R v MAEA [2011] NSWDC 215

District Court New South Wales

Medium Neutral Citation: R v MAEA [2011] NSWDC 215 Hearing dates: 14 December 2011 Decision date: 14 December 2011 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of an overall sentence of a non parole period of 3 years and 3 months and a head sentence of 5 years and 3 months. Catchwords: CRIMINAL LAW - Sentence - Affray - Assault occasioning actual bodily harm in company - Reckless wounding in company - Assault occasioning actual bodily harm on a police officer - Reckless damage to property - Periods of psychosis - Serious mood disturbance Category: Sentence Parties: Crown Rodney Maea Representation: Mr B Hughes SC- The Crown Director of Public Prosecutions Legal Aid Commission File Number(s): 2010/313118

SENTENCE 1HIS HONOUR: On 20 September 2010 Rodney Maea and his brother Vienna went to a Centrelink office in Merrylands. They were seeking assistance from Centrelink. Centrelink is an important organisation which provides benefits to those members of the public who need them. The two brothers spoke to an officer about an application for a disability pension. One of the officers started to interview this offender about his application. She told him that he needed to provide additional identification. The offender's brother, Vienna, became upset at this and began yelling out, swearing and generally causing a significant disturbance. There were a large number of members of the public in the office at the time as well as staff. The officer told the brothers that she would go and get her team leader. She left her desk. 2At the same time an interpreter attached to Centrelink, by the name of Ali Parsa, approached the two brothers. He asked them to moderate their language. This was an entirely reasonable request given the circumstances. There is no suggestion that Mr Parsa acted aggressively, but what did follow was the two brothers acting violently and continuing to act violently with the result that four separate people were injured. 3Mr Parsa was the first victim. He said "This is a lady, please, she is a woman, stop it" . For some reason this caused both offenders to run towards him and punch him in the face and head. The blows were so forceful that he fell to the ground. The offenders did not stop, they continued to punch and kick him in the face, head and body. He tried to get away but they stopped him so that they could inflict more violence upon him. Eventually they stopped, leaving Mr Parsa bleeding from his nose and his head. He was taken to Auburn Hospital. He suffered cuts and abrasions to his face and was allowed to leave six hours later. 4After dealing with Mr Parsa in that way they turned their attention to Mr Alfa Touray. He was a security guard who heard Mr Parsa calling out for help and saw what was occurring. Sensibly he said "Leave this man or you will kill him". He tried to rescue Mr Parsa, but this offender and his brother turned their attentions to Mr Touray and began punching him. He too fell to the ground and he too was struck while he was relatively helpless lying there. He was taken to hospital and was allowed to leave after four hours, the medical records show that he sustained a fracture of his nose, abrasions to his lip, a haematoma and tenderness to his left eye, cheekbone and over the ridge of his nose. For a while he had blurring of rhe vision in his left eye but that repaired itself. Mr Touray has provided a victim impact statement. It sets out his understanding of the consequences for him of the attack. Having read the victim impact statement I can say that the injuries he describes are entirely the sort of thing that I would expect from an assault of this nature. They were of course entirely foreseeable as well. 5I now turn to the most serious of the offences committed by this offender and his brother. Having bashed Mr Parsa and Mr Touray the offender turned his attention to Mr Cahill, another Centrelink employee, after he bravely intervened. He yelled out to them "Stop, police are coming". The offender's brother said "Let's get him" and both of them did. The offender's brother armed himself with an umbrella and swung it at Mr Cahill's head, hitting him on the left side. He continued hitting Mr Cahill on his head. Mr Cahill put his arm up to protect himself so that he was hit on his forearm as well. The umbrella broke, but the offender's brother did not desist, instead he used the sharpened remains of what he was holding to stab Mr Cahill. Whilst this was going on this offender punched Mr Cahill a number of times. He too fell to the ground and once more the offenders continued to attack this man by kicking him a number of times. He kept screaming out "Police are coming, why don't you leave?" and eventually they did so. Mr Cahill was also taken to hospital, he received a number of injuries including a wound injury. Photographs were tendered which showed the physical consequences for Mr Cahill of being attacked in that way. He had a penetrating injury to his forearm which required suturing, he had a laceration to his scalp which also required suturing, he had bruises and other lacerations. Once more these are the sort of physical consequences that one could immediately expect from attack of the kind to which Mr Cahill was subject. 