New South Wales District Court CITATION: R v Feeney, Ryan [2008] NSWDC 355 JUDGMENT DATE: 8 February 2008 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Section 9 bond with supervision for 18 months (x2). CATCHWORDS: Criminal Law - Sentence - common assault (x2) - offence motivated by unconnected cause of anger - female and male victims - on-goiing assault against male - substantial size advantage against both victims - reasonable subjective circumstances. PARTIES: Regina Ryan Heamoni Feeney FILE NUMBER(S): 07/21/0201 SOLICITORS: Crown: M Graczol Defence: V Hampel JUDGMENT 1. Terrence Connors and Alison Trauntner were living at Unit 10 in a block of units at 243 Targo Road Toongabbie. Their neighbour was Ryan Feeney, he lived at number 12 with his father. The units of both parties, that is the Connors and Trauntner on one hand and Feeney on the other, were on the top floor of the unit block. 2. On 28 November 2006 Connors and his girlfriend were home in their main bedroom watching television as they lay in bed. There was a thumping sound coming from the front door of their apartment. Connors approached the door and saw Ryan Feeney standing there. Ryan Feeney would be probably 6 foot 2 and possibly 90, 95 kilos. He appeared agitated and Connors came to a view that he was intimidating. Connors became scared, it is important to note not a word at this point in time had been said and walked away from the door down a corridor towards the lounge room. 3. Meanwhile Alison Trauntner was coming from the bedroom. She walked past the bathroom and Ryan Feeney turned to her and said "do you wanna fight me Al" or "do you want to fight me aye", it might be aye. He raised a closed fist and struck her on the right side of her face causing her immediate pain. 4. Connors was sitting on a dining chair while Ryan Feeney was standing by the entrance to the kitchen. Connors was told to get up as Ryan Feeney wanted to fight him. Connors not surprisingly, given the size of his opponent, refused the request to fight. The offender further approached him verbalising an intention to fight. Connors decided the better part of valour was to run, exited the unit blocks and continued some 250 metres away from the unit blocks onto a lane known as Cox Lane. The offender gave chase and caught Connors, grabbed Connors on the left shoulder and pushed him against a wire mesh fence. He punched Connors. Connors crouched lifting his right knee to protect himself from assault. Trauntner by this time had arrived at the location shouting words to the effect "stop Ryan please, please". 5. [When arrested] he was conveyed to the Merrylands Police Station and read his rights in accordance with the LEPRA guidelines. His state of intoxication was such that police came to the view that he could not be interviewed and was subsequently charged with the matters now before the court. 6. On 13 November 2007 an indictment containing five charges was presented against Ryan Feeney. The first being that he had broken and entered a dwelling house and committed a serious indictable offence, therein namely demanding money with intent to steal knowing that the persons were inside the dwelling house. The next was that at the same time and place he assaulted Alison Trauntner. There was a further charge of assaulting Terrence Connors occasioning to him actual bodily harm or in the alternative a count of simple assault against Terrence Connors. And finally a charge of affray. To that indictment the offender pleaded guilty to the two charges of common assault and the Crown accepted those pleas in full satisfaction of the indictment. 7. The first charge is important in as much as it would suggest that there was something left out of the agreed facts which is of importance. 8. A Probation and Parole Service report was prepared in which the offender when asked about the offences said that at the time he had been drinking heavily with his father and numerous emotional issues had arisen. His father asked him to collect money from the victims in order to buy more alcohol which apparently angered him. 9. Today Ryan Feeney is to be held accountable for his criminal conduct as exhibited in the two common assault charges. The courts task is to assess the seriousness of the criminality of this behaviour. That is done by assessing the objective criminality of these two offences by comparing them to offences of a similar kind, to offences of similar kinds in the experience of the court. 10. The court also needs to consider other matters, subjective matters, allowances to be made for the plea of guilty and the ultimate sentencing disposition. The Objective Criminality 11. The offences disclose firstly that this offender clearly had entered the premises, with some degree of anger before he even entered. What caused that anger is unclear. The nearest it is explored in the evidence is that his father and he had been discussing "emotional issues"; in that context the father had asked the son to obtain money from the neighbours and that demand or request of the father for some reason or other has angered the son. In those circumstances it would appear that the resentment was not against the neighbours but against the father or against the request. Why it should be that the neighbours needed to pay the price is difficult to understand. In the agreed facts, of course, there is no mention of the demand for money. One has to go to both the indictment allegation and to the Probation and Parole report. What also emerges from the agreed facts is that the assault upon these two innocent parties was gratuitous at least so far as they were concerned. It was impulsive and opportunistic in the sense that he had gone to their door and regrettably they were home. 12. The assault against a woman is always a cowardly act and when one looks at the size of the offender before me and one imagines what strength he could muster and contemplates a woman trying to answer that, the picture does him no credit. 