Director of Public Prosecutions (NSW) v Lyttle [2015] NSWLC 4

Local Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Lyttle [2015] NSWLC 4 Hearing dates: 15 April 2015 Decision date: 24 April 2015 Jurisdiction: Criminal Before: Curran LCM Decision: Sentence the defendant to 13 months imprisonment, suspended on entering a good behaviour bond for 13 months, pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 Catchwords: SENTENCING - reckless inflict grievous bodily harm - importance of general deterrence - character references and victim impact statement - little use of supervision - contrition and remorse - guilty plea - no prior Legislation Cited: Crimes (Sentencing and Procedure) Act 1999 (NSW), ss 3A, 5, 12, 21A, 22, 23 Crimes Act 1900 (NSW), ss 35(2), 418 Cases Cited: R v Palu (2002) 134 A Crim R 174 R v Young (Court of Criminal Appeal (NSW), 27 October 1993, unrep) R v Zamagias [2002] NSWCCA 17 R v Doan (2000) 50 NSWLR 115 Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 28 October 1999 at 2326 Category: Sentence Parties: Director of Public Prosecutions (NSW) (Prosecution)

B Lyttle (Defence) Representation: Director of Public Prosecutions (NSW) (Prosecution)

C Watson (Defendant) File Number(s): 2015/1794 Publication restriction: Nil

​JUDGMENT

​BACKGROUND FACTS 1. Patrick Lyttle, the complainant in these proceedings, is the younger brother of the defendant, Barry Lyttle ("Barry"). Patrick arrived in Australia on a working holiday from Northern Ireland in June 2014. His intention was to travel around Australia for about a year, obtaining jobs in various places. Before he left Northern Ireland his brother, Barry, promised Patrick that he would come to Australia, visiting him in late December 2014 and remaining here for sufficient time to travel together to the Gold Coast. 2. Barry decided that when he travelled to Australia he would be accompanied by his father, Oliver Lyttle, together with a mutual friend, Tony Abusow ("Tony"). The appropriate flight arrangements were made and the party arrived from Ireland to Sydney on 29 December 2014. At this time, Patrick had been working in Perth and was to return to Sydney to meet up with the group. Patrick expected to meet his brother Barry but the inclusion of his father in the group was meant to be a surprise for Patrick. Having initially arrived in Sydney, the group stayed at a hotel in the city area but a few days afterwards, on 2 January 2015, they moved to a hotel at Kings Cross. 3. The family is a close one. It was respected by the community from which they came, Belfast, Northern Ireland. The boys' mother, Irene, had died in April 2008 as a result of a serious illness. The regard in which the family, and in particular Barry, was held, is attested to by the many character references that were tendered at the sentencing hearing. These included the local representatives at the Parliaments at Westminster and in Northern Ireland. In addition to these two testimonials, there were other references from members of the extended family, employers, as well as teachers who knew the family, and in particular Barry, during the latter part of his school career. As far as any antecedents are concerned, a report from Interpol indicates that some years ago the defendant was, on two occasions, the subject of cautions but has no criminal convictions. 4. The events that bring this matter before the Court occurred on the evening of 2 January 2015. On that occasion the complainant, Barry, Tony and the boys' father, had left their hotel to have dinner at a nearby restaurant. Drinks were consumed at the restaurant and after dinner the father returned to the hotel accompanied by the three others. Once the father had been settled at the hotel, the other three went out. They visited a number of establishments where they had drinks, ending at Hugos Bar and Lounge in Bayswater Road, Kings Cross. This establishment is monitored by a number of security cameras. The CCTV footage recording the three at this bar was played in Court. I have taken the opportunity of looking at this footage a number of times, not only in Court, but also in my chambers with the use of a slow motion device. The footage shows that the group arrived at Hugos Bar at 1.07 am on 3 January 2015. It takes up continuing observation of the group from about 2.50 am, both inside the premises, and then as the group leaves at about 2.53 am. Initially Barry and his friend Tony leave, followed a short time later by Patrick. The various cameras tracked their movements out of the premises and the footage from a camera mounted externally captures the three walking towards this camera at about 3.02 am. It is this footage that captures the defendant, Barry, striking his younger brother Patrick. The punch is to the head area, a result of which