District Court New South Wales Medium Neutral Citation: R v Russell Edward Horne [2017] NSWDC 121 Hearing dates: 18 May 2017 Decision date: 25 May 2017 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Suspended sentence. For orders see [56] Catchwords: Recklessly inflict grievous bodily harm in company Legislation Cited: Crimes Act 1900 Crimes (Sentencing Proceure) Act 1999 Cases Cited: Green v R (2011) 244 CLR 462 Category: Sentence Parties: Director of Public Prosecutions (Crown) Russell Edward Horne (Offender) Representation: Counsel: P Kerr (Crown Prosecutor) T Warr (Offender) Solicitors: File Number(s): 15/280284 Publication restriction: Nil REMARKS ON SENTENCE 1. The offender is to be sentenced in respect of an offence pursuant to s 35(1) of the Crimes Act 1900 of recklessly inflict grievous bodily harm (in company). 2. The maximum penalty for the offence is 14 years imprisonment, and there is a standard Non-Parole Period of 5 years imprisonment. 3. The offence occurred on 19 September 2015. The offender was arrested on 24 September 2015 and spent nine days in custody. A co-offender, Matthew Sheather is to be sentenced in respect to the same offence. 4. Another co-offender, Russell Noel Horne ("Horne Jnr"), the son of the offender, pleaded guilty to an offence of recklessly inflict grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900. He was sentenced at the Young Local Court on 5 July 2016 to a term of imprisonment of 9 months, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"). The sentence hearing 1. The sentence hearing took place on 18 May 2017 at Wagga Wagga. The Crown Sentence Summary (Ex A) included a Statement of Agreed Facts, which may be summarised as follows. 2. On 19 September 2015, the victim, Michael Boxsell, was at his home in Wombat Street, Young. Those premises were a single-storey dwelling with a detached carport and shed. The main entry to the premises was at the side of the house from the driveway. The entry was accessible by five steps, leading to a landing, on the outside of which, was a handrail. 3. At 10pm on 19 September 2015, the victim heard a vehicle pull up in front of his house and a number of car doors open and close. He looked out the window and saw the offender's vehicle parked on the street, and the offender, his son, and Sheather walking down the driveway towards the front door. Horne Jnr banged loudly on the front door and called out "Boxsell, why is there a group of guys making threats to me and my sister?" The victim responded "There is no-one here by that name, I have a fucking bat". He then opened the front door. 4. Horne Jnr was standing at the front door and the co-offender Sheather was standing to his right. The offender was standing at the bottom of the stairs. The victim saw co-offender Sheather present a black-coloured bladed knife, approximately 20-25cms in length. At that time, the victim was holding a samurai sword, approximately 1 metre long. The victim swung the sword, hitting into the top of the door arch. The victim moved towards Horne Jnr with the sword in his hand, at which point, Horne Jnr punched the victim to the face and the victim stumbled backwards. Horne Jnr then wrestled the sword from the victim's hand and threw it behind him. Horne Jnr began to punch the victim in the face with a closed fist and the co-offender Sheather also moved towards him and began to punch him with his closed right fist. 5. The offender was yelling at the victim about "running through houses". The victim yelled back that he did not know what the offender was talking about. 6. The facts relied upon by the Crown allege that the victim was pushed into the metal handrail on the landing outside the entry, whereupon the co-offenders pushed the victim down the stairs and he landed on his back. 7. Horne Jnr then got on top of the victim and began punching him with a closed fist to the face. At this time, one of the other co-accused was kicking the victim to his body. The victim felt a heavy impact on his right leg on the side of his knee, and felt the bone in his right leg snap, and started to scream. The offender then said, "Let's go, get off him, he's had enough". 8. The offender then told the victim not to make any threats of violence against his daughter, and the victim denied having made any threats against the offender's daughter. The victim then saw the co-offender Sheather standing over him, still holding a knife in his hand. He remained standing over the victim for a short time and the offender yelled out, "Alby, get in the car", a number of times, following which, the co-offender Sheather walked away toward the car. 9. The victim was rendered assistance by neighbours and a short time later the police arrived and rendered further assistance. The victim received a broken right tibia, which required surgical correction involving the insertion of steel plates and screws. He also sustained facial injuries, and injuries to his ribs, stomach and kidneys. 10. The offenders were arrested on 24 September 2015, and the offender made no comment in relation to the allegations put to him during an electronic interview. 11. At the sentence hearing, two facts were put in dispute by counsel for the offender, namely: 1. That the victim was pushed on the landing into the handrail by the offender; and 2. That there was a knife present, on the basis that the offender never saw a knife at the scene. 1. Evidence was given by both the victim and the offender, which may be summarised as follows. 2. The victim, Michael James Boxsell, gave evidence via AVL. He was in custody at Long Bay Correctional Centre in relation to unrelated firearms offences. He gave evidence that the offender, the offender's son, and Mr Sheather, had come to his home at Young on the night of 19 September 2015. He gave evidence to the effect that he was at his front door, or landing outside the front door, when he was confronted by the offender's son. He was pushed into the handrail by Horne Jnr, and then "someone else pushed us both down the stairs". 