District Court New South Wales Medium Neutral Citation: R v Brian Michael Magus [2015] NSWDC 149 Hearing dates: 29 July 2015 Decision date: 07 August 2015 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Custodial sentence imposed. For orders see [38] Catchwords: Wounding with intent to cause grievous bodily harm Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Cahadi v R (2007) 168 ACrimR 41 Pearce v R (1998) 194 CLR 610 Veen v R No. 2 (1998) 164 CLR 465 Category: Sentence Parties: Director of Public Prosecutions (Crown) Brian Michael Magus (Offender) Representation: Counsel: K Mulley (Crown) M Carr (Offender) Solicitors: File Number(s): 14/229413 Publication restriction: Nil REMARKS ON SENTENCE 1. The offender has entered a plea of guilty to an offence of wound with intent to cause grievous bodily harm pursuant to s 33(1)(a) of the Crimes Act 1900. The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years imprisonment. 2. The offender has asked that an offence of specially aggravated break and enter with intent to commit grievous bodily harm pursuant to s 113(3) of the Crimes Act 1900 be taken into account by way of a Form 1. That offence carries a maximum penalty of 20 years imprisonment. 3. The offences occurred on 2 August 2014 and the offender was arrested on 4 August 2014. He spent 77 days in custody before being released to bail. The Circumstances of the Offending 1. The Agreed Facts (exhibit A) record that on 2 August 2014 the offender drove past premises at Fingal Bay where he observed two male persons known to him at the front of the property. The offender stopped his car and proceeded to have an argument with one of those men, in which threats were made. The facts record that the offender said to one of the men "I'm prepared to go to gaol to see you dead", and he then drove off. 2. About five to 10 minutes later, the offender again drove past the premises with an unknown male in his car. Again, he stopped the vehicle, and another argument took place in which the parties threatened each other. After five minutes the offender drove off. 3. Sometime later on that same morning, the offender returned to the property with three males, one of whom was the co-offender, Ryan West. Two of the males wore balaclavas. When they exited the offender's vehicle, all four males were armed with either baseball bats or pieces of wood. 4. The males forced entry into the premises by ripping the mesh from the front security door and opening the closed front door. By this time, the victims had exited from the back door of the premises and ran to the front yard. The offender and the three males then chased the victims to the front yard and surrounded them. The offender threw a scooter at the older male, which hit his chest. The older male was then felled by a strike with a metal bar across his back and shoulder. When he tried to get up, the offender hit him around the head and ankles with a lump of wood, whilst another male was hitting him with a metal bar. That person was wearing a stretch balaclava and was identified as a person known as "Pola". 5. At the same time, another co-offender was using a small blue metal bat to hit the younger male. After a short time, the four men left the premises. 6. As a result of the assault, the older male received the following injuries: 1. 1cm wound to the left eyebrow which required two sutures 2. Two large wounds to his head over the scalp, each approximately 8cm in length. One required 11 staples and the other 7. 3. Large boggy swelling and bruising to the right scalp parietal region, approximately 8cm in length. 4. Moderate bruising and swelling to the left elbow with an epidermal wound and a fracture. The fracture required operative repair and fixation. There was injury to the nerves in the left arm, the prognosis of which is guarded. 5. Bruising and abrasions to the left upper abdomen and tenderness and bruising to the left chest wall 6. Bruising and swelling to the left lower leg 7. Bruising and pain on movement of left mid foot region 8. Mild bruising over the left wrist 1. Following his arrest, the offender participated in a police interview in which he denied any involvement in the offence. Later that day he underwent a second interview when he made a number of admissions in respect of the matter. The Sentence Hearing 1. The sentence hearing took place on 29 July 2015. The Crown Bundle (exhibit A) included the prior criminal history of the offender, which relevantly included an offence of intimidate police officer in the execution of his duty on 23 February 2011, for which the offender was sentenced by way of a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") to be of good behaviour for 12 months. On 17 October 2011 he was sentenced in respect of three offences occurring on 14 August 2011, two of which were offences of stalk/intimidate intend fear of physical/mental harm, of which he was fined the sum of $750 in respect of each charge. Evidence on behalf of the Offender 1. The offender tendered a report from Mr I Schreiner, psychologist, dated 11 March 2015 (exhibit 1), together with a bundle of testimonials (exhibit 2). Exhibit 1 set out the offender's relevant family history. From age two the offender had lived in the Fingal Bay area. At age 13 he witnessed his mother die in an asthma attack. Following that, he was subject to abuse from his father and from age 14 he moved to live with his maternal grandfather. The offender has a younger sister to whom he is particularly close and has a protective relationship with. He left school after year 10 and worked in odd jobs. He eventually commenced an apprenticeship as a chef, but failed to complete the TAFE course because of difficulties studying. He has continued to work as a chef in the Fingal Bay area. 2. From age 14 the offender had a history of spiralling drug and alcohol abuse. His use of cannabis was regular, however, he stopped following his arrest. 