R v Russell [2014] NSWDC 30

District Court New South Wales

Medium Neutral Citation: R v Russell [2014] NSWDC 30 Hearing dates: 1 October 2013; 9 December 2013; 18 December 2013 Decision date: 21 February 2014 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of 2½ years and a head sentence of 5 years. For the offence on the s 166 certificate sentenced to a fixed term of imprisonment of 6 months Catchwords: CRIMINAL LAW - Sentence - Reckless wounding - Breach of an AVO - Violence - Children present at time of offence Cases Cited: R v Fernando (1992) 76 ACrimR 58 Category: Sentence Parties: The Crown Stanley Leonard Russell Representation: Mr S Fraser - The offender Director of Public Prosecutions Aboriginal Legal Service - The offender File Number(s): 2012/206558

SENTENCE 1HIS HONOUR: The matter before me today is a good illustration of the harmful effects that criminal behaviour can have on a large number of innocent people. In this case Stanley Russell attacked the woman with whom he was in a relationship, causing her significant harm. He did this in front of their children leaving them obviously distressed, and also at risk of thinking that violence is an appropriate way to deal with issues that arise in everyday life. On top of that Mr Russell's behaviour has seen him incarcerated, which has caused great distress to his family and particularly his parents, who have already lost one son who tragically died whilst in custody. 2So Mr Russell's crimes cause great harm to a large number of people. I doubt very much that he appreciates just how serious his behaviour has been and I doubt very much that he fully understands the impact of his offending on those he should be caring for rather than harming. 3On 2 July 2012 Mr Russell, whilst subject to an apprehended violence order that prevented him being in Mavis Fernando's home, and whilst on conditional liberty, smashed a bong into Ms Fernando's face. It broke causing significant injuries to her. An ambulance was called and one of the children present at the time told the offender to leave, so he did. Ms Fernando was taken by ambulance to the emergency department of the hospital and she underwent surgery that evening. The large lacerations severed two rootlets to a particular nerve on her face. Whilst one was repaired the other was not. She was discharged the following day, but now there is a permanent scar on her face, and what she describes as tingling near her eye. She has been told by a doctor apparently that the prognosis is uncertain and that there is a risk that eventually her eyelid will droop, interfering with her ability of course to see. I described the harm to her as significant, there is the scar, the risk of interference with her eyesight and of course the constant fears that she has, when every episode of tingling makes her worry that her eyesight will be affected. So she is the person most directly harmed by the offender's behaviour, but then, as I have said, he committed this offence in the presence of three children and the friend of one of them. 4Ms Fernando herself expresses things very well in her victim impact statement. She is concerned about the offender's behaviour impacting on their children. She says, "I don't want them to think that violence is the way to deal with things". And then as I mentioned, there are members of his family, in particular his parents. One of their sons, the offender's older brother Edward died when in custody. Not surprisingly they were greatly distressed, and continue to be, at Edwards's death. One can only imagine the fear that they must now experience knowing that another son, Stanley, is in custody and, because of the seriousness of his offending, must remain there for some time. Does the offender appreciate this? Does he appreciate how he has harmed large numbers of his family? Well I doubt it, but it is something I trust he will reflect upon in years to come. 5The offender grew up in Walgett. He was asked to leave school in Year 7. He then came to Sydney and lived with various aunties and uncles, but the most important aspect is that he commenced using drugs and alcohol. 6 He was in custody himself when Edward died. He was distressed at only receiving permission to attend Edward's funeral shortly before it took place and the inability to associate with members of the family in the immediate time after the funeral had concluded. His drug use escalated significantly after Edward's death and it has been problems with drugs and alcohol that have led the offender to commit a number of crimes including the one for which he must now be sentenced. 7The R v Fernando [1999] NSCCA 66 principles are of full application in the present case. Quite clearly if the offender continues to use drugs and abuse alcohol once he is released from custody he will continue to commit crimes and continue to go to gaol. 8A psychologist's report tendered today suggested that the offender's personality changed whilst intoxicated. Given the fact that the offender must well know that his personality changes whilst he is intoxicated, the fact that he was intoxicated on this occasion means that there was not any mitigation at all. This was a serious crime, it caused significant harm, it occurred in the home of the victim in front of their children and involved the use of a weapon, albeit one grabbed opportunistically. 9I have taken into account in determining the appropriate length of sentence in this case that prison will be particularly hard for the offender, given what happened to his older brother. I have also taken into account hardship to third parties, namely the offender's parents. It is rare indeed that hardship to third parties is taken into account, that hardship must be exceptional but it must be awful for the offender's parents to see Stanley in gaol, given what happened to Edward. 10In this case personal deterrence must play a large part in the sentence to be imposed upon the offender. He has truly limited insight into the effect of his crimes on those around him. He therefore needs to be made aware in very concrete terms that he too will suffer if he abuses alcohol, uses drugs and therefore commits crimes. General deterrence must also play a significant part. 11The maximum penalty for the offence which Mr Russell must be sentenced is seven years imprisonment. It carries with it a standard nonparole period of three years. I have taken both the maximum penalty and standard non-parole period into account in determining the appropriate sentence. My reasons for not imposing the standard non-parole period are to be found in these remarks on sentence. 12The offender pleaded guilty, not at the earliest opportunity but not at the latest opportunity either. The circumstances were that he offered to plead guilty, shortly before a trial was to be held, to a lesser charge than that which the Crown wished to proceed upon at that stage. The Crown would not accept that plea in full satisfaction of the indictment. The trial was vacated for unrelated reasons and at the commencement of the subsequent trial the offer to plea guilty to the lesser charge was renewed and this time it was accepted by the Crown in full satisfaction of the indictment. In those circumstances I will discount the sentence I would otherwise have imposed upon the offender by 15% to reflect utilitarian value of his plea of guilty. 13As well as sentencing Mr Russell for that matter I must also sentence him for contravening the AVO, that charge appears on a s 166 certificate. Given the close relationship between the two offences he will receive no extra punishment for having contravened the AVO. I take into account in making that decision also that the statement of facts specifically records at the time of the offence, and thus the time of the breach of the AVO, the offender was with Ms Fernando with her consent. 14The offender has been in custody for some time now. Part of that is because he is bail refused on these matters but part also is because he served a sentence for unrelated matters. In order to reflect the pre sentence custody specifically relating to this matter I will start the sentence I am about to impose upon Mr Russell from 1 June 2013. I acknowledge that the principal of totality applies in relation to the fact that Mr Russell has served a sentence and been in continuous custody for some time. I have take that principal of totality into account in deciding the length of the sentences I will now impose upon him. 15 There are clearly special circumstances in this case and the most obvious of course is the continuous period of custody, but there is a need for supervision upon Mr Russell being released from prison. Mr Fraser expressed it well when he said there is also a need for a stick as well as a carrot. Mr Russell must know that a breach of parole, most obviously through further offending or drug use, will see him going back to custody with all the terrible consequences that that entails. 16For the offence on the indictment of reckless wounding, the offender is sentenced to imprisonment. I set a non-parole period of two and a half years to date from 1 June 2013 and a head sentence of five years. The non-parole period will expire on 31 December 2015 on which day the offender is eligible to be released to parole. The charge under s 166 certificate I impose a sentence of imprisonment of six months fixed term to date from 1 June 2013. It is my strong recommendation that Mr Russell be allowed to serve his sentence as close as possible to his parents in Walgett.