13. The assault against Connors is an ongoing assault. It starts from the moment there is the invitation to fight in the kitchen and continues for a substantial period of time ending up with him being impaled against a mesh fence. So an aggravating feature of the offence is the gratuitous violence and the level of violence particularly exhibited towards Connors, that is a violence that needed pursuit in order to be consumed. 14. There are, on the offender's antecedents, other offences which would appear to indicate problems with alcohol. In November 2004 there is resisting the police officer, assault the police officer and using offensive language. In October 2007 there appears to be another offence of resisting a police officer. As a measure of objective seriousness these assaults are serious although not at the upper level of assault but certainly within the mid range of seriousness for assaults. 15. The assault upon the woman was only of the one blow so far as I can tell and it would seem inferentially the assault against Connors was broken off with the arrival of Alison Trauntner. The Subjective Features 16. Ryan Feeney is 24 years of age now and would have been twenty-three at the time of this offending conduct. He was at the relevant time living with his father, a Tongan man who may not have been a good influence on him at least so far as alcohol and the consumption of alcohol is concerned. His parents appear to have separated when he was relatively young. He is the third eldest of his father's eight children. Each of those children to a different woman. His mother entered a longer term relationship as I understand it with his father's brother, that is the offender's uncle. The offender's uncle or his stepfather, whatever, is described as violent and also is unfaithful. Ryan Feeney has disclosed an instance or at least an episode of sexual assault by an older brother. That matter is still troubling him and in my view may well be contributing to personal issues that this offender needs to confront. Ryan Feeney says that his closest family relationship was with a maternal grandmother who passed away a couple of years ago. There is now another person of significance in his life and that is a girlfriend with whom he lives at Nelsons Bay. The Probation and Parole report says she presents as both supportive and pro-social. 17. It is clear also that the offender's mother and father are supportive of him because they are here at court today; although it would seem not in the court because of sensitivities experienced by the offender himself. He would prefer that they would remain outside the court. In that sense there is some concern about the nature of support he receives. People can only be effectively supporting if they know what the troubles are that are troubling someone and to keep matters within oneself or to shield those who would support from them often hampers the quality of support that they can give and suggests a difficulty in trusting. That issue may be well placed, on the other hand it may be ultra cautious, I do not know. But it would need to be considered. Employment Education and Skills 18. Ryan Feeney obtained his school certificate. He has worked as a labourer in the hospitality industry and to his credit in March 2007 gained a full time employment as a cleaner in the Salamander Bay shopping centre. I have two references from those who know of him in his work environment. Frank Gadaleta is the Operations Manager at the Salamander Bay shopping centre. On 7 February this year he wrote that he had found the offender to "be hard working and a caring individual. He has dealings with the public on a constant basis and has shown that no matter the situation he is always calm and deals with the matter positively". Well the calmness is not something that we saw on 28 November 2006. Gadaleta says Ryan is one of the few workers that he would consider "sincere in his belief to do the right thing, he is always eager to help and to do new things". 19. His immediate boss Jim Villanueva is his manager or is the manager of The Venue Cleaning and says: "He is a good worker, courteous and polite, gives a hundred percent effort at work. Work ethic is commendable. Does duties without complaint and does it thoroughly. In the past three months his attitude to work has further improved. I see him to be an honest, hardworking young man and a pleasant fellow". 20. That was given on 5 February this year. 21. Probation and Parole actually spoke with him and their impression of what Mr Villanueva was saying was "his employer gave an excellent verbal reference describing the offender as conscientious, courteous and hardworking". He confirmed that Mr Feeney works Tuesday to Saturdays and that he would lose employment if he were not available on Saturdays. General Health 22. So far as one can tell this offender appears to enjoy good health. Mental Health Issues 23. There are so far as one can tell no fixed pathological issues that are contrary to any rehabilitation being achieved. Or put another way it would seem to me that his mental health generally is good. But there do appear to me to be some issues that need to be resolved. His attempted suicide at the age of eighteen that would suggest a significant depression. Depression particularly in young men is not an unusual thing at all. Males