New South Wales District Court CITATION: R v Arthur Edward MAYBURY [2007] NSWDC 238 HEARING DATE(S): 25 October 2007 JUDGMENT DATE: 25 October 2007 EX TEMPORE JUDGMENT DATE : 25 October 2007 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: See paragraphs [28] & [29] CATCHWORDS: Criminal Law - Sentence - Maliciously inflict grievous bodily harm - Threaten to destroy / damage property to injure another - Assault occasioning actual bodily harm - Breach of s 12 bonds - Abuse of alcohol PARTIES: The Crown Arthur Edward Maybury FILE NUMBER(S): 07/31/0204 SOLICITORS: NSW DPP Legal Aid Commission SENTENCE 1 HIS HONOUR: Arthur Maybury is now forty-one years of age. It is a matter of considerable sadness that in his evidence today he said that four of the years he had before he was ten years old were the happiest time in his life. Since then, he has never known happiness that he knew when he was cared for by foster parents who support him to this day. 2 Mr Maybury was abandoned by both of his parents at only three years of age and placed in a boys' home. From there, he went to live with his foster parents and spent the happy time that I have referred to. However, his mother came back on the scene and she was given custody of Mr Maybury again. 3 The time that he spent with her was terrible. He was subject to repeated acts of violence from her. She was an alcoholic and so was his stepfather. His natural father was also an alcoholic. In those circumstances, it is not surprising to find that Mr Maybury also has had a long and difficult problem with alcohol leading up to the commission of a number of serious offences. 4 It is alcohol that leads Mr Maybury astray. It causes him to become violent and, to put the matters more precisely, it causes him to commit violent crimes. I have to deal with Mr Maybury today for a number of offences of violence committed whilst he was significantly intoxicated, but he well knew that he had a history of aggression and violence when drunk, so the fact that he was drunk when he committed these offences is not a mitigating feature at all in this case. 5 The matters that I have to deal with today come before me in a number of ways. Let me, firstly, deal with two offences of assault occasioning actual bodily harm committed by the offender on a man by the name of Stanley Graber. There are some similarities between the way these offences came about, and the way two other offences that I have to deal with later on in these remarks came about. 6 The offender took it upon himself to act violently towards an acquaintance of his. He was followed into his flat by the offender and punched to his face three times. That led to the offender being charged with an offence of common assault. After those acts of violence, Mr Maybury left the unit and went to another home unit. The victim s followed him, believing that Mr Maybury had left the vicinity, but when the two saw each other again, Mr Maybury got up from the lounge and again punched the victim to his face. He punched him about eight or nine times on this occasion causing his nose to bleed. 7 When the offender was interviewed, he said that he was incensed by the victim sexually propositioning him two weeks earlier. It is difficult to accept that that is the case when what the offender said to the victim while he was punching him on the initial occasion was "Stop telling Ecky's mother rumours about me." In truth, what has probably led to these two acts of violence is simply the offender's excessive alcohol consumption. 8 For those matters, he was placed on s 9 bonds by a magistrate. One of the conditions of the bonds was that he accept the supervision of the Probation and Parole Service but he failed to do so and so he was called up. The magistrate then put him on s 12 bonds suspending the execution of the sentence. The magistrate imposed a sentence of imprisonment for three months but suspended their execution for that time, however, the offender committed other offences which I will shortly deal with, representing a breach of those s 12 bonds and so he is to be dealt with for that breach. He has consented to me dealing with those breaches today so that he can have matters over and done with and look forward to the future with some certainty. 9 As well as those matters, the offender has pleaded guilty to very serious offences, one of maliciously inflicting grievous bodily harm and one of threatening to damage or destroy property with intent to injure someone else. Those offences came about in the following way. 10 The offender lived in a shed at the rear of premises owned by a woman by the name of Elaine Stoddart. A man by the name of Tony Williams, who became the victim of the other two offences that I will shortly describe, lived as a border in the house. In the weeks leading up to these offences, the offender had become increasingly aggressive towards the occupants of the house, so much so that Miss Stoddart took the decision that she would ask the offender to leave. She, therefore, went with Mr Williams to Cessnock Police Station to seek police assistance to evict the offender. Thus, he was asked to leave the premises on 10 February. He pleaded to be able to remain at the house and so it was decided that he would stay one more night before leaving. The police then left but all that led to was the offender taking advantage of the opportunity, that thus presented itself, to become violent towards Mr Williams. 11 The offender began by shoving Mr Williams in his chest and told him to go to the shed where he lived. Once there, he was told to sit on the couch and Mr Maybury punched the victim to his face with both fists. He said to him, "You're a dog and I'll get you back before I go. I'll burn the shed, I'll burn the house. Don't doubt me, arsehole". 12 He continued to punch Mr Williams to his face until Mr Williams began bleeding. This did not cause the offender in any way to cease what he was doing. Indeed, things got worse. He picked up a knife and pressed the point of it to Mr Williams' throat. They struggled for a while before Mr Williams released his hold and the offender threw the knife away. 13 At one stage the offender used a towel to wipe the blood away from Mr William's face but he then hit Mr Williams in the face with the towel and punched him again before kneeing him to the ribs. He poked him in the face with a broken piece of dowel. 14 These attacks led to Mr Williams suffering a number of serious injuries. He suffered a broken nose, a broken cheekbone and a broken eye socket. He suffered significant bruising, abrasions and swelling to his face. He suffered bruising to his ribs. That, however, was not enough for the offender. He wanted more. And so he demanded that Mr Williams lie down on the bed. He had earlier asked him to remove his T-shirt. At this stage, the offender poured petrol over Mr William's body and, in particular, the shorts that he was wearing. The offender then sat on a chair next to the bed where the victim lay and lit a cigarette lighter. He threatened to light Mr Williams with the lighter. Indeed, he picked up a shirt and held the lighter to it and then to the mosquito netting above the bed. Scorch marks were later found on the shirt. 