District Court New South Wales Medium Neutral Citation: R v Rumbel [2012] NSWDC 139 Hearing dates: 14 June 2012 Decision date: 14 June 2012 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment. Taking into account matter on a Form 1, impose a non-parole period of 2 years and a head sentence of 3½ years Catchwords: CRIMINAL LAW - Sentence - Form 1 - Assault occasioning actual bodily harm - Significant injuries Cases Cited: Blackwell v R [2011] NSWCCA 93 De Simoni v The Queen (1981) 147 CLR 383 Category: Sentence Parties: The Crown Derek Leonard RUMBEL Representation: Mr L Carr - The Crown Mr R Cavanagh - The offender Director of Public Prosecutions O'Brien WInter Partners - The offender File Number(s): 2011/26031 SENTENCE 1HIS HONOUR: On 4 November 2010 the offender Derek Rumbel was mourning the loss of his son, a young child who had died in a house fire precisely one year before. On the same day the victim of this matter, Mr Sean Roswell, was celebrating the birth of a new daughter to a relation of his. Unfortunately both groups of people, those mourning the tragedy and those celebrating the happy event, chose to do so by consuming excessive quantities of alcohol. 2The victim and some friends and relations of his, visited the home of relations of the offender after they had all been drinking. Once the two groups got together, things were amicable for a number of hours and everyone continued to drink even more. For reasons which are unclear however, an argument broke out between Mr Rumbel and Sean Roswell. No-one knows what started it but it resulted in the offender head butting the victim to the face, causing his nose to bleed. That is a matter appearing on the Form 1 to be taken into account when I sentence the offender for the assault occasioning actual bodily harm I will now describe. 3The two men were asked to leave. They did so but the argument continued. The offender was the aggressor. He said "Come on". The victim's nephew Jamie Roswell tried to settle things down. He walked between the two men and tried to push them back saying "Stop being an idiot". The offender was not having any of that. He said "I'm going to smash you, you cunt". Eventually the matter turned physical again with the offender delivering five to eight closed fist punches to the victim's head. One of those connected with his eye and he fell face first to the ground, striking his head on the kerbing as he went down. He appeared to be unconscious. He was not moving. He was not responding but the offender had not had enough. He continued to throw blows to the victim as he lay on the ground. Mr Jamie Roswell then intervened again, pushing the offender away. Not satisfied with what he had done already, the offender said to Jamie Roswell "Come on, do you want to have a go". After Mr Roswell sensibly told the offender to wake up, eventually the offender walked off. 4No-one realised how significantly Sean Roswell had been injured at the time. He was able to get up and although he was shaking and unsteady, he could speak and stumble home. The next morning however he could not be roused. He was transported by ambulance to Maitland Hospital and then airlifted to John Hunter Hospital. Not surprisingly, investigations revealed that he had suffered a large acute subdural haematoma as well as fractures to his face and eye socket. He remained in intensive care for some time and has suffered a number of significant injuries. He will bear the lifelong consequences of the offender's violent actions. 5A medical certificate tendered today from a doctor said that: "I am of the opinion that the injury was severe and nearly fatal. The prognosis for return to normal function is poor. It is my understanding that the patient remains quite disabled and dependent on others for care." 6A victim impact statement was also tendered. It bears out the expectations of the doctor. I will read it in full because it is important that everyone here understand exactly what has happened to Mr Sean Roswell because of the violence inflicted upon him by the offender. He says: "Since the assault I have been in and out of hospital for 12 months and there is no end in sight. I am still going in and out of hospital. I have had three plates put in my head and then removed because of infection. At the moment I have no plates and I am supposed to wear a helmet to protect my brain 24 hours a day. People stare and ask questions all the time so I hardly leave the house. I have blood clots in my legs and I have to take blood thinners. Now I can't get another plate put in because an operation would be too dangerous and I could bleed to death. I now have epilepsy. 43 years old and now I'm an epileptic and have to take medication every day. My room looks like a pharmacy with all my medications. I have a house that I can't live in because I'm afraid of being on my own. I feel like if anything happened while I was alone I wouldn't be able to protect myself. I stay with my brother because I feel safer there. He does night shift and when he's away I stay awake all night. I sleep mostly during the day when I feel safer. I can't enjoy time with my daughter because I can't do the things I used to do with her. I can't even kick a football, take the boat out, swim with her. My family have got to do these things with her and I can't even go. What's the use of going when I can't do anything. I can't be in the sun and enjoy summer. My life will never be the same because I can't do any of the things I used to enjoy. I have mood swings that I never used to have. I can go from happy to angry in a minute, from one extreme to the other. I get upset a lot especially when it comes to the loss of time with my daughter." 