R v Cardwell [2013] NSWDC 150

District Court New South Wales

Medium Neutral Citation: R v Cardwell [2013] NSWDC 150 Hearing dates: 25 July 2013 Decision date: 25 July 2013 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of an overall non-parole period of 3 years and a head sentence of 5 years Catchwords: CRIMINAL LAW - Sentence - Form 1 - Assault occasioning actual bodily harm - Recklessly cause grievous bodily harm - Acts of violence following discovery of partner's infidelity - Ambushing victim Category: Sentence Parties: The Crown Adam Charles Cardwell Representation: Mr M Dennis - for the offender Director of Public Proescutions File Number(s): 2012/381472

SENTENCE 1HIS HONOUR: Discovery of a partner's sexual infidelity is something which is capable of generating a great deal of tension, but of course it is completely inappropriate and criminal to respond in a violent way. That is what Mr Cardwell did and that is why he must be sent to gaol. 2Adam Charles Cardwell was in a relationship with a woman by the name of Joanne Thornton. On 6 December last year they began to argue. Ms Thornton acknowledged some previous infidelity with a person named Michael but she did not identify him by giving the offender his last name. The offender did not take this well. He indicated that he wanted to meet Michael. He tried to ring Michael using Ms Thornton's mobile phone but the call rang out. 3He then got Ms Thornton involved in an ongoing and obviously planned series of events designed to lure Mr Michael O'Farrell, the Michael in question, to a location where Mr Cardwell could assault him. He instructed Ms Thornton to send text messages indicating a willingness to have sex with Mr O'Farrell. Mr Cardwell himself sent similar text messages pretending to be Ms Thornton by using her phone. 4The argument between Ms Thornton and the offender then escalated. It escalated to the point where Mr Cardwell began being violent towards Ms Thornton. He first slapped her in the face and elbowed her. He then forced her down to the ground. He held her by her neck, holding her on the ground while he was yelling at her. He was using his physical strength to control Ms Thornton. He pulled her by her hair to make her get up and slapped her again. She fell down onto the ground and the offender then kicked her a number of times while she was lying there helpless. Once more he pulled her by her hair and made her stand up and he pushed and struck her again, and once more she fell to the floor. Not content with all that had happened he kicked Ms Thornton again. 5The offender was not finished; he grabbed hold of Ms Thornton when they were on the lounge. He held a serrated edged steak knife to her and threatened to harm her. 6As a result of those acts of violence Ms Thornton, not surprisingly, suffered significant bruising to her arms, her chest, her ribs and around her eyes. When police attended the premises two days later they saw that she was in pain and having difficulty moving. She was treated at Royal North Shore Hospital. 7Those acts of violence have led to the offender being charged with, and pleading guilty, to an offence of assault occasioning actual bodily harm, an offence which carries a maximum penalty of imprisonment of five years. Of course that offence can be dealt with summarily. As can the next offence, which I will describe. 8Mr Cardwell was not finished; he then turned his attentions to Mr O'Farrell. He lured Mr O'Farrell to an address in Lane Cove by pretending to be Ms Thornton. Mr O'Farrell went there and when he knocked on the front door Ms Thornton answered, but it was not long before the true purpose of having brought Mr O'Farrell to that house became obvious. Mr Cardwell appeared at the door and punched Mr O'Farrell in the face two or three times. Mr O'Farrell fell to the ground but Mr Cardwell continued to punch Mr O'Farrell five or six times further. This caused his nose to bleed. The offender demanded Mr O'Farrell hand over his wallet, which he did, and the offender took three cards from him, no doubt intending to make it clear to Mr O'Farrell that he, Mr Cardwell, knew where Mr O'Farrell lived. 9The offender briefly went back inside the premises but when he returned he had a pair of scissors. He began to question Mr O'Farrell about his sexual relationship with Ms Thornton and while doing that he pressed the scissors against Mr O'Farrell's throat causing a small laceration. He made a threat concerning the scissors at the same time. 10The offender used other weapons as well, in particular a broomstick. He struck Mr O'Farrell to the extent that the broomstick broke when he raised his arm to protect himself. Though the broomstick was broken it was still capable of being used as a weapon and Mr Cardwell continued to use it in that manner, hitting Mr O'Farrell about fifteen times to his arms, his back and his face. He also thrust the scissors towards Mr O'Farrell but they did not connect. He went through Mr O'Farrell's backpack, and demanded Mr O'Farrell's mobile phone, which he then smashed. Mr O'Farrell went to Prince of Wales Hospital and it was that that brought the actions of the offender to the attention of police. 