Beckett v R [2016] NSWDC 280

District Court New South Wales

Medium Neutral Citation: Beckett v R [2016] NSWDC 280 Hearing dates: 6 June 2016 Date of orders: 06 June 2016 Decision date: 06 June 2016 Jurisdiction: Criminal Before: Neilson DCJ Decision: Appeal dismissed Catchwords: CRIMINAL LAW – Appeal against severity of sentence – Common assault on security guard in Kings Cross – Appellant intoxicated – Local Court imposed s 9 bond for 12 months – Need for general deterrence – No evidence that sentence imposed would inhibit future career – Appeal dismissed Legislation Cited: Crimes (Sentencing Procedure) Act Cases Cited: Pattalis v R [2013] NSWCCA 171 Category: Principal judgment Parties: Lauren Ann Beckett (Appellant) Director of Public Prosecutions(NSW) (Respondent) Representation: Mr P Carey (Appellant) Solicitor for the Director of Public Prosecutions(NSW) (Respondent) File Number(s): 2016/23558 Publication restriction: No Decision under appeal Court or tribunal: Downing Centre Local Court Jurisdiction: Criminal Date of Decision: 16 February 2016 Before: Henderson CM File Number(s): 2016/23558

Judgment 1. HIS HONOUR: This is an appeal against the severity of sentence passed by his Honour Judge Henderson, the Chief Magistrate of this State, sitting in the Downing Centre Local Court on 16 February 2016. The appellant pleaded guilty to a charge that on 23 January 2016, at Potts Point, she did assault Walid Ahmad. There was no averment that the appellant caused the victim any actual bodily harm. 2. The offence occurred outside The World Bar in Bayswater Road, Potts Point. The appellant and her boyfriend, Mr Kieran Hurt, were standing in a queue, seeking to enter the premises The victim, Mr Walid Ahmad, was employed by a security service, to act as a security guard at The World Bar, and to enforce the responsible service of alcohol. Mr Ahmad walked along the queue and noticed that Mr Hurt was unsteady on his feet. One of the reasons Mr Ahmad was walking along the queue, was to ascertain if any persons were too intoxicated to be admitted to the premises and to tell them to move on. Not only was Mr Hurt unsteady on his feet but Mr Ahmad determined that he was slurring his speech and he became verbally aggressive when Mr Ahmad spoke to him. 3. Mr Ahmad told Mr Hurt that he was too intoxicated to enter The World Bar and that he had to leave the queue and that he was not to remain within 50 metres of the entrance to the premises. The manager of the Bar, approached Mr Hurt and Mr Ahmad and reiterated the advice that Mr Ahmad had given to Mr Hurt. There was then a verbal argument. When Mr Ahmad and the manager started ushering Mr Hurt away from the queue, Mr Hurt hit the victim in the chest with his elbow, causing him pain. 4. At about the same time, the appellant told Mr Ahmad that Mr Hurt was her boyfriend and that he was to leave him alone. Mr Ahmad then started explaining to the appellant why Mr Hurt was being dealt with in this manner. Mr Hurt then swung one of his arms and hit Mr Ahmad with a closed fist, punching him in the jaw, causing him pain. After that, Mr Ahmad tried to prevent Mr Hurt from committing a further assault upon him by grabbing him but then the appellant, using an open palm, slapped Mr Ahmad a number of times on the back of the neck, and on the shoulders and over his ribs, using both hands. The appellant and the victim then fell to the ground, and, although the police facts indicate that the Crown case was that the current appellant kicked the victim in the left side of his chest, that is very hard to accept as physically happening, and the learned Chief Magistrate noted that there was a factual dispute about that. I do not approach this matter on the basis that the appellant kicked Mr Ahmad, which as I said, appears to me to have been physically inconsistent with the facts that were admitted. 5. The appellant told the Chief Magistrate she was intoxicated at the time of this offence, and that she had been drinking since 1pm, that is between 1pm and 11.45pm. Her drinking was because she had been at an "event". She did not offer intoxication as an excuse at all which is the appropriate thing to concede because that it what the law provides. His Honour ordered the appellant to enter into a good behaviour bond for a period of 12 months pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999. The appellant appeals against the severity of that sentence. 6. I am asked to impose instead a bond under s 10(1)(b) of the Crimes (Sentencing Procedure) Act. Indeed, I have been encouraged by Mr Carey, who appears for the appellant, to impose a bond, for longer than one year, if I grant the appellant the benefit of s 10. 7. This is alcohol fuelled misbehaviour in a public piece. This is alcohol fuelled behaviour in the late hours of a Saturday night when the appellant sought to take more liquor by entering the World Bar, licensed premises, in the company of her intoxicated boyfriend. Under the law of this State, acting out of character because of intoxication, is no excuse and is no mitigating factor. Indeed, at common law, the fact of being intoxicated was said to be an aggravating factor and it is often taken to be so. 8. I accept that, given her age and background, and her aims and aspirations in life, that the appellant will not commit an offence of the like nature again. However, although specific deterrence is not called for, general deterrence certainly is called for. Alcohol fuelled misbehaviour at a public place is to be visited with condign punishment. In Pattalis v R [2013] NSWCCA 171, Hoeben CJ at CL said at [23]: "Over recent years, the incidence of such offences, particularly when associated with the excessive consumption of alcohol, have been all too frequent. Such offences are a cause for grave disquiet and the community is understandably angry and frustrated at their occurrence. Regrettably, it is now notorious (as his Honour recognised), that a single punch can not only cause catastrophic injuries but also death. For offences of this kind, the community has the rightful expectation that judicial officers would impose meaningful penalties." In that case, the appellant had been charged with assault occasioning actual bodily harm. The maximum penalty for that was imprisonment for five years if dealt with on indictment. My colleague, Judge Berman sentenced the appellant to imprisonment for two years and fixed a non-parole period of 12 months. That offence occurred at 3.25am on a Saturday morning in 2010. The victim had left a nightclub in Pitt Street, Sydney and stood outside waiting for friends still inside the club to join him. About the same time, the offender and an unknown male, walked out of the club and turned and faced the victim. The offender then punched the victim in the face with a closed fist. The punch struck the victim on the left side of his face, knocking him to the ground. These offences are sometimes called "coward punch" offences but in the matter of Pattalis the victim only sustained actual bodily harm. 1. In the current matter there is no suggestion of any actual bodily harm, let alone grievous bodily harm. However, the fact remains, the appellant committed an offence in a public place in circumstances where she was intoxicated and coming to the "defence" of another intoxicated person who needed no defending because he had been guilty of an offence of assaulting the security guard himself. The appellant joined in the assault on the security guard. A melee could easily have arisen. Offences of this nature require meaningful punishment to deter any one who might think to act likewise and who might drink sufficient alcohol to disinhibit themselves and to behave in the manner that the appellant did. 2. The appellant's concern is that at the time that she stood for sentence in the Local Court, she was studying Certificate IV in Community Services, with a view to obtaining work as a social worker with troubled youth. She has currently put that study on hold, pending the outcome of her appeal to this Court and perhaps ascertaining what effect, if any, a conviction would have upon her ability to pursue her interest in working in the future with troubled youth. There is however no evidence one way or the other that a conviction that has been recorded by the Local Court would inhibit her in the future of obtaining employment working with troubled youth. It is not as if this was some form of sexual offence. 3. The imposition of a bond under s 10 would not provide adequate general deterrence and would not provide any meaningful penalty which offences of this nature require in accordance with what fell from Hoeben CJ at CL in Pattalis v R. 4. For those reasons the appeal is dismissed.