6Not surprisingly police attended and began to search for the two offenders. Eventually they found them at Merrylands railway station. There was more violence when the police attempted to arrest the two offenders. Much of it is not to be sheeted home to this offender, his brother Vienna assaulted some officers independently of this offender's actions, but they both did assault Constable Andrew Dryburgh. When the two offenders were told that they were under arrest this offender lunged at the police officer in an aggressive manner and punched him to the head using both of his closed fists. The offender's brother took over after a while causing further injuries. Eventually the offenders were subdued with capsicum spray and they were arrested. Officer Dryburgh's injuries seemed to have been fortunately relatively superficial. 7When I sentence the offender for the offence involving Mr Cahill he asked that I take into account on a Form 1 an offence of reckless damage to property. Why this offence needs to be taken into account is beyond me, it relates to some damage to the premises at the Centrelink office. 8The offender Rodney Maea now stands for sentence for five offences, the first is an affray involving Mr Parsa, Mr Touray and Mr Cahill, then there are two offences of assault occasion actual bodily harm in company, one involving Mr Parsa and one involving Mr Touray. Then there is the most serious offence of reckless wounding in company involving Mr Cahill, that carries both a maximum penalty of ten years imprisonment with a standard non-parole period of four years. Finally there is the offence of assault occasion actual bodily harm on a police officer on duty with a maximum penalty of seven years and a standard non-parole period of three years. I have taken into account the maximum penalties for each offence and the standard non-parole periods in the case of those offences carrying standard non-parole periods. My reason for not imposing the standard non-parole periods for those matters are to be found in these remarks on sentence. 9The offender has a criminal history, he has served time in gaol before for an offence of robbery in company. He also has an offence of common assault on his criminal history and assault occasioning actual bodily harm as well. In fact he was on a bond for the common assault offence at the time he committed these offences. 10The offender was born in Tonga. He came to Australia at the age of eleven, he had an upbringing which he described to a psychiatrist who interviewed him as a "nice" one and he was not subject to severe violence or abuse at home. His mother however died when he was quite young and he was later expelled from school. He has had some work but lost it, he told the psychiatrist, because he had difficulties in attending. 11I expect that those difficulties are related to the most important matter concerning this offender. He is significantly mentally ill. As with all mental illness it is difficult to be precise as to the precise form of his mental illness but it is a chronic one characterised by periods of psychosis and serious mood disturbance resulting in disturbed behaviour and disability. Indeed when he was first taken into custody and interviewed by a psychiatrist he was found to be unfit to stand trial displaying quite inappropriate behaviour, laughing at inappropriate times, and becoming irritable to the extent that the psychiatrist felt a sense of personal threat. At times he appeared preoccupied, perplexed and fatuous, as well as suspicious and guarded at other times. 12At the time of these offenders he was apparently receiving intramuscular injections to deal with his psychosis but he was also using drugs. I will get back to the significance of that in a little while, but it is important to note that since going into custody, since having his condition managed more closely and since he has been unable to take drugs, his condition has improved significantly. He was found fit to be tried in August this year and pleas of guilty were entered to these offences relatively soon afterwards. His brother, who remains to be sentenced, also suffers from a mental illness. 13The consequences for a sentencing judge having before him or her an offender suffering from mental illness are well known. I will take into account that the offender's time in custody will be harder than it would have been had he not suffered from a mental illness. Also, in assessing his prospects of rehabilitation, they are of course closely related to the prospects of the offender being adequately treated upon his release from custody. As Mr Reetov said, his prospects of rehabilitation are guarded. I would not want in any way anyone to think that I was extending the sentence I will impose upon the offender because of this circumstance but it does remain the case that no submission could be made that the offender has good prospects of rehabilitation. 