3. The victim acknowledged that he had made a statement to the police on 21 September 2015, and in paragraph 15 he had stated "Russell Snr had pushed me from behind and I went into the metal railing". That statement was made two days after the event and he gave evidence that he believed that when he made that statement, the offender was behind his son on the porch. The statement was correct, namely, both Horne Snr and Horne Jnr had pushed him. 4. The victim accepted that there was a knife present at the scene. Mr Sheather had a knife and had been poking it towards him. The offender had been present when that happened. 5. In cross-examination, it was put to the victim that he could not be sure that the offender had pushed him into the guard rail. He answered in words to the effect, "it looked like they were both pushing me". In his evidence-in-chief he had only identified Horne Jnr as pushing him. He acknowledged that he had not been able to see the offender at the time of the push, and had only been able to see Horne Jnr at that time. The offender's evidence 1. The offender tendered three character references (Ex 1). They were from his ex-partner, his daughter-in-law and her husband. They speak of the offender being a caring family man and the alleged incident to be out of character for him. 2. Exhibit 2 was a number of photographs of the scene of the offence, showing the front entry to the victim's home. 3. The offender gave evidence. He was now 60 years of age and had arrived in Australia aged 6 years from New Guineau. He had left high school after completing year 10 and commenced as an apprentice boilermaker at age 15. He qualified at age 19 and then travelled throughout Australia for a number of years. There were two children born of his relationship with Ms Carol Kennedy, the elder of whom was his son Russell Jnr. He left that relationship and had returned to Young and had constant unskilled employment as a labourer and abattoir worker. In 2009 he had lost his index finger as a result of an accident at work. He then did not work for a period of 3 years and had restrictions thereafter on lifting to a maximum of 5 kgs. 4. He accepted the Crown facts in relation to the offending, except he did not accept that he pushed the victim. In respect of the knife held by co-offender Sheather, he adhered to his evidence that he did not see any weapon. He described the incident as taking place in a time frame of 15-20 seconds. He described it as "mayhem". Prior to the offence he had been at home watching television. His son rang him and was very concerned, and told him there were "people coming around to jump on my head". He rang twice. The offender had then gone to his son's house and been shown a picture text of a weapon, being a pistol. He was very concerned. At his son's house were his cousin and the co-offender Sheather. He asked who was sending the pictures and someone, who he could not identify, said "Boxsell". The offender knew Michael Boxsell because Young is a small town, although he was not an associate. The offender gave evidence that his son was adamant that he was going to confront Boxsell at his home and asked the offender to drive him down there. He did so out of concern for his son's safety. When they arrived at the victim's home, he realised that co-offender Sheather had travelled in the back seat of his car, and he said to his son, "What's he doing here?" He gave evidence that at no time did he push the victim, and at no time did he have any physical contact with him. He did not see Sheather's right hand or anything in it. 5. When asked why he did not let his son walk, the offender said it was "a fair distance and I was concerned for his welfare". He thought his son was confronting a number of men. 6. Following the offence, the offender had spent nine days in custody, and upon his release on strict conditions, he was forced to leave Young and live 45 kms away. A month later he was forced to move to Cowra, and had rented a room in a hotel, and subsequently, a room in the publican's house for 12 months. He had only recently been allowed to return to Young, but had a curfew between 8pm and 8am and had to report to local police three times per week. Another condition, that he should have no contact with his son, had only recently been lifted. 7. The offender was still taking anti-depressant medication and had been diagnosed with diabetes type II, for which he was on medication. He was now in a relationship and his partner lived and worked in Queanbeyan. 8. Upon conclusion of the proceedings, it was his intention to move to Queanbeyan where there were better opportunities for work as a truck driver. 9. In cross-examination, the offender confirmed that he did not know who mentioned the name Boxsell when he was at his son's house, prior to the offence. The picture that he was shown on the phone of a pistol he interpreted to mean death. It did not say where the threat was coming from. His son had told Mr Boxsell had threatened that 10 people were coming around to "jump on their heads". 