aged late teenagers to thirty are the biggest suicide group in Australia particularly up to the age of twenty-five. There is clearly unresolved quite possibly guilt issues and anger issues relating to a sexual assault that had occurred on him when he was aged six some eighteen years ago. 24. Those issues need to be resolved and the sentencing disposition that I will be imposing will require that they be addressed. There are anger management issues. Whether that anger management is related to the example that his stepfather gave to him of violence as a means of sorting out problems, or whether they relate to some brooding resentment lingering at himself or at others as a result of the sexual assaults or both is unknown at this stage because there has not been counselling although he has made what I might call tentative attempts at it. And there is also a pre disposition to heavy drinking especially binge drinking which at the moment is being managed on his account quite successfully but he should not think that because it is being managed it is not there and that would seem to me also to need some attention. 25. There is the further issue of what it was that was so enraging to this offender that he needed to take it out on two, as it would seem on the evidence, innocent people, in gratuitous acts of violence. 26. So the mental health issues are there that need attention. But the view I take is that they can be resolved by counselling. 27. The offender's criminal antecedents show that he has been before the court on a number of occasions some for driving offences in 2005, goods in custody and furnish a statement which is false in 2005, the resist police officer in October 2007 and a number of other matters relating to inappropriate resisting of police officers in 2004. 28. This is his first occasion in the superior court. In reality these matters could have been dealt with in the Local Court. The indictment that was presented was an indictment presented carrying other charges which needed to be dealt with in this court. So in the scheme of the criminal world these offences are towards the lower range of criminality. 29. Although he was I have no doubt committed for trial on the indicted matters it would appear that when he did plead guilty to the common assault that was on 13 November when the fresh indictment or an indictment was presented. As best I can tell it would be at arraignment and presumably by some consent so I regard the plea as relatively early entered. 30. His rehabilitation prospects look good particularly if, as I intend to do, he is supervised and addresses the issues which are contributing to or at least may be contributing to his criminal conduct. So far as I am aware he has not spent any time in custody since his arrest. I am satisfied he is truly contrite for the offences that he has committed. I see his rehabilitation prospects more positive than negative. 31. Would you stand up Mr Feeney? I convict you of the charge that you on 28 November in Toongabbie in the State of New South Wales did assault Alison Trauntner. I also convict you of the offence that you on 28 November 2006 at Toongabbie did assault Terrence Connors. In respect of each offence you are convicted. In respect of each offence I order you to enter into a bond to be of good behaviour subject to these conditions for a period of eighteen months from today. 32. The conditions of the bond are firstly that you will be of good behaviour, that is you will not commit any offence of a traffic nature or of assault or of any other nature for the eighteen month period. 33. Secondly if you breach that condition and the other conditions of the bond you will come to my court in answer to the breach. 34. Thirdly that you will give to the registry downstairs your current address and in the event you should change your address within seven days notify the registry of your new address. 35. Fourthly you will accept the supervision of the Probation and Parole Service for such period as they deem necessary but it will include your accepting counselling, treatment or programs as directed by them in respect of anger management and alcohol abuse. 36. It will be a further condition of the bond that you prove to Probation and Parole Service by at least once a month for a six month period attendance at counselling in relation to the prior sexual assault upon you and such other matters as may be causing you emotional and mental distress. The easiest way to do that proof is once a month to show them a receipt from the counsellor. They may also assist you in finding a good counsellor if you have not already got one. The community mental health team at Nelsons Bay may be able to put you in contact with a counsellor but in any event once a month for six months you have to show that you have been at that counsellor receiving counselling on that issue. 37. Do you understand all that? OFFENDER: Yes. HIS HONOUR: Well you tell me back what you have got to do. OFFENDER: I've got to report to Probation and Parole and that I have to seek counselling and drug and alcohol. HIS HONOUR: Drug and alcohol? OFFENDER: Yep. HIS HONOUR: Anger management. OFFENDER: Yep. HIS HONOUR: And show them once a month proof of counselling in that other area. OFFENDER: Okay. HIS HONOUR: Do you agree to be bound by those conditions? OFFENDER: Yeah I agree your Honour. HIS HONOUR: This bond will be entered downstairs and you can take it with you. OFFENDER: Okay thank you. HIS HONOUR: You report to Probation and Parole by 4 o'clock on Wednesday of next week, on or by 4 o'clock of Wednesday of next week. OFFENDER: Okay. 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.