3. The psychological report provides an account from the offender of the relevant offence. That account does not accord with the Agreed Statement of Facts of the matter. Upon clinical assessment, the author noted the offender to be experiencing clinically significant anxiety and depression that manifested itself in overt physical signs, including sweaty palms, trembling hands, complaints of irregular heartbeats and shortness of breath. 4. The offender was assessed as being "a friendly and transparent 22 year old man". He expressed genuine remorse about his actions and claimed that his behaviour was the result of "bottled up anger towards the victims, who had threatened to sell methamphetamine to his sister". The author opined that the offender had not dealt adequately with his mother's death, and that this posed a risk of relapse into substance abuse. Given his high level of anxiety and defensiveness, treatment was a key factor in developing increased self-awareness and strategies to deal with day to day difficulties. Mr Schreiner was of the opinion that the offender would benefit from cognitive behavioural therapy based upon anger management treatment by a clinical psychologist. 5. The testimonials tendered on behalf of the offender (exhibit 2) spoke highly of the offender's work ethic as a chef, and his contribution to various businesses. Unfortunately, the individual testimonials did not set out their authors' clear understanding of the criminal behaviour of the offender. Submissions on behalf of the Offender 1. It was submitted on behalf of the offender that the offence took place in a small town of Fingal Bay where the offender was well known. His psychological evaluation had demonstrated him to be honest and he had made a full disclosure in respect of his use of cannabis and alcohol. It is clear that he had been subjected to a significant life event with the death of his mother, due to an asthma attack and that he felt very protective to his younger sister, who is now 15 years of age. It was submitted that he responded to perceived threats to his family more so than a person of ordinary sensibilities. 2. It was submitted that the offending conduct arose out of a perceived threat to his sister. 3. It was also submitted that the offender had acknowledged his wrongdoing. It was submitted that the threat that he had made to one of the victims on the second occasion at the premises, as set out in [4] above, was language of a young person "demonstrating an excess of testosterone over common sense", and that he did not necessarily mean literally the words that were used. 4. It was submitted that the offender had attended some counselling sessions and had made progress. He was in full time work as a chef and had never been out of work, at times working two jobs. Further, it was submitted that he excellent prospects of rehabilitation, which was a mitigating factor pursuant to s 21A(3)(h). 5. It was submitted that the offender was not "a criminal type". He had on this occasion lost self-control in an emotional situation where he was being protective of his younger sister. He is entitled to a utilitarian discount of 25% in respect of his early plea of guilty, and it was conceded that his prior criminal history did not entitle him to further leniency. It was submitted that he was a young person who should be assessed for an Intensive Corrections Order. The objective seriousness of the offender's conduct was in the low to mid range, and the criminal conduct was over in a matter of minutes. However, it was accepted that his role was more significant than others in the offending and that the victim had suffered very serious injuries. In respect of the offence on the Form 1, the offender had acknowledged his responsibility for that offending. It was submitted that no criminal act occurred on the inside of the premises and that therefore the objective seriousness of the offending in respect of that matter was not increased. Crown Submissions 1. The Crown conceded that the offender was entitled to a 25% utilitarian discount on sentence. Further, the 77 days he had served in custody should be taken into account on sentence. His prior criminal history would disentitle him to leniency. 2. The Crown submitted that the objective seriousness of the offending here was within the mid-range. It was his car, he had stopped outside the premises and then returned on two separate occasions, "having gathered the troups". Of the three persons accompanying him, two wore balaclavas and all were armed. This led to a submission that there were aggravating features of the offending, including planning pursuant to s 21A(2)(n), the offending had involved a weapon ((2)(c)), and that the offending had occurred in the home of the victim ((2)(eb)). 3. The Crown submitted that the offender here had an opportunity not to return to the premises. That gave rise to an inference that he intended to perpetrate an act of violence on his return. 