] NSWDC 282 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 27 March 2008 EX TEMPORE JUDGMENT DATE : 27 March 2008 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: Appeal is dismissed and the orders of the magistrate are confirmed. CATCHWORDS: Criminal law - Severity appeal - Assault occasioning actual bodily harm - Hinder investigation by police - Assault - Significant breach of the peace PARTIES: Courtney Howell The Crown SOLICITORS: NSW DPP Nyman Gibson Stewart JUDGMENT 1 HIS HONOUR: Courtney Howell appeals against three sentences imposed by a magistrate arising out of the events of 22 September 2006. The first is an offence of assault occasioning actual bodily harm for which the appellant was sentenced to imprisonment to be served by way of a periodic detention for sixteen months with a non-parole period of ten months. The next offence is one of hinder investigation by police; the appellant also received periodic detention for that matter, this time of nine months with a non-parole period of six months, it being wholly subsumed in the sentence of the assault occasioning actual bodily harm. And finally, there is an offence of assault for which the magistrate imposed a sentence of one month periodic detention, it also being wholly subsumed by the other two matters. 2 On 22 September 2006 the appellant and some friends of his went to a hotel. Also present at the hotel were a group of other people. Both groups seem to have been drinking. An altercation arose. Matters were taken outside, in the course of which the appellant struck a man by the name of John Coonahan to his face. He also struck Mr Foley. The circumstances of the assault on Mr Coonahan, it being assault occasioning actual bodily harm, required close examination. It is common ground that after the appellant struck Mr Coonahan, he was severely assaulted by a friend of the appellant, Matthew Lowe. It is common ground also that in the course of that assault Mr Lowe stomped on Mr Coonahan's head, rendering him unconscious and leading to a situation where he required brain surgery and has been left with permanent brain damage. 3 In the statement of facts, which were described as agreed facts by both parties in court today, this appears: "Howell turned to Coonahan and punched him with a closed fist to the head, hard enough for him to be knocked to the ground. He hit the ground heavily, some witnesses described his head in fact hitting the ground. The security guard, Naffa Fonmoa, described Coonahan as moving, trying to coordinate himself but was dazed. Howell was restrained by security guard Naffa Fonmoa. Lowe then proceeded to punch Coonahan and stomp on his head a number of times, eventually rendering him unconscious. Due to the earlier punch by Howell, he was unable to shield himself from Lowe". 4 However, in a statement given by the appellant attached to an undertaking to give evidence against Mr Lowe, a somewhat different version of events appears. In contrast to the agreed statement of facts which suggests that after Mr Coonahan was punched by the appellant he was dazed and unable to shield himself, the version given by the appellant in his undertaking is that after he punched Mr Coonahan the latter got up and walked away when Mr Lowe then punched Mr Coonahan in the face causing him to fall to the ground, and it was at that stage that Mr Lowe stomped on his head. I am satisfied that there is a contradiction between the agreed facts and the version given in the appellant's statement that is attached to his undertaking. It is agreed that in those circumstances, I should sentence the appellant on the basis of the agreed statement of facts and take into account that the appellant, should he give evidence against Mr Lowe, will be cross-examined as to that discrepancy, it being implicit that that would therefore reduce the significance and effectiveness and utility of his assistance. 5 I have to be very careful here because the appellant's actions in relation to Mr Coonahan were a single punch. He did not stomp on the unfortunate Mr Coonahan, and indeed, the appellant has agreed to give evidence against the person who did. But that is not to say that the events which took place after the appellant punched Mr Coonahan are irrelevant. In a situation where groups of young men are fighting each other, it is entirely foreseeable that one young man will punch another person and an associate of the young man will proceed further, inflicting more violence on the same victim. That is exactly what has happened here. Mr Lowe came after the appellant and took advantage of the state in which the victim had been rendered to inflict further and much more serious violence upon him. But that was only due to the initial punch by the appellant. It is not the case that I should, in effect, put a full-stop in the agreed statement of facts and proceed as though nothing more happened to Mr Coonahan after the appellant punched him. Properly understood, therefore, this matter is a very serious offence. True it is that there was a single punch but its seriousness is, as I have outlined, not to be examined on the basis that all that was involved in the events of that evening were that single punch. 6 The events also represent a significant breach of the peace. There would have been many people at the hotel that evening, trying to have a good time, and the incredibly distressing events would have affected everyone who was present that evening. Pub violence is a matter of great community concern and understandably so. Law abiding citizens are entitled to go out for an evening's entertainment and an evening socialising without being forced to witness violence of the kind committed by the appellant in this case. 7 The appellant is a man of prior good character, he has no criminal history and references were tendered attesting to his good character. There is, of course, a qualification to his good character which is to be found in fact that after he was involved in the events of this evening, he lied to police, concocted a false alibi and hindered their investigation into establishing the identity of the person who had caused such serious injuries to Mr Coonahan. A person who is truly of good character would not have done those things. A person who is truly of good character would have recognised just how wrong it was for Mr Lowe to have acted the way he did and would have contacted police, or at least not lied to them when the police contacted him. 8 I accept that the appellant is remorseful. I accept that he has good prospects of rehabilitation and that he has undertaken to give evidence against Mr Lowe. That assistance is of course to be recognised by an appropriate discount on a sentence that would otherwise have been imposed. A police officer has described the assistance of being of significance. I will accept that but I do note that this assistance only came about after earlier lies were told to police, only came about after a significant amount of evidence had been marshalled against the appellant, that the versions of events is, as I have mentioned, inconsistent with the agreed facts, and it is not even known whether the appellant will ever be called upon to honour his undertaking, Mr Lowe having flown to New Zealand soon after these events. He has not been charged with anything in relation to his conduct and, as the matter stands at the moment, it is not known whether he ever will be. Nevertheless the appellant has undertaken to give evidence against Mr Lowe in the event that he is charged and faces trial. 9 It seems that the appellant pleaded guilty to these matters at an early opportunity, I will therefore consider that the appropriate discount for both assistance and the plea of guilty is thirty-five per cent. 10 Mr Gibson says that this is not a case that a sentence of imprisonment is required. I disagree. This offence was a serious one for the reasons that I have indicated. Even committed by a person with no criminal history, a sentence of imprisonment is required to mark the community's attitude towards offences of this type in order to deter others who may be tempted to assault others as the appellant has on this occasion. I am, however, like the magistrate, satisfied that the matter should be dealt with by way of periodic detention. I am also satisfied that the periods of imprisonment chosen by the magistrate are appropriate. For my part, I might have been tempted to partially accumulate the sentence for hindering police, but I am not of such a firm view that this was a possibility, therefore I did not give a Parker warning to the appellant. In those circumstances, the orders of the magistrate are confirmed and the appeal is dismissed. The appellant should therefore attend the Parramatta Periodic Detention Centre at 8.30am on 5 April 2008 in order to commence serving his sentence. 11 Thank you, Mr Gibson, your client will just have to be taken into custody for a short time by Corrective Services authorities. ********** 09/12/2008 - Spelling correction - Paragraph(s) Cover sheet 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. 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