15 The victim begged the offender to stop. Fortunately, the offender's mobile phone rang and after he answered the telephone call, his demeanour changed. Indeed, he apologised to Mr Williams and left the premises. 16 Not surprisingly, Mr Williams has been left with consequences which extend beyond mere physical injury. Those consequences were entirely understandable and foreseeable. They are set out in a Victim Impact Statement tendered to me. Mr Williams has been significantly harmed by the offender's disgraceful conduct and that is a matter I will give considerable weight to in determining the appropriate way in which I will deal with Mr Maybury. 17 I mentioned something of Mr Maybury's earlier background. After living with his mother for awhile and going to school, he ended up leaving school at year 8 but has worked regularly since then, most recently in the construction industry as a labourer. He has lost a few jobs in the past due to his alcohol consumption and the unreliability that that causes. 18 His alcoholism has, of course, interfered to a significant extent with his interpersonal relationships. He has a daughter but his former partner will not let his daughter have any access to Mr Maybury because of his abuse of alcohol. 19 On top of all this, a few months before the offences involving Mr Williams, the offender started to use ICE. He has no memory of the offences involving Mr Williams but, as I said earlier, it is not a mitigating feature in this case that these offences were committed by the offender whilst intoxicated because he knew full well that if he became intoxicated to excess, he was likely to become violent and aggressive. 20 I mentioned one unusual aspect of Mr Maybury's life earlier in these remarks on sentence but there is another striking one and that is that Mr Maybury says, and anyone who heard this case would agree, that Mr Maybury going to gaol is the best thing that could have ever happened to him. He has made a significant transition from a violent alcoholic to a person who is actually regarded by the authorities as a role model whilst in prison. It is a remarkable journey and one which can be put down to the fact that Mr Maybury no longer has easy access to alcohol and is, therefore, perhaps for the first time in a very long time, able to look at the person he is and rationally think about what he wants to become. 21 The offender has plans for the future which recognise the scourge that alcohol is for him. He wishes to continue the rehabilitative efforts that he has begun whilst in custody. He sees a future for himself. He wants to re-establish contact with his daughter. He wants to recommence work and he wants to become a person who is not violent. 22 Thinking straight has enabled him also to recognise the harm that he has caused, in particular to Mr Williams. He was able to express his remorse to Mr Williams who was present in court. It has to be said that there is no evidence that Mr Williams has, in any way, forgiven Mr Maybury for what happened to him, nor should he. Mr Williams has suffered what was clearly gratuitous cruelty, at the hands of the offender. It is probably not going too far to say that by throwing petrol on him and lighting the lighter, Mr Maybury was torturing Mr Williams. That this occurred after he had already broken many bones in Mr Williams' face just shows how serious his conduct was. 23 Of course, it is also an aggravating feature that these offences were committed whilst the offender was on conditional liberty, those two s 12 bonds that I have earlier referred to, and it is significant that they too were for offences of violence. 24 I am satisfied that the remorse that Mr Maybury has expressed is genuine and that he is ashamed of the sort of person that he was when drunk. I am satisfied that he has a genuine desire to overcome his alcohol problem. He has already done much but there is a long way to go. Should he be successful he is unlikely to re-offend. 25 I note also that the offender pleaded guilty at an early opportunity. That is evidence not only of his remorse but also has a utilitarian value which should be reflected in a discount in the sentence I would otherwise have imposed by twenty-five per cent. 26 There are special circumstances in this case. One of the most important perhaps is that it is my recommendation that the offender be released to parole only after he is accepted into a long term alcohol rehabilitation program similar to the Salvation Army Lake Macquarie Recovery Services Centre Program which runs for ten months. That is a residential program and has been regarded as quasi custody in the past. It is my expectation that upon the expiry of Mr Maybury's non-parole period, he will be required to attend such a program, and so the relationship between non-parole period and head sentence is significantly varied in view of the quasi custody which I expect will occur after the expiry of the non-parole period. 27 Mr Maybury has had an appalling upbringing. He is person who is deserving of considerable sympathy. He is clearly very upset at where he finds himself today. He clearly longs for those four years that he spent with his foster parents. It is a credit to them that they still support him. But despite all the sympathy that I feel towards Mr Maybury, I must recognise that he has committed serious criminal offences. Although I am satisfied of Mr Maybury's genuine desire to rehabilitate himself, it must be recognised that things are not going to be easy for him once he is returned to the community. For that reason, I consider that there needs to be a substantial component of personal deterrence in the sentences I will shortly announce. There needs, also, to be a substantial component of general deterrence. There are many violent alcoholics around who should know that violence caused by excessive alcohol consumption is not an excuse and that where it occurs, it will be dealt with severely. 28 I revoke the order for suspension in relation to the concurrent three month terms of imprisonment imposed by the magistrate. The offender will thus be subject to concurrent three month fixed terms from the 11 February 2007 to 10 May 2007. I will impose concurrent sentences for the matters to which he pleaded guilty at the local court and which were committed for sentence to this Court. 29 On each case, I set a non-parole period of fifteen months to have commenced on 11 May 2007 and to expire on 10 August 2008 on which day the offender will be eligible to be released to parole. I set a head sentence of three and a half years. The effective non-parole period is eighteen months and it is my firm recommendation that the offender's release on parole be conditional upon him attending and remaining at the Salvation Army Lake Macquarie Recovery Services Centre Program or a similar program until satisfactory completion of that program. ********** 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.