New South Wales District Court CITATION: R v Lenaghan-Britton [2006] NSWDC 8 HEARING DATE(S): 06/05/2005 JUDGMENT DATE: 6 May 2005 EX TEMPORE JUDGMENT DATE : 05/06/2005 JUDGMENT OF: Berman SC DCJ DECISION: See Para 12 CATCHWORDS: Criminal Law - Assault Occasioning Actual Bodily Harm - Malicious Damage - Sentence PARTIES: DPP Michael Lenaghan-Britton FILE NUMBER(S): 04/11/0828 COUNSEL: J Bowers - Crown C Salsone - Offender SOLICITORS: NSW DPP Andrea Jane Turner SENTENCE 1 HIS HONOUR: Michael Lenaghan-Britton pleaded guilty on 1 February 2005 to two offences which he committed on 9 August 2003, some considerable time earlier. One was an offence of assaulting Sami Kukuljac thereby occasioning to him actual bodily harm. The second offence was maliciously damaging Mr Kukuljac's property, in particular a Ford Falcon sedan. 3 Mr Kukuljac was working as a security guard. He parked his vehicle in a position where he could observe a partially completed apartment building, the security for which he was responsible. At about 10.20pm on 9 August Mr Lenaghan-Britton and his carer Patricia Kiernan were walking along the road. They had been at a hotel. For reasons which are not at all apparent, the offender's attention was attracted to the security guard. It may be that Mr Lenaghan-Britton thought the security guard was up to no good, and may be that Mr Lenaghan-Britton had a short fuse and that something was said. It is likely that the fact that Mr Lenaghan-Britton had been at a hotel had something do to do with what then followed. 4 The offender became abusive towards the security guard. The offender put his hands partially through an opened car window. Mr Kukuljac closed that window, momentarily jamming the offender's fingers. No doubt this caused some significant pain and anger on the part of the offender, however, he seems to have overacted rather significantly. He kicked the door of the car, he took a crutch that Miss Kiernan was using and smashed the driver's side window of the car, he then punched Mr Kukuljac several times to his face. He also used the crutch as a weapon and finally he went to the front windscreen and smashed it with the crutch before returning to further assault Mr Kukuljac. 5 Mr Kukuljac then tried to drive away, as he did so the offender continued to attempt to use the crutch on him. Police attended in response to a call from Mr Kukuljac. He suffered a number of injuries, fortunately he has recovered from them. He had swelling to the left side of his face, a cut on his right hand and bruising. The car was also significantly damaged. The offender was arrested on 12 November 2003 and was in custody for 6 weeks. Whilst in custody he suffered a significant injury which has led to, as he puts it, him suffering a life sentence, I will return to the significance of that later. 6 Mr Lenaghan-Britton was a successful architect until one day when he came to discover that his then wife had killed her grandmother. Out of love for his wife and a desire to protect her, he committed a criminal offence, that being an accessory after the fact to her offence of manslaughter. He was sentenced to imprisonment, and his life significantly changed thereafter. He now has a number of significant issues in relation to his mental and physical health. 7 I have said that I would return to the issue of what happened to Mr Lenaghan-Britton when he was in custody, bail refused on this matter. He had been taking some medication but he could not be given that, or was not given it, whilst in custody. This led to him suffering a seizure. As a result of that he suffered a number of fractures particularly to his spine and since then he has been left in constant pain. He told me that he has a long list of things that he will never be able to do again because of that pain. He now barely gets two hours sleep a night. As a result of the pain he suffers, he self medicates by abusing prescription drugs and alcohol. 8 He is a very intelligent man and accepts that he cannot continue to do this. He is taking what he describes as a lethal combination of drugs and alcohol and acknowledges that if he continues to act as he is, he will not see 50, (he is at the moment 47 years old). He has not however just sat back and done nothing about his present problems. As well as seeing, regularly, his general practitioner, he has attended the Drug and Alcohol Department of St George Hospital and has been assessed in their intensive pain management clinic. He has also voluntarily attended the Enough is Enough organisation and has been seeing a counsellor there Renee Jurd. Who is seeing him for anger management. 9 I should mention that these offences were committed whilst he was on bail for another matter, that is an aggravating circumstance. I note also that he pleaded guilty shortly before his trial was due to commence, I will take into account that plea of guilty. I will not quantify the discount as it is just one of a number of factors which has led to me imposing a different form of sentence from that I might otherwise have considered appropriate. 10 Mr Lenaghan-Britton has been assessed as being unsuitable for both community service order and periodic detention. I am clearly of the view that fulltime custody is not required in Mr Lenaghan-Britton's case. I am confirmed in that view by the fact that Crown did not ask me to send Mr Lenaghan-Britton to gaol. Let me explain why I have to come that view. 11 One of the many purposes of sentencing is to punish offenders. Mr Lenaghan-Britton has been punished severely as a result of him being bail refused. Not only did he spend 6 weeks in custody but he suffered the seizure which has led to the ongoing significant and indeed almost overwhelming problems which he now suffers. No further punishment is required that. Then allows me to focus on other aspects of sentencing, in particular the need to rehabilitate Mr Lenaghan-Britton. This is one of those cases where what I will be doing is encouraging Mr Lenaghan-Britton along the path he is already taking. 12 On each offence Mr Lenaghan-Britton is convicted. Pursuant to s9 of the Crime Sentencing Procedure Act, I order that in relation to each offence he enter into a good behaviour bond for a period of 3 years from today. During the term of that bond he is to comply with the following conditions: He is to be of good behaviour; He is to appear before the Court if called upon to do so at anytime; He is to inform the Registrar of this Court of any change in his residential address; The other conditions are as Miss Salsone has suggested in a written document which I will now read."He is to comply with all directions given by the Probation Service. He is to comply with all directions given by Dr Eileen McGrath regarding his ongoing treatment required to manage his various health problems. He is to comply with all directions given by the Drug and Alcohol Units at St George Hospital regarding his drug and alcohol intake as strategies to be employed to manage those health problems. He is to comply with all directions given by the Pain Management Units St George Hospital regarding his pain management and attend and participate in the Next Activate Pain Management Program when a place becomes available. He is to continue to undertake counselling for anger management as provided by the Enough is Enough organisation". ********** 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.