10. The offender said that he did not think of going to the police. It was not his son who said it was Boxsell, however, the offender took the threat very seriously. His son was adamant that he should go and confront Boxsell and he went there for his son's safety. He gave evidence that he went there to see what the problem was. Later, he found out that Mr Boxsell had been making threats to his daughter. When he went to Boxsell's house, he was expecting his son's cousin to go with them. It was only when they arrived that he realised that the co-offender Sheather was in the car. He had not looked at the third person in the car. He acknowledged that he did not know if there were 10 people and a pistol at Mr Boxsell's place, nor did he know whether Boxsell would be there. He denied that he had pushed Boxsell into the safety rail and said that he was at the bottom of the stairs when the confrontation took place, and the others were wrestling on the landing. He had seen his son and co-offender Sheather pushing the victim, but had not seen co-offender Sheather threaten the victim with a knife. The offender's submissions 1. It was submitted on behalf of the offender that the only issue on the facts was whether there was in fact a push by the offender. It was submitted that the court could not accept, beyond reasonable doubt, that there was a push. In his evidence, the victim Mr Boxsell, was not sure whether the offender had pushed him. The evidence of the offender was that there was no push, the event had taken place within 15-20 seconds, and he was not challenged about that. 2. It was submitted that the focus of the offender was what was taking place with respect to his son. He did not see co-offender Sheather holding a knife, however, he now accepted that there was a knife present. 3. It was submitted that in assessing the objective seriousness of the offending here, the offender was not armed. He had no physical involvement in the confrontation. His motivation was protection of his son and daughter. He had been confronted with an image on his son's mobile phone about which he was concerned. The court would accept that he was there to watch over his son, and he had the least involvement of the three offenders. He in fact told his co‑offenders to get off the victim and in that sense he was "a peacemaker" at the end of the assault. 4. It was submitted there was no planning involved in the offending. The offender had entered a plea of guilty on the first day of trial, following negotiations leading up to the trial. He was therefore entitled to a 10% discount on sentence. 5. The offender had suffered depression for which he had been treated by his GP by prescription of anti-depressants. The pre-sentence report contained an expression of remorse on behalf of the offender and he had spent nine days in custody. He was now a 60 year old man and his last offence had occurred when he was 49 years of age. The offender had a strong employment history and continued to work after his arrest. There were strong prospects of rehabilitation here, and he was likely to move to Queanbeyan to take up truck driving. 6. It was submitted that the court would take into account the voluntarily cessation of the offending and that the offender called it off. 7. The court would also take into account that the offender had been subject to strict bail conditions following his release from custody. This involved him moving to Cowra to live for 12 months, where he lived first in a hotel, and then at the publican's home. Upon his return to Young he was subject to a curfew and there had been no contact with his son. It was also submitted that the matter could have been dealt with in the Local Court. 8. It was submitted that the co-offender Horne Jnr had been dealt with in the Local Court pursuant to s 35(2), which involved a maximum penalty of 10 years in the District Court, but 2 years summary jurisdiction in the Local Court. A plea had been accepted and entered in respect to that offence. It was submitted that Horne Jnr had been the main protagonist as to the violence that took place, and that the offender had a far lesser role to play. Horne Jnr had received a suspended sentence for 9 months, non-withstanding a criminal history involving some violence. The Crown submissions 1. The Crown submitted that the length of time during which the offence took place was not challenged. It was not in issue that what occurred amounted to "mayhem". 2. It was submitted that the court would accept the evidence given in Mr Boxsell's statement, namely, that he told police that the offender had pushed him into the railing. He was now not sure whether it was the offender or Horne Jnr who pushed in conjunction, or that they pushed in conjunction with each other. 3. In respect of the evidence of the use of a knife by co-offender Sheather, it was submitted that the Crown did not agitate use of the knife above that contained in the Agreed Facts. It was submitted that the court would find beyond reasonable doubt that the offender must have been aware of the presence of the knife in co-offender's Sheather's hand. In effect, what was alleged was a joint criminal exercise. Each of the co-offenders were responsible for the actions of the others. The role of the offender here was less than that of the other co-offenders. His involvement was limited to driving to the premises and being present when the victim was injured. As an older man, he should have been a calming influence, and he must have known that there would have to be some kind of confrontation. It was submitted that the court would accept that the offender pushed the victim and that was his only physical involvement. The court would reject the submission made on behalf of the offender that he was a "peacemaker". That was not available on the Agreed Facts. As to those facts, there was no evidence of what the expression "running through houses" meant. Whilst the offender had denied kicking the victim, he was at least present when that occurred and was watching it. 4. In respect of the alleged threats to the offender's daughter, the victim denied any threats being made against the daughter. 