District Court New South Wales Medium Neutral Citation: R v Pattalis [2012] NSWDC 10 Hearing dates: 2 November 2012 Decision date: 02 November 2012 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of one year and a head sentence of 2 years Catchwords: CRIMINAL LAW - Sentence - Assault occasion actual bodily harm - Conditional offer to plead guilty Cases Cited: Blackwell v Regina [2011] NSWCCA 93; 208 A Crim 5 392 De Simoni v R (1981) 147 CLR 383 Category: Sentence Parties: The Crown Alex Costa Pattalis Representation: Mr G Corr - The Crown Mr P Lowe - The Offender Director of Public Prosecutions File Number(s): 2011/75570 SENTENCE 1HIS HONOUR: Alex Pattalis appears for sentence after having pleaded guilty to an offence of assault occasion actual bodily harm. The circumstances in which the plea was entered will require a little bit of examination later on in these remarks on sentence. 2The offence occurred when, for reasons which have not been identified, the offender decided to hit the victim, a man by the name of Christian Thompson, with a solid punch whilst they were both waiting out the front of a nightclub. No explanation has been offered as to why Mr Pattalis would have done that. I simply do not know whether he was out for a violent night, whether there was some level of provocation or what. What I do know is that nothing could possibly justify what Mr Pattalis did. It was, I repeat, a single but forceful punch which caused Mr Thompson to fall to the ground. Mr Pattalis left the vicinity soon afterwards and people came to assist Mr Thompson. He was taken to hospital after there were significant concerns raised about his condition by those who saw him after he had been punched. The injuries occasioned to Mr Thompson were significant. They are set out in a victim impact statement. Nor is it the case that he has made a full recovery. For example, he has physical deformities. He has pain when flying when the aircraft he is in descends to land and he has of course the obvious and almost inevitable emotional consequences that flow from being the victim of apparently random violence such as occurred to him. 3The offender was brought up by his father after his mother apparently abandoned the relationship she had with his father. He left school and began working as a labourer. He was quite a good rugby league player apparently and was employed in that occupation for a number of years but had to retire following an injury. He is now working part time with his sister who runs a fitness centre. He is apparently good at his job and a letter from his sister was tendered to me today. As well as that he looks after his grandmother following the death of his grandfather a short while ago. He has used alcohol in the past but not drugs. He told a Probation and Parole officer that he did not consider he had an alcohol problem despite bouts of heavy drinking, but did say that he reduced his drinking following his arrest to an occasional social drink. 4It appears that the most that can be said to explain why this offence occurred was that the offender was drunk at the time. That may have caused him to act out of character and may be a factor in assessing the prospects of the offender's rehabilitation but they do little to reduce the objective gravity of what the offender did. 5It appears that he did act out of character this evening, at least while sober. The Probation and Parole report says that Mr Pattalis presents as a young man of normal stable habits with a noteworthy sporting background whose commission of the offence appears to be out of character. The only qualification to that concerns the offender's prior criminal history which includes within it an offence of common assault which cannot have been the most serious common assault because he got a s 9 bond for it but nevertheless there is a criminal history which involves one offence of violence. Unfortunately no details could be obtained about this because he told the Probation and Parole officer that he had no memory of his offending behaviour, something he also claims as regards the present offence. 6I said I would speak about the circumstances in which the plea of guilty was entered. He was originally charged with a more serious offence, recklessly inflicting grievous bodily harm but offered in the Local Court to plead to assault occasioning actual bodily harm which is the offence for which he is to be sentenced today. However that offer was rejected by the Crown. 7Ordinarily that would mean that I would discount the sentence I would otherwise have imposed by twentyfive per cent, but the Crown tells me that the offer to plead to the less serious offence was a conditional one, it being conditional on the Crown accepting the factual basis for the sentence, which the Crown would not accept. It was in those circumstances that the plea was only entered after committal for trial to this Court. In those circumstances the discount will be less than the twenty-five percent. I will reduce the sentence I would otherwise have imposed by twenty per cent to reflect the utilitarian value of his plea. This is a matter that could have been dealt with in the Local Court, so I will take that into account. 8I note that there has been some delay. The offence was committed on 1 May 2010, and it was not for some time that the offender was arrested. Why that would be I do not know. The offence was captured by CCTV footage, and the nightclub had a practice of recording the driver's licence, or other forms of identification, of all its patrons. It cannot have been that difficult therefore to find Mr Pattalis, but he was not charged for some time. Following that there had been a further delay, before today, arising out of the circumstances, I have just explained. 9One of the important matters concerns the issue of the principle to be found in De Simoni v R (1981) 147 CLR 383. Although the offender was in company at the time he is not charged with any offence involving him being in company, and so I have ignored that aspect of the facts tendered today. More difficulty arises from the extent of the injuries, which were suffered by Mr Thompson. They were, as I have said, quite serious, however that does not mean that I will be taking into account a more serious offence. I will not be sentencing the offender as though he had committed the offence of recklessly inflicting grievous bodily harm. 10Following the fairly recent decision in Blackwell v Regina [2011] NSWCCA 93; 208 A Crim 5 392 the mental element in that offence, at the time this offence was committed, is an intention to inflict grievous bodily harm. I will not sentence the offender on the basis that he had such an intention. I will, however, take into account the full extent of the injuries suffered by Mr Thompson in assessing the appropriate sentence. 11The offender has expressed some remorse, and there are prospects for his rehabilitation. Given that there is no real explanation for the offence in the first place it is difficult to assess how good those prospects for rehabilitation are. The sentence that I am about to impose upon will have a significant effect upon him, and so one aspect in assessing the risk of re-offending is the personal deterrent aspect of the sentence I am shortly to announce. 12Of course the steps by a judge in assessing an appropriate sentence are, firstly, to consider the form of that sentence. Imprisonment is very much a sentence of last resort, but I am satisfied that no other sentence is appropriate. I will be soon talking about the need for general deterrence, that is a very important aspect of deciding that imprisonment is required. It is then my task to assess the length of that sentence, and, if the sentence is of an appropriate length, whether there are any alternatives to full time custody which are appropriate. 13Mr Lowe impresses upon me the outcome which would see his client receive a suspended sentence of imprisonment. In my view that would be insufficient to deter others who may be tempted to act in the way that Mr Pattalis has acted. You do not have to be a judge, or involved in the criminal law, to know that there is a growing problem of drunken violence. People are entitled to go out and have a drink without the risk of being punched by young men. People are entitled to walk along the street without being injured in a significant way, as Mr Thompson has been. It cannot, of course, also be overlooked that on occasions a single punch, such as Mr Pattalis inflicted on Mr Thompson on this occasion has led to death, and manslaughter charges. That is fairly common enough occurrence. For those reasons a significant sentence is required which contains within it a substantial component of general deterrence, and in my view a suspended sentence is insufficient to do what is required. 14The offender is therefore sentence to imprisonment. I set a nonparole period of one year, and a head sentence of two years, to date from today, 2 November 2012. The non-parole period will expire on 1 November 2013, on which day the offender is to be released to parole. 15LOWE: I'm obliged to ask would your consider a home detention assessment before that-- 16HIS HONOUR: No, for two reasons. One, I do not think that is appropriate, and secondly, eighteen months is the cut-off for home detention. So I am not going to do that. 17The special circumstances are the youth of the offender, and this being his first time in custody. ********** 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: 28 April 2014