R v West [2012] NSWDC 257

District Court New South Wales

Medium Neutral Citation: R v West [2012] NSWDC 257 Hearing dates: 22 November 2012 Decision date: 22 November 2012 Before: Berman SCDCJ Decision: Sentenced to imprisonment consisting of a non-parole period of 2 years and 3 months and a head sentence 4½ years Catchwords: CRIMINAL LAW - Sentence - Recklessly inflict grievous bodily harm - drunken violence Category: Sentence Parties: The Crown Christopher Gary West Representation: Mr P Barnett SC - Crown Mr M Brady - Offender Director of Public Prosecutions Vanguard Lawyers - Offender File Number(s): 2011/355991

Sentence 1HIS HONOUR: Today I have before me yet another offence of drunken violence being dealt with in the Newcastle District Court. Time without number, judges sitting in Newcastle and elsewhere have referred to the harm that is caused to individuals and society as a result of drunken violence. We have a rather startling example in the present case. 2Christopher West has pleaded guilty to an offence of recklessly inflicting grievous bodily harm. He did this when he was drunk. The harm that has been occasioned to the victim, Mr Holborow, is enormous. And the harm that flows through to society generally, the people that witnessed the drunken violence and the people that learn about it indirectly, is also significant. 3All of us feel more apprehensive when we visit licensed premises because of offences of this kind. In truth, we should be able to go out and have a few drinks without worrying that someone will hit us and someone will cause harm to us as has occurred in the present case. 4The offender finished work early on 1 November last year because it was Melbourne Cup Day. He went to the Gladstone Hotel where he had a few drinks. Also in that hotel was a man by the name of Grant Holborow. Mr Holborow regarded the offender as someone who had acted inappropriately towards his daughter. He stared at Mr West on occasions. Mr West did not know who Mr Holborow was or why he was being stared at. 5It is clear that Mr Holborow, who was also drinking, got angry. He was drinking with a man by the name of Brad Webster who said that at some point in the afternoon Mr Holborow's mood changed: "He saw a guy who I didn't know and said something like 'That bloke diddled with my daughter'. It is obvious that Mr Holborow was angry at what the offender had previously done. 6What happened as the offender left the hotel was captured on closed-circuit television footage. As he walked past Mr Holborow to go outside, Mr Holborow, after a short moment, followed him, punching the air as he did so. It is obvious that Mr Holborow was angry. Mr West was outside using his mobile phone when Mr Holborow approached him. Most of what thereafter happened is captured on the same CCTV footage. The events happened outside a window and there is a reasonably clear view. 7The initial confrontation is slightly out of camera. The offender says that there was a verbal altercation as Mr Holborow identified himself and the offender asked whether Mr Holborow was going to hit him. The offender says that in response Mr Holborow raised his fists. 8Thereafter there was a great deal of violence, all of it coming from the offender. He struck Mr Holborow once to his chin. Mr Holborow fell backwards until he was on the ground in a relatively defenceless position. The offender just lived across the road and could easily have left at this time but he did not. He claims that he hit Mr Holborow again whilst he was on the ground because he was acting in self-defence. I reject that. 9There was no need at all for Mr West to continue punching Mr Holborow while he was on the ground. He could, as I have said, easily have left and gone home but he did not. He punched Mr Holborow repeatedly. I have seen on the DVD what occurred. Something in the order of eight times was Mr Holborow struck by this fit young man as he lay relatively defenceless on the ground. 10Eventually the offender stopped. Mr Holborow was not moving. Police and ambulance were called. Mr Holborow was taken to hospital and the offender was arrested. When he was arrested he told police a few lies. He admitted that he was responsible for the violence but denied the extent of it. 11When Mr Holborow got to hospital he was, of course, examined. To say that his injuries were significant is an understatement. He had fractures of his left and right zygomatic arch and his left and right zygoma; his nose was broken; he had fractures of his mid-face and maxilla; he had left and right orbital floor fractures; his jaw was broken and his left eyeball was ruptured. Extensive treatment was required. 12He required a tracheostomy. His left eye was completely removed, the result of course that he is entirely blind in that eye. Surgery was required. There were approximately 15 plates inserted into his face. He remained in hospital for about two weeks. 13As the Crown accurately pointed out, in determining the objective gravity of an offence of violence the relevant factors include the extent of the violence inflicted and the harm to the victim. Both of those in this case were highly significant. I have seen the extent of the violence and I have read the extent of the injuries. This was objectively a very serious offence indeed. 14I note that the maximum penalty for this offence is ten years imprisonment and it carries a standard non-parole period of four years. I have taken into account both of those in determining the appropriate penalty to impose upon Mr West. My reasons for not imposing the standard non-parole period appear in these remarks on sentence. 15In contrast to many offenders who appear in court for sentence, Mr West has little in his background which would explain this offending. He is a man, apart from some aspects I will mention in a little while, of otherwise good character. He is a good worker, he is respected by his employer and he is respected in the wider community. References were tendered in his case and those who know him regard him highly. 16The offender is now twenty-three, he was twenty-two at the time of the offence. His parents separated when he was very young but he remains close to his mother and lives with his father with whom he also has a good relationship. 17He got his HSC and then commenced training as a fitness instructor, doing various levels of certificates before he worked as a gym instructor at a number of health studios. He then moved to work as a scaffolder and it was there that he was working at the time of this offence. A reference from his employer was, as I mentioned, tendered and it speaks highly of him. 18He is single, he is not in a relationship and he has no children. 