New South Wales District Court CITATION: R v Eden O'GRADY [2010] NSWDC 14 JUDGMENT DATE: 22 January 2010 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: Sentence of imprisonment of 2 years wholly suspended upon entering into a good behaviour bond for the period of 2 years. CATCHWORDS: CRIMINAL LAW - sentence - reckless wounding - plea of guilty - no prior convictions - anxiety disorder - genuine remorse - public nature of offence - custodial sentence - suspended LEGISLATION CITED: Crimes Act 1900 s 33(1)(a), s 35(4) PARTIES: Regina Eden O'Grady FILE NUMBER(S): 2009/11/0788 SOLICITORS: Director of Public Prosecutions (NSW) Mr Hogan JUDGMENT 1. Eden O'Grady is a young man who comes from a troubled background who has done remarkable things to develop his life and opportunities. He has shown, as Mr Hogan who appears for him says, a remarkable degree of determination and perseverance from a young age. However, on 12 December 2008 he did a very silly thing. Not only was it silly, it was a serious criminal act and resulted in him being charged with a very serious offence. 2. I am now to sentence him for that offence and I need to weigh up, on the one hand, the need to punish offenders who have committed very serious offences with appropriately severe punishment with, on the other hand, taking into account a young man's personal circumstances in a case such as this. 3. What happened can be briefly summarised from what is agreed between the parties and recorded in exhibit A. Mr O'Grady is from Melbourne. He was visiting Sydney in December 2008 as a member of a band which was playing at a club. After the band finished playing Mr O'Grady and some friends ended up talking with some other young men. Words were exchanged between Mr O'Grady and a young man named Alexander Somers. They started pushing and punching each other and were pulled apart by Mr O'Grady's companion. Mr Somers sat in the gutter about five metres away, this was in the street, around Oxford and Flinders Streets in Darlinghurst. 4. What happened next was that Mr O'Grady approached Mr Somers from behind holding out his hand to assist him. The gesture appeared to be one of reconciliation. He said "Hey man", as if he was about to apologise, but as he got closer to Mr Somers instead of apologising he swung a wine bottle which he was holding behind his back in an arc and hit Mr Somers on the top of his head. Mr Somers stumbled on to the road and into a bus lane. He held himself against a car. The bottle was not broken by the blow, it fell onto the road and broke. After that everything went black according to his description. 5. Mr O'Grady and his companion ran away. Mr Somers and his companion chased them. A further scuffle broke out. Mr Somers phoned the police. Mr O'Grady was arrested and interviewed by the police to whom he admitted the details of the offence. Mr Somers was taken to the hospital, his wound was serious enough to have administered eight stitches to his head. He experienced pain to his head, face, his cheek and his right shoulder and his neck. A CT scan was recommended but he discharged himself from hospital. 6. As a result of what I have described Mr O'Grady was charged with the very serious offence of wounding with intent to do grievous bodily harm against s 33(1)(a) of the Crimes Act 1900. He pleaded guilty to an alternative of recklessly wounding under s 35(4) of the same Act. That offence, of which I now convict him, carries a maximum of seven years imprisonment. It is an offence regarded so seriously by the New South Wales Parliament that it has fixed a standard non-parole period of three years imprisonment to that crime. 7. It is important in any case including this one to have a clear understanding of the seriousness of a crime which is why I have set out the details of what happened first. It is also important that an offender's personal circumstances are taken into account by a sentencing judge. 8. In this case Mr O'Grady has no prior convictions. Because he lives in Victoria a report has been obtained from the Community Correctional Services Branch of the Department of Justice in Victoria. That report gave very helpful information about Mr O'Grady's personal history. 9. Mr O'Grady has recently turned twenty-one years of age. He was brought up in Queensland but moved to Victoria where he undertook a certificate in liberal arts and then gained entry to Swinburne University where he is undertaking a Bachelor of Arts in Media and Communication. His general health is good. He had a difficult upbringing which I have referred to and which I will discuss in more detail in turning to the psychologist's report. He was assessed as having a moderate risk of re-offending. The author of the report assessed him as an intelligent young man with a bright future ahead of him. He expressed empathy for the victim of the assault and did not try to minimise the offence or its consequences. It recommended a community based order rather than imprisonment and suggested certain conditions which could be administered by the Victorian authority. 