4. The Crown conceded that there was a possible mitigating factor pursuant to s 21A(3)(g) that the offender was unlikely to re-offend. It was submitted that the account that he gave to the psychologist of the offending was minimising his involvement and amounted to a fabrication. That account should be given no weight. It was therefore difficult to assess the risk of the offender re‑offending without a full acknowledgement from him. 5. Nevertheless, the Crown submitted that the offender had shown a willingness towards personal change and was involved in an ongoing process of required rehabilitation. The Crown submitted that whilst the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 had been met, that this was a suitable matter for the court to give consideration for an order that the offender be assessed for an Intensive Corrections Order. Determination 1. Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." 1. The objective seriousness of the offending here, having regard to the aggravating factors set out above, the severity of the injuries suffered by the victim, and the pivotal role played by the offender in the offending, is towards the mid-range of objective seriousness of an offence pursuant to s 33(1)(a) of the Crimes Act. Whilst it is below that mid-range, it still constitutes serious offending involving a brutal attack led by the offender on the victims. 2. In considering sentence in this matter, I must have regard to the maximum penalty of 25 years imprisonment, together with the standard non‑parole period of 7 years. These are legislative guide posts to be taken into account. Further, the court must take into account the importance of general deterrence, and specific deterrence to the offender, to demonstrate to the community that criminal conduct of this type will not be tolerated. 3. I accept the submission made on behalf of the offender that the words used by him in threatening the victims, may have been a testosterone driven embellishment by a young man, however, it is clear that he had ample opportunity to not engage in the criminal conduct, and yet returned to the property, on not one, but two occasions, the second with support from co‑offenders, all of whom were armed and two of whom wore balaclavas. It was not a spur of the moment offence, and involved some planning on his part, albeit of short duration. Those words demonstrated that he was prepared to take the law into his own hands, without regard to the consequences of doing so. 4. In respect of the offender's previous criminal history, I have had regard to what the High Court said in Veen v R No. 2 (1998) 164 CLR 465 at 477 where the plurality said: "The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted." The offender falls into the latter of the two categories referred to by the court. 1. Pursuant to s 21A (3)(i), the remorse shown by the offender for the offence may be taken in to account as a mitigating factor, but only if: "(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions and made reparation for such injury, loss or damage (or both)." I accept that the offender has expressed genuine remorse to Mr Schreiner about his actions, and that he has acknowledged responsibility for his actions and the injuries caused by them. 1. I have also taken into account that the offender is entitled to a discount of 25%, and I am mindful of the principles of parity, proportionality and avoidance of double punishment set out in Pearce v R (1998) 194 CLR 610 at [45]. 2. In respect of the Form 1 offence, I have certified that I have taken into account the Form 1. However, the authorities make it clear that the offending contained in the Form 1 must be taken into account so as to increase the level of punishment for the offence. 3. I have had regard to the aggravating factors and the mitigating factors set out above. Pursuant to s 5 of the Crimes (Sentencing Procedure) Act 1999, I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate for the offending here. I note that the offender has already spent 77 days in custody. I am not of the view that such period of imprisonment is likely to be less than 2 years, and therefore, I do not consider in this case that an Intensive Corrections Order is appropriate pursuant to s 7 of the Act. 4. Bearing in mind the maximum penalty imposed, and the standard non‑parole period, after applying a discount of 25%, I intend to sentence you to a term of imprisonment of 2 years and 3 months. 5. I find that there are special circumstances made out pursuant to s 44 of the Sentencing Act, in that you will require intervention in respect of your anger management. I therefore intend to vary the usual ratio between the head sentence and your non-parole period, and sentence you to a non‑parole period of 15 months imprisonment commencing on 22 May 2015 and terminating on 21 November 2016. Orders 1. I make the following orders: 1. In respect of the offence pursuant to s 33(1)(a) of the Crimes Act 1900, you are convicted. 2. I sentence you to a non-parole period of 15 months commencing on 22 May 2015 and terminating on 21 August 2016. 3. I sentence you to a further period of imprisonment of 12 months commencing on 22 August 2016 and terminating on 21 August 2017. 4. You will eligible for parole on 21 August 2016. 5. I have certified that I have taken into account the offence on the Form 1. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2015