14One other matter, and perhaps one of the most important matters which I have to look at in determining the relationship between the offender's mental illness and the sentence that I will ultimately impose, concerns the question of his moral culpability. At the time that he committed these offences he was not hearing voices and he was getting his anti-psychotic medication, but Dr Martin does see a link between the offender's behaviour in the Centrelink office and his mental illness, I quote what Dr Martin says: "From his own account it would appear that his mental state was disturbed at the time of the offending to the extent that he was experiencing some manic symptoms with excessive energy, lack of sleep, feelings of vulnerability and increased libido which is probably a function of having a background of schizo-effective disorder as well as significant and damaging use of cannabis and alcohol. A person who is elevated with serious mood disturbance because of a psychotic disorder in combination with drugs is highly likely to exercise poor judgment and to become excessively angry when confronted or in stressful situations." 15It is to be immediately noted that that opinion related to a person with a serious mood disorder who takes drugs and one of the problems in this case is that it seems to have been a combination of those two factors which led to the offender presenting himself to Centrelink in a highly aggressive way after a perfectly reasonable request was made by the first officer who spoke to the offender and his brother. Of course taking drugs is in almost all cases a voluntary activity and is illegal as well, that combination of circumstance in my view reduces the benefit that the offender can expect to obtain. When I consider his moral culpability, it is morally culpable to take illegal drugs whether or not the drug taker has a mental illness. On the other hand, as I suggested to Mr Reetov in argument, the offender's decision to take drugs has to be looked at in the light of the undoubted circumstance that he was mentally ill at the time. There is thus the somewhat convoluted and complicated interplay of factors when I come to determine the offender's moral culpability. I do find that his moral culpability is reduced because of the combination of mental illness and drug taking. Had the offender not suffered from a mental illness at the time of these offences the sentences that I would have imposed upon him would have been much longer than those I will soon announce. 16These offences were of course spontaneous, they did not go into the Centrelink office intending to bash anyone but they responded to very reasonable requests in a very aggressive way, and once they started they did not stop. It appears that they only stopped assaulting people when no-one else approached them and when they believed the police were coming. In one sense the offences were all part of the one ongoing act of criminality but it has to be remembered that four different people were injured by the violent acts of the offender, four people have suffered harm and so it would be entirely inappropriate in my view for the offender not to receive extra punishment relating to the four separate victims. On the other hand the three offences involving Mr Parsa, Mr Touray and Mr Cahill are all effectively the same offence as the affray. The offender will not receive any extra punishment because of the first count affray. The criminality involved in attacking Mr Parsa, Mr Touray and Mr Cahill covers the criminality of the affray matter. 17No-one has suggested these offences were other than serious, they clearly were. Each of the victims was performing a significant public service in difficult circumstances. They are entitled to look to the courts to protect them and to respond in an appropriate way when they have been violently assaulted. The offender must spend a significant further time in custody in order to reflect the objective gravity of what he did, but I repeat, had he not suffered from the mental illness he undoubtedly suffers from his sentences would have been much longer. 18I will make a finding of special circumstance in the offender's behaviour. As is clearly obvious he is going to need close supervision upon his release from custody in order to reduce the risk of him further offending. Dr Martin for example recommends that he only be released under a community treatment order, a recommendation I wholeheartedly endorse. 19I should indicate that I have discounted the sentences I would otherwise have imposed by twenty-five per cent. Pleas were only entered after arraignment in this court but, as I mentioned before, there were delays arising from the issues concerning the offender's fitness. The Crown quite properly suggested that I would discount the sentences by twenty-five per cent and so that is what I will do. 20I impose sentences as follows: 21On count 6 on the indictment the offender is sentenced to imprisonment. Because it carries a standard non-parole period I am not allowed to impose a fixed term, I therefore impose a non-parole of nine months with a head sentence of twelve months to date from 20 September 2010. 22On count 2 on the indictment I set a fixed term of eighteen months to date from 20 December 2010. On count 3 on the indictment I set a fixed term of imprisonment of eighteen months to date from 20 June 2011. On count 4 on the indictment I set a non-parole period of two years to date from 20 December 2011 with a head sentence of four years. On count 1 on the indictment I set a fixed term of eighteen months to date from 20 September 2010. The result is an overall sentence consisting of a non-parole period of three years and three months with a head sentence of five years and three months. I have of course taken into account the matter on the Form 1 when imposing sentence on count 4.