10. In 2008 Mr O'Grady was himself assaulted in an armed robbery and attended for counselling with a psychologist in Fitzroy in Victoria. That psychologist treated him for the impact which the assault had on Mr O'Grady and then saw him again when he was charged with this offence. It noted that Mr O'Grady has been working as a musician as well as a barman and had no prior relevant psychiatric history but the psychologist noted some depression and anxiety as a teenager. This was said to result from an environment of domestic abuse when he was growing up. He was apparently regularly physically assaulted by his mother during his adolescence as well as it happens by a taxi driver more recently. 11. His parents separated soon after he was born and he spent most of his childhood with his mother who is said to suffer from a borderline personality disorder and said to be cannabis dependent. In fact his teenage years were so difficult that he left home aged fifteen and completed to the extent that he could his secondary education independently. 12. The psychologist who prepared the report, Mr Greco, diagnosed him when he attended in 2008 as suffering from an exacerbation to his pre-existing generalised anxiety disorder together with features of traumatic stress resulting from the assault in 2008. Mr Greco undertook regular treatment for that condition. 13. Mr Greco thought that the offence which Mr O'Grady is charged with is connected with behaviour "imbedded in his trauma history together with a significant amount of alcohol consumed" on that particular occasion. Indeed he expressed the opinion that Mr O'Grady was not in full control of his behaviour at the time the incident occurred. Mr Greco acknowledged Mr O'Grady's very difficult upbringing and recorded that to his credit he has "maintained focus on his career and education and has largely been able to stay out of trouble against the odds." He has been regularly treated by Mr Greco who expressed the opinion that "support and further counselling is the best way to encourage" Mr O'Grady for the future. 14. Mr O'Grady's personal history is confirmed in a reference from Megan Knight who had a long-term relationship with Mr O'Grady's uncle and was part of his family. She made observations about the relationship between Mr O'Grady and his mother. I also have references from his grandfather, Mr Brian O'Grady, and from a man named Rohan Buck who clearly has a very high opinion of Mr O'Grady whom he knows very well. Indeed he made some observations about Mr O'Grady's behaviour when working as a barman which indicate exemplary moral character. 15. Mr Hogan called his client to give evidence. Mr O'Grady confirmed what was contained in the various reports. He expressed genuine remorse, in my opinion, about what had happened. This was quite genuine because of his own experience in being assaulted. He said that, if he could, he would wish to personally acknowledge with Mr Somers his regret for what had happened. He is still undertaking his degree. Hardly a day goes past without him recollecting what he had done and regretting it. It is the most serious thing that he has done in his life. 16. Mr Hogan submitted that the offence lay within the lower end of the range of objective seriousness pointing to the injury being not substantial and the victim not requiring to stay in hospital. He argued that it was opportunistic and there may have been some provocation involved because of the previous scuffle. He also pointed to the psychologist's observation about Mr O'Grady's own personal trauma history contributing in some way towards the behaviour. 17. Mr Singh, who appeared as prosecutor, on the other hand emphasised the seriousness of this public violence. He reminded me of the attitude which the Court of Criminal Appeal has taken towards what are called glassing cases and of the importance of general deterrence in sentencing in serious offences such as this. 18. In response Mr Hogan argued that although the offence in this case involved the use of a glass bottle it was not broken and not used in a way as a form of weapon as happens in many of these cases where it is smashed and forced into the victim's face. 19. To my mind the offence is a serious example of public street violence involving a weapon and involving a wound which required a young man to attend hospital. Although it was spontaneous and followed a scuffle, nevertheless it was a serious incident of street violence. 20. I think the offence falls within at least the upper end of the bottom end of the range of objective seriousness. Indeed I think it more likely that, which I find, it falls within the lower end of the middle of the range of objective seriousness and I so find. As I said earlier this offence carries a standard non-parole period of three years. Strictly speaking that non-parole period does not apply because this involves a plea of guilty but nevertheless it is important to bear it in mind as a guidepost as Mr Singh reminded me. 21. Mr Hogan ..(80 seconds break in recording).. I do not regard that as an appropriate penalty in this case because of the seriousness of the offence which occurred. Mr Hogan's secondary position was that a bond under s 9 of the same Act might be appropriate. 22. Mr Singh on the other hand argued that this is a case which can only be dealt with by way of a custodial sentence, indeed a full-time custodial sentence would be appropriate. He said that based upon the seriousness of the offending behaviour as well as on how serious Parliament regards the offence by fixing a standard non-parole period to it. 23. I think Mr Singh is right in his submissions. I think this is a sort of crime that because of its public nature and the serious personal violence that was involved can only be dealt with by way of a custodial sentence. If this matter fell within the middle of the range of objective seriousness and Mr O'Grady was convicted after a trial, I would regard an appropriate sentence as one of four years with the standard non-parole period of three years. 