11As a result of the violence inflicted upon him Mr O'Farrell suffered mild to moderate bleeding to the retina of his left eye. He had a comminuted fracture to the floor of his right maxillary sinus, and undisplaced fracture of the lateral bony orbit and bruising to his left eyelid. He was sore and unwell for some time with concern being expressed as to his vision and of course he was in considerable pain for some time. One circumstance of the attack upon him is that there is a possibility of an increased lifetime risk that Mr O'Farrell will develop glaucoma in his left eye. Fortunately, at the moment, Mr O'Farrell's vision has recovered to his preinjury levels but there is a risk, as I have said, that things will turn bad in the years to come. 12Of course, the physical injuries are only part of the consequences for Mr O'Farrell. As he reports in the victim impact statement tendered by the Crown, he was, not surprisingly, scared and part of his apprehension related to Mr Cardwell's actions in taking identity cards from his wallet. Mr O'Farrell was scared that he would experience further violence at the hands of Mr Cardwell. 13For the actions which I have just described the offender is to be sentenced for an offence of recklessly causing grievous bodily harm with the destruction of the mobile phone being taken into account on the Form 1. For the offence of recklessly causing grievous bodily harm there is a maximum period of imprisonment of ten years with a standard non-parole period of four years. I have taken into account both the maximum penalty and the standard non-parole period in formulating the appropriate sentence for that matter. My reasons for not imposing the standard non-parole period appear in these remarks on sentence. 14It is recognised that these were separate acts of violence committed on different victims on different days. It is also recognised that weapons were used and that the violence was sustained. This is far from a case where, having used violence, Mr Cardwell immediately stops what he is doing and expresses remorse for what he has done. Any tension which Mr Cardwell felt about the disclosure of infidelity must surely have reduced over time and so his actions in luring Mr O'Farrell to premises where Mr Cardwell clearly intended to attack him, violently, have to be seen in that light. 15The offender is almost forty years of age and this is the first time that he has been convicted of any criminal offence. He was on bail at the time of his offending for matters which have yet to go to trial, so the evidence at the present stage is that these were his first offences. As well as that evidence there was evidence called from his younger brother, Joshua, who spoke about the offender's character in these terms; he said that "he was no more violent than others were when he was growing up and whilst there may have been scuffles on occasion, there was nothing out of the ordinary." 16As well as evidence of the offender's character in that sense, there is also other positive evidence regarding his character to be found in the references tendered on his behalf. There are three references including one from his exwife and one from his exwife's mother. The references speak of a person who is hard working, kind to others and whose actions in assaulting both Ms Thornton and Mr O'Farrell appear to be completely out of character. 17He has been in custody since his arrest on 8 December. Because of the nature of the charges that have yet to go to trial the offender served his custody up until today in circumstances which are harsher than those of the general prison population, not significantly so, but measurably so. I have taken that into account. But after sentence, that is after today, it is expected that he will serve his sentence in the same conditions of custody as do apply in the general prison population with perhaps a relatively short period when he is appearing for trial on the matters that have yet to be determined. 18The offender has expressed his remorse to those who have visited him, his brother and his exwife in particular and he has also written a letter addressed to me in which he continued to express remorse and says that he wants to express apologies to those who he has hurt most. The best way of apologising to someone is of course to say something. It is one thing to write a letter to a Judge expressing sorrow to those who have been hurt but it is another thing to say it yourself. I will accept that the offender is remorseful, the evidence establishes that but there is a lot more that the offender could have done if he had wanted to to demonstrate at a deeper level his remorse for his violent actions. 19Because these offences are, as the evidence stands to date, isolated, I accept that the offender does have good prospects of rehabilitation. There is perhaps one qualification to that; the criminality that he has displayed is somewhat remarkable - clearly he was angry to the extent that he deliberately lured Mr O'Farrell to a place where he would be beaten and inflicted sustained violence upon him, having done something similar to Ms Thornton earlier. People of good character who are the sort of person described in the references do not usually act in that way. 20The offender pleaded guilty at the earliest opportunity and so the sentences that I will now announce are twentyfive per cent less than they would otherwise have been to reflect the utilitarian value of those pleas. 21For the offence of assault occasioning actual bodily harm the offender is sentenced to imprisonment. I set a fixed term of eighteen months to date from 8 December 2012, that is a fixed term because of the sentence I will now announce on the second offence. 22For the offence of recklessly causing grievous bodily harm taking into account the matter on the Form 1, the offender is sentenced to imprisonment, I set a non-parole period of two years with a head sentence of four years. That is to date from 8 December 2013. The overall sentence is thus one consisting of a non-parole period of three years and a head sentence of five years. The earliest day on which the offender can be released to parole is 7 December 2015.