is that the complainant falls to the ground and sustains very serious injuries to the head. 5. Details of the injuries sustained are set out in the expert's certificate/report of Dr Benjamin Jonker, a Consultant Neurosurgeon at St Vincent's Hospital. The complainant was admitted to the Hospital at about 3.20 am. The report sets out details of findings on admission. The details of these were as follows: a) Right acute subdural haematoma with uncal herniation and dilated right pupil; b) Comminuted fraction orbital bone; c) Fracture right petrous bone. 1. These injuries required the following treatment to be carried out at the hospital: 1. Right decompressive craniectomy and evacuation of acute subdural haematoma and insertion of intra cranial pressure monitor. 2. It was noted that initially during admission the complainant had a left arm hemiparesis and right third cranial nerve palsy which recovered during the admission. 3. The complainant required a further operative procedure namely an autologous cranioplasty, which took place on 30 January 2015. 1. The complainant remained an in-patient at the hospital until 3 February 2015 when he was discharged to the Royal Ryde Rehabilitation Unit. 2. At the rehabilitation hospital Patrick Lyttle was under the care of a Registrar in rehabilitation medicine, Dr Arun Maran, who specialises in patients who have sustained brain injury. This doctor was working under the supervision of Dr Arnold Clayton-King, who is Medical Director of the Brain Injury Unit at the hospital. This doctor's report was before the Court. That report says that Mr Lyttle suffered from post-traumatic amnesia for the duration of 16 days. The following is extracted from that doctor's report: "Mr Lyttle made significant progress during his in-patient stay and was discharged home on 27 February 2015. At the time of discharge, he was independent with his mobility and all domestic functional tasks. The neuro-psychology assessment noted subtle difficulties on complex problem solving tasks, however, it was not anticipated that Mr Lyttle will experience difficulty returning to his previous level of function and roles. He presented for review in my clinic on 31 March 2015 and no outstanding issues were identified apart from gradual weening off his Pregabalin medication for resolving neuropathic pain. He is medically cleared to return back to driving and pre-injury work roles. In summary Mr Lyttle sustained a severe traumatic brain injury with significant improvements post injury. His outcome after injury is very good and very likely not to have a serious impact on his vocational and recreational needs. " 1. A neuro-psychological report was also before the court. It is signed by Ashley Young, a Provisional Psychologist from the Brain Injury Unit at the Royal Rehabilitation Hospital and also Joe Hanna, a clinical Neuropsychologist from the same unit. Relevantly, their joint report says as follows: "Compared to premorbid estimates of at least average to high average intellectual function, he remained well oriented and he performed in line with expectations across tasks assessing his attention, psycho-motor speed, working memory, mental arithmetic, visuo-constructional abilities, verbal and visual learning and memory. In addition, he performed within or above expectations on higher-order measures of executive functioning, including his verbal and visual reasoning, inhibitory control, multi-tasking and complex planning skills…………. Overall, he possesses sufficient insight and demonstrated a capacity to take on feedback, and at this stage it is unlikely that he will require further intervention from a cognitive perspective." 1. As can be appreciated from the medical material I have just referred to, the complainant suffered a very significant injury to his brain, but has, remarkably, made an extremely good recovery. This was over a period of some two to three months. 2. Returning to the events of this night, shortly after the striking occurred police arrived on the scene. The defendant was arrested and taken to Kings Cross Police Station. He was then interviewed and the interview was audio-visually recorded. A DVD of that interview was tendered at the sentencing hearing. The interview commenced at 5.41 am. However, this was subsequent to the defendant undergoing a test to assess the blood alcohol content of his blood. It was found to be .078 grams per 210 L of breath. In other words, this finding disclosed that the defendant was moderately affected by alcohol but by no means excessively so. It is consistent with the description of the social drinking that had taken place which is apparent from the contents of the record of interview. 3. I now turn to three areas of the evidence that were tendered in Court which I think need a little elaboration.