District Court New South Wales Medium Neutral Citation: R v BAXTER [2011] NSWDC 180 Hearing dates: 11th August 2011 Decision date: 11 August 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment Catchwords: CRIMINAL LAW - Sentence - Recklessly cause grievous bodily harm - Unprovoked assault - Repeat offender Category: Sentence Parties: The Crown Darryl Baxter Representation: Director of Public Prosecutions Legal Aid Commission File Number(s): 2009/183858 Judgment 1HIS HONOUR: Darryl Baxter is to be sentenced for an offence of recklessly causing grievous bodily harm. He is forty-eight years old now and has spent most of his adult life in gaol. He gave evidence before me in a disarmingly frank way. He tells me that he is doing his time in custody now in a significantly different manner in the way in which he has previously served periods of imprisonment. He has grown up and no longer blames others for his predicament. He recognises that others have suffered because of his ongoing criminal offending, not only the victim in this matter who I will speak about in a little while, but also his sister, who is now seriously unwell and who has a son with autism with whom the offender gets on very well. 2I have heard evidence today which suggests the desirability of the offender being released to care for his sister and his nephew. But my task is to look beyond the offender's personal predicament and also that of his sister and his nephew. My task is to look to the protection of the community generally and for that reason it is necessary that the offender must spend a significant further period of time in custody before his eventual release. 3The offender had been released from custody in May 2009. Two months later he went to the Wentworth Park greyhound track with his then partner and her daughter. His partner was an alcoholic and proceeded to drink heavily that evening. Also at the greyhound track was a Benjamin Barry, he was celebrating his bucks night and was dressed in a distinctive bright jacket for the occasion. He was allowed to present one of the prizes. Things went well until at about 10 o'clock the offender's partner and her daughter were involved in an incident whereby one of them tipped some drinks on some members of the people helping Mr Barry celebrate his buck's night. This happened just after the last race finished. The patrons were then asked to leave. Mr Barry and another of his party were still inside the premises when they saw the two women being escorted from the premises by police. Mr Barry saw this happening and he turned to his friend and said, "I'm not surprised to see them get thrown out". The offender did not take this comment well. He came quickly towards Mr Barry and punched him once in his face to his cheek. Mr Barry had not seen or spoken to the offender before the offender punched him. The offender did not square up to Mr Barry to give him a chance to defend himself but rushed over and immediately hit him forcefully to his face. The person that Mr Barry was standing with said that the contact of the offender's fist to Mr Barry's face made a crunching sound. When Mr Barry stood up there were immediate and obvious signs of injury. 4The offender was arrested, falsely telling the police that what had happened was self-defence and that Mr Barry had taken a swing at him first. He also falsely described what he had done as just a "tap". 5Mr Barry was taken to hospital. He remained there for a couple of days and has undergone surgery to do what can be done to correct his injuries. He was shown to have a significant fracture of his left cheekbone and also a fracture of his jaw. 6I mentioned before that Mr Barry was on his buck's night. His wedding was two weeks later. He was unable to eat solid food there, describing his wedding night meal as mashed potato and gravied steak. He ate nothing much more than soup and Weet-Bix for six weeks after this incident and has spent over 100 hours in hospital as a result of the assault. He is left with two disabilities too, one psychological and one physical. Psychologically, he says that he rarely stays out at public events and places much past 11 o'clock these days, as he is afraid of being the victim of a similar senseless and unprovoked attack again. He points out in the victim impact statement that he was in a large group in a crowded venue with security and police present. That did not stop the offender from hitting him without warning and without regard for the consequences. 7Physically he is left with a disfigurement to his face in that his cheekbone on one side is lower than the cheekbone on the other side. He says, "When I am tired and the muscles in my face fatigue, it is quite noticeable that my face droops on one side". The offender described what he had done as two seconds of madness. That is true but it has led to lifelong consequences for Mr Barry. 8The offender was born in Sydney. Both his parents were alcoholics and they fought on a regular basis. He lived an unhappy childhood in what he said was an angry house. At school he truanted and behaved badly, leaving at a very young age, indeed in year 7. His parents did not care for him much; he was largely left to his own devices. In those circumstances it is not surprising to find his criminal history commencing at a very early age. It is a substantial criminal history with offences of violence upon it. Mr Baxter said that almost all the offences of violence occurred while he was in custody. His sister, who gave evidence before me today, did what she could for a while but the offender's constant criminal activities, the fact that she had her own children to care for, and the fact that one of them requires a significant level of care due to his autism, led to her eventually pushing the offender away. No one, least of all the offender, blames her for that. In recent times, however, as the offender has matured, they have become close again. 