R v Swan [2014] NSWDC 226

District Court New South Wales

Medium Neutral Citation: R v Swan [2014] NSWDC 226 Hearing dates: 4 November 2014. Decision date: 04 November 2014 Before: Berman SC DCJ Decision: Sentenced to an effective overall sentence consisting of a non-parole period of 2 years and 3 months with a head sentence of 3 years and 9 months Catchwords: CRIMINAL LAW - Sentence - Affray - Cause grievous bodily harm - Presence of young children - Socially isolated offender Category: Sentence Parties: The Crown Dean Michael Swan Representation: Mr Campbell - Crown Ms L C Hutchinson - Offender Director of Public Prosecutions - Crown Mandy Hull and Associates - Offender File Number(s): 2013/62090

SENTENCE 1HIS HONOUR: On 12 February 2013 Jason Dewey was at home sitting on his nine year old son's bed playing video games. His partner Samantha Vincent had gone to bed, as had their six year old daughter. Mr Dewey was attracted by a commotion from outside. He heard male voices yelling threatening things to him. He went out to have a look at what was going on and saw an angry mob of men. Mr Dewey was clearly the focus of the mob's intentions. Ms Vincent joined him on the front porch of their home and she too looked at the group. 2Mr Dewey and Ms Vincent were able to recognise a number of the people who had come to their home and made threats. They recognised this offender, Dean Swan. He was easy to recognise as he was Ms Vincent's cousin and indeed at one stage she had allowed him to stay with her and Mr Dewey for some time. Ms Vincent recognised others too, including brothers of the offender. 3One of the Swan brothers, Joshua Swan, went around to the back of the house and attempted to force his way inside. He armed himself with a large piece of wood and proceeded to smash a number of windows in the house. When he came back to the front of the house he threw that piece of wood towards Ms Vincent, causing a significant wound on her forehead. 4Mr Dewey thought it was best for him to ensure the safety of his young children. He grabbed his daughter and was heading towards his mother's place next door when Dean Swan, the offender, threw a large rock at him. Given that he was carrying his daughter, Mr Dewey, his daughter and of course Dean Swan himself are very fortunate that the rock missed, albeit narrowly, both Mr Dewey and his daughter. 5Mr Dewey was able to ensure his daughter's safety before he was set upon by the mob. He suffered a number of injuries but given what occurred to him, it is remarkable that he got off as lightly as he did. He was kicked, he was punched, he was struck with a rock and cricket bat and an object like a screwdriver was used to inflict small wounds on the back of his neck. At one stage a guitar was smashed over his back. 6It is difficult of course to be precise as to what individual members of the mob did. It is clear, however, that all of the men who went there that evening were involved in a joint criminal enterprise to inflict fear and violence upon Jason Dewey and in that endeavour they succeeded dramatically well. 7I am unable to find beyond reasonable doubt that the offender actually struck Mr Dewey. His criminality is less than those who did, but in the circumstances of this case, where he was part of the mob and where he threw objects at Mr Dewey as part of his participation in the mob's joint criminal enterprise, his conduct was, as his counsel recognises, seriously criminal. 8Eventually police arrived and the mob scattered. Police officers offered first aid to Mr Dewey and Ms Vincent and an ambulance was called which took them to John Hunter Hospital where investigations revealed that Mr Dewey had suffered a fracture to the transverse process of his L3 vertebra. Fortunately this was a stable fracture and there was no risk of any damage to the spinal cord. Nevertheless he remained in hospital for two days in considerable pain before he was able to walk with difficulty from hospital and return home. Mr Dewey found it difficult to walk for a number of weeks after discharge from hospital. He improved, as the doctors expected, but he was left with some residual consequences of the injury suffered to his back. Whereas before he could lift up a bag of cement and carry his children around without any adverse consequences, to do so now leaves him with some pain. 9The offender now stands to be sentenced for an offence of affray which has a maximum penalty of 10 years' imprisonment and an offence of causing grievous bodily harm to Jason Dewey in company, being reckless as to whether actual bodily harm would be caused, which carries a maximum penalty of 14 years and a standard non-parole period of five years. I have taken this standard non-parole period and the maximum penalties into account in deciding the appropriate sentences. My reasons for not imposing the standard non-parole period, for the recklessly causing grievous bodily harm in company offence, appear in these remarks on sentence. Clearly, there is a considerable degree of overlap in these two offences and I have been careful not to double count this overlap in criminality. 10I am sentencing this offender but another judge has sentenced others involved in the offences. The reason for that is this. Mr Swan pleaded not guilty. During the course of his trial I heard evidence concerning the actions of other people involved who had pleaded guilty. The Crown and representatives of some of those men told me that the facts on which those who pleaded guilty were to be sentenced, were significantly different from the evidence which I had heard. Accordingly, it was appropriate for a judge who had not heard that evidence to sentence those who pleaded guilty. I do not know what sentences were imposed on those other men. 11These were most serious offences. Something in the order of 10 angry men were involved in the affray and attack upon Mr Dewey. They were not armed with pitchforks and flaming torches as they might have been in olden times, but did arm themselves instead with fence palings, a cricket bat, a rock, something like a screwdriver and even, bizarrely, a guitar, clearly with the intention of causing harm to Mr Dewey and terrifying both him and his wife. 12Perhaps the most remarkable aspect of the behaviour of this unruly mob was the disregard that was shown to the presence of young children, even to the extent that - and this is worth repeating for emphasis - this offender threw a rock at Mr Dewey while he was carrying his six year old daughter to safety. There could be absolutely no suggestion that Mr Swan was unaware of the presence of the daughter. There was another child of course too. The nine year old son of Ms Vincent and Mr Dewey, a child who had looked up to Dean Swan in the past, observed a large part of what went on. Mr Swan seems to have cared very little for the safety of the young girl and very little for his relationship with the young boy by acting as he did that night. 