19He pleaded guilty to this offence at a late stage. It is conceded that the utilitarian benefit should result in a discount on the sentence that would otherwise have been imposed of about 10 per cent. Although he could have pleaded guilty to this offence when arraigned for the more serious offence, he did not do so. When this matter was raised in the course of submissions, from the dock the offender said that he did not know that that was an alternative. That does not affect the utilitarian benefit from a plea of guilty but is a matter that I will take into account in determining the remorsefulness or otherwise of the offender. It is to that issue that I will now turn. 20He remained at the hotel until police arrived. He exhibited signs of distress. He believed at one stage that he may even have killed Mr Holborow but did not try to run away at that stage. He did not, however, tell the police the entire truth about the extent of the violence he had inflicted upon Mr Holborow and his evidence today is of some concern. 21Whilst he clearly did not intend Mr Holborow to suffer the awful harm that he has suffered and is remorseful to that extent, it is the case that he seems to blame Mr Holborow to a fairly significant extent for what eventuated. He says that he struck Mr Holborow on the ground repeatedly because he was afraid that Mr Holborow would get up and hit him. He says that he was acting in self-defence. I reject that. I am satisfied and satisfied beyond reasonable doubt that he was not acting in self-defence nor did he believe himself to be acting in self-defence. No person, intoxicated or otherwise, could have acted in the way I saw on that video and caused the harm that was occasioned to Mr Holborow believing that that was necessary in self-defence. 22The CCTV footage was chilling and disturbing. It is disturbing to see a man lying relatively defenceless on the ground, being punched repeatedly by a fit young man who is standing over him. It was a sustained attack and led to injuries which are exactly what would be expected to have occurred from a sustained attack of that nature. The offender was attacking Mr Holborow's face and the injuries that Mr Holborow thus suffered were entirely foreseeable. 23I accept, of course, that trouble came to the offender, not the other way around. As I explained in outlining what occurred on 1 November last year, it was Mr Holborow who approached the offender, not the other way around, but it was the offender who resorted to violence, not Mr Holborow. If there was an invitation to fight, it was an initiation that the offender accepted rather than walk away. And more importantly, it was the offender who did not stop once Mr Holborow had fallen to the ground. 24So, although of course it is an important matter that it was Mr Holborow who approached the offender rather than the other way around, and that Mr Holborow was angry at the time, it must be remembered that the offender responded with violence at a very high level. 25The offender had been drinking and, indeed, when police took him back to the police station he fell asleep in the dock and an investigating officer allowed him to recover from the effects of alcohol. 26The offender says to Dr Bench, a psychiatrist who interviewed him for the purposes of these proceedings, that he is a lightweight when it comes to consuming alcohol. That is not a description that I would give to the drinking history that he gave to Dr Bench. The offender has told him that he had experienced alcoholic blackouts and that if he drank fifteen standard drinks or more he may have an alcoholic blackout. That level of alcohol consumption is not consistent with his description of being a lightweight when it comes to consuming alcohol. 27Of course, the circumstance that alcohol has been consumed when an offence is committed is sometimes called in by an offender as suggesting that it is a mitigating matter. Only yesterday the Court of Criminal Appeal re-examined this issue. That decision confirmed that in narrow circumstances, where the alcohol has caused a person to act out of character, it might be thought that the consumption of an excessive quantity of alcohol can be a mitigating matter, but it does not appear that the offender did act out of character, I regret to say. 28Although there are no previous assaults on his criminal history, he was suspended for fighting whilst at school. He fought with an ex-girlfriend's new boyfriend when he was seventeen. He was the only one who punched on that occasion too. And in 2007 he responded to being denied entry into a licensed establishment by urinating on the wall outside. Whilst, of course, he has not ever acted in such a violent way as brings him before the court today, it is not the case that alcohol has caused him to act out of character to the extent that I regard it as a mitigating circumstance in this case. 29Just to make it clear that I have taken into account some matters relied on by Mr Brady, the offence was not planned, the offence was provoked to some small extent, there was aggression from Mr Holborow and the offender was, apart from the matters I have mentioned, of otherwise good character. It remains, of course, that the sentence to be imposed must reflect the objective gravity of what the offender has done and it is also the case that there needs to be a significant component of general deterrence built into the sentence to be imposed upon Mr West. 30Although he was seen by a forensic psychiatrist, there is no suggestion that he ever suffered from any form of mental illness or that there should be any reduction in the extent to which the sentence has a component of general deterrence built into it. 31As I began these remarks on sentence, what Mr West did on this occasion caused enormous harm to Mr Holborow and is part of the significant harm that is occasioned to society generally through the problem of drunken violence. Nothing less than fulltime custody is required. The sentence I impose is as follows: 32I set a non-parole period of two years and three months to date from today, 22 November 2012. I set a head sentence of four and a half years. It will be obvious that I have made a finding of special circumstances in the offender's favour based on this being his first time in custody and his relative youth. 33The non-parole period will expire on 21 February 2015 on which day the offender is eligible to be released to parole.