24. However, the matter falls towards the lower end of the middle of the range of objective seriousness and I would regard an appropriate sentence as one of just over two and a half years with a non-parole period of about two years. 25. However, Mr O'Grady has pleaded guilty and I propose to allow a discount of twenty per cent because he has pleaded guilty. I do not allow twenty-five per cent because the plea was relatively recent, although it did follow some negotiations between the parties. I would regard an appropriate sentence as in the region of about twenty-five months. Because of Mr O'Grady's clear remorse, I would reduce that sentence to one of twenty-four months. 26. I turn my attention to the question of how that penalty should be served. This is such a serious offence that there is some force in Mr Singh's submission that it should be served by way of full-time custody. A Periodic Detention Order I cannot impose because I do not have a report indicating that it is available. That is because Mr O'Grady lives in Victoria and the report understandably did not deal with that sentencing option. 27. He has made very good progress with his psychologist. He is a young man, as I said, who has shown much determination and perseverance in overcoming significant factors in his personal history. He has got himself to university and is part-way through a degree and has an idea of what kind of general direction he might take. The psychologist is confident that he can assist him as he has in the past. He has family support. Although he has a moderate risk of re-offending, I regard it as appropriate in this case given his age and prospects of rehabilitation which are assisted by his clear remorse and attitude to the offence that an order suspending that sentence is appropriate. 28. For the offence of recklessly wounding Alexander Somers I impose a sentence of imprisonment of two years and I make an order under s 12 of the Crimes (Sentencing Procedure) Act 1999 suspending execution of the whole of the sentence for the whole of the two years. I direct that you be released from custody on condition that you enter into a good behaviour bond for two years. 29. That good behaviour bond is subject to the following conditions: (1) that you be of good behaviour; (2) that you notify the registrar of this court of any change of your residential address; (3) that you attend court if called upon to do so and (4) that you accept supervision on an informal basis from the Community Correctional Services Branch of Corrections Victoria in the Department of Justice, including that you are to attend for assessment and treatment for drug and alcohol addiction; you submit to medical, psychological or psychiatric assessment and treatment as directed by the regional manager and (5) that you report to the Carlton Community Correctional Service, 444 Swanston Street, Carlton by 4pm on Wednesday 27 January 2010. HIS HONOUR I will explain all that to you in a moment. Now, any other conditions? I have taken those conditions from the report and in the terms which they have asked for. Any other conditions I should impose, Mr Hogan? HOGAN: No, your Honour. HIS HONOUR: Mr Singh? SINGH: No. 30. All right. Mr O'Grady, because of the seriousness of this offence I have sentenced you to imprisonment for two years, it is a serious offence, you have heard me explain it. But because of the reasons that I gave, particularly your age, your background, you have obviously made an effort with your life and you are heading in the right direction, I have suspended the sentence. It is suspended for the whole two years. 31. A few conditions, some formal ones. If you change your address from wherever you are now you have to write to the registrar of this court and tell them. If you get a notice saying you have to come back to court, you have to come back. A third one which is very important is you have to behave yourself, no more trouble. Nothing even minor like possessing cannabis or stuff like that. I will explain why in a moment. The fourth and fifth conditions are the supervision. I have taken it from the report which they have given. You are to accept supervision informally because I cannot order it - they do it informally because they are not in New South Wales, from these people in Victoria that I named. You have to go and be assessed for treatment for drug and alcohol and including medical psychological, psychiatric assessment and treatment as they direct. And you have to turn up to that address which will be in the report which Mr Hogan has. And they say you have to report within two working days of the order. So that is why I have said you have to turn up. Are you going back to Victoria over the weekend? You have to turn up - remember Tuesday is a holiday. So it's either Monday or Wednesday but definitely by Wednesday at 4 o'clock. Is that where you went for you interview? OFFENDER: Yes, your Honour, it was. HIS HONOUR: 444 Swanston Street, Carlton. And they will assess you and supervise you. 32. What is really important in these sorts of cases, which I have to explain, is