5. It was further submitted that if the offender had serious concerns about his son's welfare, he should have reported the matter to the police. What they did, did not make any sense. It meant that the three of them may have been confronting 10 other persons and a gun. 6. The Crown submitted that there was no voluntary cessation of offending here, on the basis that the victim had had enough. At the time the violence ceased, the victim was screaming in pain, suffering from a fractured tibia. 7. It was submitted that whether the matters could have dealt with in the Local Court was not a relevant consideration. The plea of guilty came about following negotiations when proceedings were commenced, which were re‑agitated after Horne Jnr entered a plea of guilty to an offence pursuant to s 35(2), a different offence. Ultimately, the offender maintained his plea of not guilty, and in circumstances where his plea of guilty was entered on the Friday before the commencement of his trial, he was entitled to a limited discount of 5% on sentence. 8. The Crown submitted that there was no parity issue here. The offender had a criminal history, although there had been a period of abstinence from criminal behaviour for a period of some 11 years. The offending was still serious offending which led to significant injuries being suffered by the victim. The offender had been acting as a vigilante to extract justice. 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. I find the objective seriousness of the offending here was below the mid-range for an offence pursuant to s 35(1) of the Crimes Act 1900. The offender's role was less than the other two co-offenders, however, as a joint criminal exercise, he was responsible for their actions. He had driven the two co‑offenders to the victim's home, at a time when, if he had real concerns for his son's safety, he should have reported the matter to the authorities. By going there, the three co-offenders took the law into their own hands. The two co-offenders carried out a cowardly and violent attack on an older man in his own home. I therefore find that whilst it is below the mid-range for an offence, it is only just below that mid-range, and constituted serious offending. I accept, however, that the offender had no physical involvement in the attack. 2. I find that the offender did not push the victim into the hand rail, but rather, that was done either by Horne Jnr alone, or in conjunction with co-offender Sheather. 3. I accept that the offender called the two younger co-offenders off the attack, at a time when the victim was laying on the ground in his front yard with a fractured right tibia. I do not accept the submission that that amounted to him undertaking a role as "peacemaker" at all. Rather than being a peacemaker, he had facilitated the attack by taking the two younger co-offenders to the victim's home. At no time had he intervened in their attack on the victim. 4. I have taken into account the maximum penalty for an offence pursuant to s 35(1) of the Crimes Act 1900, of 14 years imprisonment, and the Standard Non-Parole Period of 5 years imprisonment as guideposts in the sentencing process. 5. The offender's plea of guilty came late, well after the matter was listed for trial, and the day before that trial was due to commence. In those circumstances, he is entitled to a minimal utilitarian discount on sentence of 5%. On the question of parity with the sentence imposed on Horne Jnr in the Local Court, notwithstanding that his son was subject to a different charge, namely, pursuant to s 35(2) of the Crimes Act 1900, the principle of parity still applies. As held by the High Court in Green v R (2011) 244 CLR 462, parity is a substantive and not a formal principle, and derives from the principle of equality before the law. It therefore applies to offenders charged with different offences who are involved in the same criminal conduct. The greater the difference in seriousness of the charged offences, the less scope there is for a meaningful application of the principle. Here, the offences are very similar, except that the offence pursuant to s 35(1) involves the aggravating factor of being "in company". There would therefore be a justifiable sense of grievance if this offender was subjected to a much more severe penalty than that imposed on his son in the Local Court. A court is, however, to take into account differentiating factors which apply in the circumstances of each offender. Here, the offender had a criminal history, but had not offended for over 11 years, and therefore that history, which included convictions of violence, can be discounted. A minimal discount also applies here. 6. Here, I note the offender is now aged 60 and has been subject to strict bail conditions which have significantly impacted on his life. I have taken into account in the sentencing process that he spent nine days in custody, together with principles of totality and proportionality in sentencing. 7. General deterrence is important in sentencing here. A strong message must be sent to the community that people are not to take the law into their own hands and, if they do so, severe penalties will be imposed by the courts. 8. Having regard to the objective seriousness of the offending, and the principles of sentencing that I have referred to above, I intend to impose a sentence of imprisonment of 12 months, suspended pursuant to s 12 of the CSPA. Orders 1. I make the following orders: 1. You are convicted of the offence of recklessly inflict grievous bodily harm (in company), pursuant to s 35(1) of the Crimes Act 1900. 2. I sentence you to a term of imprisonment of 12 months. 3. I suspend that sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act, on the condition that you enter into a Bond to be of good behaviour for a period of 12 months from today. ********** Amendments 02 June 2017 - Cover sheet: under the section Counsel, Trial Advocate is replaced with Crown Prosecutor 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: 02 June 2017