13Quite why the mob was there in the first place is a matter of some speculation. At the trial the Crown suggested that Mr Swan was out for revenge, having himself been the victim of an offence of violence and intimidation at the hands of Mr Dewey and Ms Vincent. For reasons which Ms Hutchinson outlined in the course of her submissions today, it is not possible for me to accept that that is the reason why the mob did as they did. The offender did not tell me. He pleaded not guilty and did not give evidence at his trial. He denied that he was there in the first place so there was no evidence from him as to why he was there. The violence is thus largely, if not completely, unexplained. That is scarcely a matter of mitigation. 14The events of that evening were both terrifying and violent. As might be imagined, neighbours were attracted by what occurred. They witnessed what can happen when a large group of men come together for the purposes of being violent. To say that the conduct of Mr Dean Swan and his co-offenders that evening represented a breach of the peace is something of an understatement. The offences caused harm not only to the immediate victim Mr Dewey but also his wife, his children and neighbours nearby. Fortunately, as I have already mentioned, the injuries to Mr Dewey were much less serious than might have been expected. That is a matter of good luck rather than good management. Indeed the injuries he actually suffered are very much at the lower range of injuries encompassed by the expression "grievous bodily harm". 15The offender is the second of five siblings. His parents separated and got back together fairly regularly over Mr Swan's early life. His father was a drinker and a violent drinker at that. From a very young age Mr Swan was exposed to alcohol and violence. When I say exposed to, I do not only mean that Mr Swan observed violence, on many occasions he was the victim of violence at the hands of his father. Not all of us have the same ability in life to make wise choices as we grow up. Mr Swan's ability to make the correct choices in life was very much inhibited by what he observed and experienced as he grew up. His moral culpability is lower than it would otherwise have been because of this circumstance. 16He has some matters on his criminal history. There is reference in the material to offences committed by the offender when he was under the age of 18 and an offence of common assault and one of breaching an apprehended domestic violence order when the offender was in his early 20's, but he is now 27 and so there is a significant gap in his offending behaviour. That is of some significance. 17He left school in year 9 but has led a rather aimless life since then. He has never had a job apart from a short period picking grapes and has no real intention or desire to ever obtain work. He relies on his family for his social network, as well as accommodation. This appears to be because of a significant lack of self-confidence. Mr Swan does not like crowds and prefers to socialise with his family. Indeed a significant part of his life has been taken up assisting his sister in the care of her children. 18Mr Swan's upbringing is such that a psychologist, who assessed him for the purposes of these sentence proceedings, said that: "The ongoing conflict within the home, the apparent lack of security, neglect and the absence of consistent care-giving seems to have affected Mr Swan's conduct, interpersonal functioning and his psychological wellbeing." 19The psychological report also notes some other important aspects of Mr Swan's behaviour. It appears that he has not functioned well socially at any point of his life and he struggled to complete the questionnaires and interview that the psychologist asked him to participate in. She assessed his intellectual functioning at a very low level. These matters suggest that general deterrence has less of a part to play in this sentencing exercise than would otherwise be the case. 20His behaviour on the night, when these offences were committed, is consistent with the behaviour that was reported in the psychological report and consistent with the description of the offender given by his mother and sister in evidence today. They all describe him as a follower. His behaviour on the night the offence was committed is consistent with that description. As I said, he is a man with little self-confidence. In those circumstances the prospects of rehabilitation need to be assessed as guarded. It is to be hoped that over the course of his incarceration, because a fulltime custodial sentence is the only option in the present case, he will be offered the assistance of psychological counselling, hopefully continuing upon his release from custody in an effort to encourage Mr Swan to do things in his life which have more of a purpose than simply gambling, drinking and using drugs as has so much been the case with Mr Swan's life to date. 21There are clearly special circumstances in this case justifying a departure from what would ordinarily be the statutory ratio between non-parole period and head sentence. This will be the offender's first time in custody and once he is released from custody he will benefit from significant assistance from the Probation and Parole Service, in order to ensure that next time the opportunity to commit offences presents itself to him, he will not follow those intent on such behaviour. 22I do not want to under-estimate the challenge that lies ahead for the offender. As I mentioned, his social activities have to date largely revolved around his family and yet the very facts of this offence, where other members of his family were involved in the nasty attack on Mr Dewey, demonstrate the problems of someone associating with influences of that kind. 23For the offence of affray I impose a sentence of imprisonment consisting of a non-parole period of two years commencing from 14 June 2014 and a head sentence of three years and six months. 24For the offence of inflicting grievous bodily harm in company, I impose a sentence of imprisonment consisting of a non-parole period of one year and six months commencing from 14 March 2015 and a head sentence of three years. Thus the overall effective sentence I impose consists of a non-parole period of two years and three months commencing from 14 June 2014 and a head sentence of three years and nine months. This means that the offender will be eligible to be released on parole on 13 September 2016. 25Any other order required? 26HUTCHINSON: Your Honour I would respectfully request that your Honour make a recommendation that the Department of Aging, Disability and Home Care assess Mr Swan in custody, as was recommended by Ms Durkin. 27HIS HONOUR: I will certainly make that recommendation.