a suspended sentence and the bond that goes with it means that if you breach the suspended sentence, it is not like an ordinary bond. An ordinary bond you come back to court and the judge says "Look, I understand what happened, okay. We will put you back on the bond." A suspended sentence means that when you come back, if you breach it, the judge has very little choice but to send you to gaol and it may well be full-time gaol here because we cannot give you periodic detention or may not be able to, I am not too sure. The law in New South Wales means that if you have a suspended sentence with a bond and you breach it, the odds are in favour of you going to gaol. It is very hard for the judge to avoid it. It says you have to go to gaol unless and it is very difficult to avoid. So it is a tough sentence. Mr Hogan will explain it to you. So you have to stay out of trouble for those two years or you will be back before me and I will not be able to be as sympathetic or as lenient. My hands will be tied. You might end up in goal which is what you do not want. 33. You have done very well in getting your life together. For a young man, your age, that is very impressive. I know a number of people have probably told you that. It is good work, keep it up. Get help from the corrections people, they are experienced, they know what they are doing. Mr Greco, you get on well with him? OFFENDER: Yes, your Honour. Good, stick with him as well. All these people will help you and help you get your life together which you are obviously already doing and carry on that way. So good luck. Is there anything else, Mr Hogan? HOGAN: As a matter of form, should your Honour either fix a non-parole period or record your reasons for not-- HIS HONOUR: Your instructing solicitor is shaking his head and I think he is right. HOGAN: I understand - because I discussed it with him, that with suspended sentences-- HIS HONOUR: I think you fix it if it is breached. HOGAN: --you do not. But I'm aware of some authority with standard non-parole period offences that the Court of Criminal Appeal has indicated a non-parole period should be fixed. But perhaps because it is for suspended sentence, that's overridden by that. If your Honour is-- HIS HONOUR: I think so. HOGAN: --content that you should not and need not, then I'll defer to your Honour's wisdom. HIS HONOUR: You have reminded me of something else, do I have to give reasons for-- HOGAN: That's what I wondered, whether your Honour needed to indicate the particular part of the Sentencing Procedure Act that I was looking at-- HIS HONOUR: Section 50-- HOGAN: --was 45 whereby if you don't set a non-parole period, you ought to indicate the reason that you weren't doing so. HIS HONOUR: I'm not sure that applies, I think what might apply is s 54C. But I'm not sure whether this counts as a non-custodial sentence. HOGAN: I think it does, your Honour. And in the sentence that I have it's specified at paragraph - well, under 5S, 54C(10). HIS HONOUR: I see what you mean. HOGAN: I raise it as a question to which I don't know the answer and I just thought your Honour needed to consider them, the obligation to accord reasons for not setting a non-parole period. You've certainly record your reasons for not setting the standard non-parole period but the issue of not setting a non-parole period at all is what I was addressing. HIS HONOUR: I think that's - what do you say, Mr Singh? We could always come back for sentence revision. SINGH: Yes, your Honour. I think these days when you breach a suspended sentence that only when you come back, the only thing that's done is a non-parole period is set. So I mean, applying common sense, I can't give you a great legal answer yet, it means that it's open for you to not set suspended sentence because that's what's required if there's a breach, your Honour, to fix that situation. Yes, you do have to give reason which you have given reason why you didn't apply the standard non-parole period. 34. And I think I've complied with s 54C in identifying the mitigating factors which I took into account, specifically his personal background and particularly his age, for the record are the factors which I took into account under s 54C. I doubt whether s 45 applies if you're suspending the sentence because you don't fix a non-parole period. If I'm wrong, then we'd better bring it back under s 43, but I don't think I am. I've said that before. HOGAN: No. HIS HONOUR: Your client probably needs to go and fill in forms and things like that. HOGAN: Yes, my solicitor has made sure that the registry anticipated that they would still be going to avoid the possibility that we might not be able to enter the bond today. So we'd better get going. HIS HONOUR: All right. Thank you both for your assistance, I've appreciated that. It hasn't been straightforward, but we've finished it now. And I'm grateful to both of you for your submissions. It's now approaching 25 past 5. The court officer is here without complaint, the sheriff's officer and my associate; somebody is monitoring us. There will be court staff, all of whom performing their duties on this Friday afternoon without any complaint. And I personally appreciate that. I had to attend a funeral this morning which meant that I wasn't able to sit this morning and their inconvenience has met my convenience so I am grateful. 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