R v Rutera [2007] NSWDC 240

New South Wales District Court

CITATION: R v Rutera [2007] NSWDC 240

HEARING DATE(S): 14/09/07 25/09/07

JUDGMENT DATE: 25 September 2007

JURISDICTION: Criminal

JUDGMENT OF: Conlon SC DCJ

DECISION: CONVICTED: Sentenced to non-parole period of 2 years with an additional 2 years imprisonment. Special Circumstances.

CATCHWORDS: Maliciously inflict grevious bodily harm

LEGISLATION CITED: Crimes Act 1900 (NSW) Crimes (Sentencing procedure) Act 1999 (NSW)

CASES CITED: R v Berg [2004] NSWCCA 330

PARTIES: Crown Malcolm Junior Rutera (Accused)

FILE NUMBER(S): 07/41/0102

SOLICITORS: Mr M Stollery (Crown) Mr G West (Accused)

JUDGMENT

1 HIS HONOUR: Malcolm Junior Rutera appears for sentence following his plea of guilty to a charge of maliciously inflicting grievous bodily harm. This offence is contrary to s 35 of the Crimes Act and carries a maximum penalty of seven years imprisonment. The offender has also requested that one further matter be taken into account on a Form 1 Schedule. The facts (contained in bundle of documents exhibit A) are as follows: "During the evening of 25 November 2006 the victim Mark Eggleston joined approximately ten colleagues for Christmas drinks at the Brewery Bar situated on Crown Street, Wollongong. At about 12.15am that night the victim left the function along with his colleagues and walked west along Crown Street. During this time the victim has walked ahead of the main group to make a mobile telephone call. He was approximately ten metres in front of his colleagues in the vicinity of the Downtown Motel. The victim finalised his phone call, looked downwards and placed his mobile phone into is pocket. As the victim was lifting his head he felt a sudden blow to his nose region. This caused sudden and extreme pain and he dropped to the ground. At this time there were a number of witnesses walking behind the victim and the offender. One of the witnesses is named Mark Stone and he was not known to either the offender or the victim. Mr Stone states that he was walking eastbound on the northern side of Crown Street, Wollongong. He observed the offender walking with three or four other males. Mr Stone recalls the offender walking past the Glasshouse Tavern towards the Downtown Motel. He observed the offender approaching the victim from behind and saw the offender step to his left as he neared the victim and then king hit the victim from behind and to the side. He observed his fist connecting with the victim's face. Mr Stone stated that there was no prior conversation between the offender and the victim. He said 'It was a totally unprovoked attack'. Mr Stone also said in his statement: 'At the time of the assault I was approximately four to five metres to the right hand side of him. There were also a large number of people walking behind the victim. I walked through the group to confront the male offender but was stopped by another male within the group. This male said "What are you doing?", I said "That was the biggest dog act", the male said "I know", then stepped backwards and allowed me to walk through the group'. Mr Stone and a second person, a Mr Alchen then approached the offender with a view to apprehending him. The offender has walked away increasing his speed. The offender continued to walk east along Crown Street and at one point turning towards the witnesses said 'Come on, come'. The offender has started to jog towards the Harp Hotel, both witnesses have confronted the offender within the driveway of the Harp Hotel. Police immediately arrived and approached the offender. The offender started to punch out towards police, police were then forced to use capsicum spray in an effort to subdue and arrest him. When police with the assistance of security staff have attempted to restrain the offender on the ground he continued to struggle until handcuffs were applied. He was then placed in a police vehicle and conveyed to the Wollongong Police Station where he was charged. As a result of this assault the victim has received a fractured mandible (jaw), which required immediate surgery at Westmead Hospital. During the surgery the doctors have inserted two titanium plates within the victim's jaw. He received other injuries including two black eyes, a broken nose, cuts and abrasions. The victim was also suffering from dizziness and nerve damage to the bottom lip and jaw area."