7Of course Mr Rumbel did not intend those tragic consequences but they resulted directly from his actions. To his credit, once the offender realised that he had caused those injuries, he made admissions to the police as to what he had done and has co-operated thereafter with the authorities. Initially he pleaded guilty to an offence of recklessly inflicting grievous bodily harm but following the decision of the Court of Criminal Appeal in Blackwell he withdrew that plea of guilty, (not surprisingly given that decision), and has now entered a plea of guilty to assault occasioning actual bodily harm. Although that plea was entered late in procedural terms it is no fault of Mr Rumbel's that that was the case. Because of his early plea of guilty and the attitude that he has displayed to the prosecution in this matter, with its resulting utilitarian benefit, the sentence I will impose upon him is 25 percent less than it would otherwise have been. 8Mr Rumbel is now 27 years of age. His upbringing was quite poor in the sense that he was exposed to violence as a young child. His stepfather perpetrated domestic violence upon his mother and, when the offender would intervene in an effort to protect his mother, he too was assaulted. The relationship that the offender had with his stepfather was characterised by abuse and Mr Rumbel was blamed for minor misbehaviours. He was regularly beaten with a wooden pipe that actually was given a name. The psychologist says that, given a history of ambivalent and disruptive relationships, it is not surprising his attachment to significant others in his life has been aggressive and volatile. That is borne out by the offender's criminal history. Although he is in a relationship and has had children to his partner, that has been characterised by domestic violence inflicted by the offender upon his partner. He has many prior convictions for assaults and indeed, at the time of this offence, was on three bonds to be of good behaviour, one of which was for assault occasioning actual bodily harm. His criminal history indicates clearly a history of violence and, as the psychologist reports, an attitude of using violence as a means of solving social problems. 9The offender has spent some time in custody, 287 days. The question becomes whether it is necessary to return Mr Rumbel to custody. It is clear that the offender drinks to excess. He said that after his son died in the house fire he turned to the bottle and drank excessively for some time. He has moderated his alcohol consumption of more recent times but, in view of his criminal history and in view of its relationship with alcohol, it cannot be said that the offender is unlikely to commit further offences in the future. 10The offender, consistent with his intention that the victim not suffer injuries as serious as the ones he did suffer, expressed his remorse. He accepts his responsibility for what he has done. He did not intend Mr Roswell to suffer as he has and clearly acknowledges that it was his actions which have led to that awful outcome. 11These significant injuries would ordinarily, in the past, have resulted in the offender facing a much more serious charge, indeed the sort of charge that he was originally charged with. It is no breach of the rule in De Simoni v The Queen (1981) 147 CLR 383 to take into account harm which would amount to grievous bodily harm, in the circumstances of this case, following the decision of the Court of Criminal Appeal in Blackwell v R [2011] NSWCCA 93 because I will not be sentencing Mr Rumbel on the basis that he intended in any way to cause that grievous bodily harm. I am therefore able to take into account the awful injuries suffered by Mr Roswell in determining the appropriate penalty. I am also able to take into account, and I do, the level of violence. This was not just a single punch but a sustained series of blows which continued after Mr Roswell was lying helpless on the ground. I repeat, the offender was on a bond to be of good behaviour for this very offence at the time he committed this offence and so I have no other option but to return Mr Rumbel to custody. The period he has thus far spent in gaol is insufficient to reflect the objective gravity of what he has done. 12I will find special circumstances in the offender's favour. It is in his interests as well as the community's that he be given extra assistance upon his release from custody to deal with his problems of alcohol consumption which have led directly to this offence. 13The offender is sentenced to imprisonment. I set a non parole period of two years and a head sentence of three and a half years to date from 1 September 2011. I take into account the Form 1 matter of course. The offender is thus eligible to be released to parole on 31 August 2013. ********** 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: 04 September 2012