9The offender broke up from his partner, the woman whose honour he was perhaps trying to defend and moved in with his sister in the Central Coast. He gets on well with her autistic son Blake. He requires a significant level of care and is unable to live by himself. They have not told Blake that the offender is in custody, preferring to tell him that he is working up in Queensland. The offender rings him every day and the offender's sister said that that is the highlight of Blake's life. 10I have got no doubt, having heard the offender and having read a report from Ms Laycock an alcohol and other drug counsellor at the MRRC, that the offender now is a different person to the way he was at the time he committed this offence. His sister said that previously he had a chip on his shoulder, which has now been removed and the offender very belatedly accepts that his problems are all of his own making. At the time of this offence the offender was not taking methadone, he stopped taking methadone upon his release from custody about two months before. He said that he was generally an angry person at the time and that the combination of not taking methadone and his high level of anger is what led to him committing this offence. 11However, since going into custody again this time he has been able to deal with his anger problems and has finally realised that he has virtually wasted his life by spending so much of it in custody. In contrast to his earlier periods of custody he has not been dealt with for any internal disciplinary matter and is now a sweeper, a position of some responsibility within the gaol. Mr Baxter finally has a genuine desire to put his life of crime behind him. Despite that I cannot say that his prospects of rehabilitation are good, but in one sense that is not his fault. Much will depend on how he responds upon his release from custody to the supervision which he clearly needs. In this regard I note that he was released from gaol in May 2009 without any supervision at all. It is important that the offender is closely monitored and closely assisted with everyday living skills upon his release from custody this time. For that reason I make a finding of special circumstances in the offender's favour. Offences such as this are clearly serious. They represent a significant breach of the peace. The harm that offences such as this cause extend beyond the harm that Mr Barry suffered. Everyone in the community suffers when violent acts such as these are committed in public places. We all feel we should be able to go out and have a good time at the greyhound track without being subject to unprovoked and cowardly violence at the hands of an angry offender. 12One way of determining how serious this offence is is to look at the circumstance that it carries with it a standard non-parole period of four years. That of course is not of direct application because of the offender's plea of guilty, but it remains as an important guidepost to the sentence that I should impose. The fact that it has a standard non-parole period requires that I make a finding about the objective gravity of the offence, which I would not need to make in the absence of a standard non-parole period. I find that the offence is in the middle of the range of objective seriousness. This was as I have said, an unprovoked and cowardly attack upon a defenceless man who has suffered significant injuries. On the other hand it was a single punch with no weapon or planning involved. The middle of the range is just that, a range, it is not a point and I do find for those reasons that the offence is in the middle of the range of objective seriousness. 13I mentioned the plea of guilty. It came late. The offender did not even turn up on the day his trial was due to commence earlier this year and a bench warrant had to be issued for his arrest. His failure to attend is explained by the circumstance that he just could not face going back to gaol. Given the state he was in, living with his sister who is significantly unwell, I can almost understand why the offender would take that position. It was not a wise thing to do, however. 14The late plea of guilty nevertheless had a utilitarian benefit to the criminal justice system and so I will reduce the sentence I would otherwise impose by ten per cent. The plea of guilty is also evidence of remorse. The offender said that he was sorry and wished that Mr Barry was here in court today so that he could express his remorse to him personally. The offender also recognises that others are going to suffer because of the need for me to impose a significant period of imprisonment upon him, people such as his sister and his nephew. 15It is terribly sad that the offender has spent most of his adult life in gaol but what is a judge to do when an offender repeatedly offends and ends up causing significant harm to an innocent member of the community, as the offender did in this case? My duties extend beyond looking merely at the offender and his family. My duties include a consideration of the community as a whole. People such as Mr Baxter, who described himself as on a hair trigger, need to understand that if they are going to lose their tempers and commit serious offences such as this, they will go to gaol for a significant period of time, even if their sisters are seriously unwell and if their nephews benefit from them being around. 16I will impose a sentence of imprisonment upon Mr Baxter which is the lowest I can possibly impose. Although Mr Cruikshank did not rely on the circumstances involving the offender's family as being exceptional, they are part of the general mix of subjective factors which I will take into account. In particular I will take into account that the offender accurately blames himself for his sister and nephew being deprived of comfort and care at a time when they most need it. For that reason he will do his time in custody much harder than would otherwise be the case. 17The offender is sentenced to imprisonment. I set a non-parole period of twenty-one months to date from 20 April 2011 and will expire on 19 January 2013, on which day the offender is to be released to parole. I set a head sentence of 42 months. Because the length of the sentence exceeds three years, it is not for me to set conditions of parole. It is my firm recommendation that upon the offender's release to parole, he is very closely supervised and provided with as much assistance as is possible in order to assist him to overcome his institutionalisation. ********** 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. Decision last updated: 24 November 2011