District Court New South Wales Medium Neutral Citation: R v Clement Sefo [2018] NSWDC 257 Hearing dates: 13 July 2018 Decision date: 19 September 2018 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full time custodial sentence. For orders see [62]. Catchwords: Recklessly inflict grievous bodily harm in company Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Anae v R [2018] NSWCCA 73 McCullough v R [2009] 194 ACrimR 439 Stevens v R [2017] NSWCCA 216 Thompson v Houlton (2000) 49 NSWLR 383 Category: Sentence Parties: Director of Public Prosecutions (Crown) Clement Sefo (Offender) Representation: Counsel: S Fraser (Offender) Solicitors: S Jaeger (Crown) File Number(s): 16/269116 Publication restriction: Nil REMARKS ON SENTENCE 1. The offender, who was born on 25 January 1980, is to be sentenced in respect of one count of recklessly inflict grievous bodily harm in company, pursuant to s 35(1) of the Crimes Act 1900. The maximum penalty for the offence is 14 years imprisonment and there is a Standard Non-Parole Period of 5 years imprisonment. 2. The offender was committed for trial on 7 March 2017. The matter was listed for trial and an Indictment presented averring a more serious charge. The Crown ultimately accepted an offer by the offender to plead guilty to the present charge, and thus, it was accepted by the offender that his plea came late in the proceedings, such that the utilitarian value of it had diminished. It was common ground that a discount in the order of 10-15% would be within legitimate sentencing discretion in accordance with the guideline judgment of Thompson v Houlton (2000) 49 NSWLR 383. 3. The offence occurred on 31 August 2016, when the offender was subject to a s 9 bond to be of good behaviour for 2 years, imposed on 10 May 2016. He was also on conditional liberty by way of three sentences of imprisonment for 12 months suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") for offences of common assault, assault occasioning actual bodily harm and affray on 10 May 2016. The offender was arrested on 7 September 2016 and has been in custody in respect of this offence since his arrest. The sentence hearing 1. The sentence hearing took place on 13 July 2018. The Crown Sentence Summary (Ex A) contained a Statement of Agreed Facts, which may be summarised as follows. 2. On 31 August 2016, the offender and his co-offender, Christopher Hunt, went to the Matthew Talbot Shelter at Woolloomooloo. The victim, Colin Mason, who was 51 years of age at the time of the offence, was sitting in the foyer area of the shelter, on the ground level. The offender and his co-offender entered the shelter and walked over to the victim. The co-offender threw water on the victim, who then stood up. The co-offender said, "Where's my girlfriend's stuff?", and the victim replied, "I don't know". 3. What occurred thereafter was caught on CCTV. The co-offender and the victim engaged in a conversation and a physical altercation started. During that altercation, both the co-offender and the victim were throwing punches at each other, and the offender was walking around the two men, watching the fight. While the co-offender and the victim were fighting, the offender moved behind the victim, and then moved in quickly and swung two punches, which connected with the rear right-hand side of the victim's head, the second which caused him to fall to the floor unconscious. The back of the victim's head hit the floor. The co-offender Hunt then walked towards the victim and kicked him with his right foot as he lay on the floor. The offender and co-offender then immediately walked to the door of the premises and left the shelter. 4. The victim was rendered first aid and taken to St Vincent's Hospital and admitted into the intensive care unit, where he was found to have a subdural haematoma, a cerebral frontal contusion, and a non-displaced right posterior parietal bone fracture. He also suffered superficial facial cuts, abrasions and bruising. 5. The victim had suffered a brain injury which was complicated by a previous brain injury, which prolonged his hospital stay. He was discharged from St Vincent's Hospital on 11 October 2016, with post-traumatic amnesia over a period of three weeks. 6. The victim continued to suffer cognitive deficits in all areas, especially language. 7. The offender was arrested on 7 September 2016 and participated in an ERISP interview. He told police that he had just tried to break up the fight. He had bumped into the co-offender Hunt, who told him about a time when he got hit by someone with a chain while he was asleep under a bridge. The co‑offender had asked him to go with him to see the guy who hit him with the chain, and he walked into the Matthew Talbot Shelter with the co-offender who poured water on someone, and then that someone started hitting him. He told investigating police that all he did was "tap old mate" during the altercation and that the co-offender was the one who "wanted to have a crack with old mate, not me". 8. The CCTV footage of the incident was played in open court (Ex B). It clearly shows a violent altercation between the co-offender and the victim, in which both men were throwing punches, but during which, the victim appeared to be getting on top of the co-offender. At that point, the offender stepped in from behind the victim and king hit him to the side of the head on two occasions. 9. Exhibit A contained the criminal antecedents of the offender. In New South Wales they were quite extensive, commencing in 2003 with offences of dishonesty and drug offences, together with offences of violence, including demand property with menaces with intent to steal, and custody of knife in a public place. There were further drug offences in 2005 and 2007, for which the offender was sentenced to periods of imprisonment, and in 2008 he was sentenced on an armed robbery offence to imprisonment for 4 years and 8 months, with a non-parole period of 3 years and 6 months. Other offences of dishonesty were taken into account on a Form 1. In 2008 he was also convicted of aggravated break and enter, commit serious indictable offence, for which a prison term was imposed. In 2011 he was sentenced to a further period of imprisonment for attempt to escape from lawful custody. 10. In 2015 the offender was sentenced to a further term of imprisonment for 12 months for offences of violence, including assault occasioning actual bodily harm in company of others, and common assault. In 2015 he was convicted of traffic offences and a s 9 bond was imposed, and in 2016 he was convicted of a further offence of dishonesty, namely, shoplifting, for which a s 9 bond was imposed for a period of 2 years from 10 May 2016. On the same day, he was sentenced by way of sentences of 12 months imprisonment for three offences of violence referred to above, suspended pursuant to s 12. 11. Exhibit A also included criminal antecedents from Victoria, which also included convictions for drug use and possession and offences of violence. 12. Exhibit A also included the remarks on sentence of Judge Bennett, who sentenced the offender on 24 February 2009 to a series of five offences, with an additional six offences particularised on a Form 1, pursuant to s 32 of the CSPA. On that occasion the offender was sentenced to a non-parole period of 3 years and 3 months commencing on 10 September 2008 and terminating on 9 December 2011. A further term of imprisonment of 3 years was specified to commence at the expiration of the non-parole period and to expire on 9 December 2014. The offender's evidence 1. The offender relied on a report of Ms Kay Martens, forensic psychologist, dated 30 June 2018 (Ex 1). Ms Martens conducted an assessment by AVL on 7 June 2018 for approximately 1.5 hours. Ms Martens set out the offender's family history. He was born in New Zealand and migrated to Australia with his family when he was aged nine. He was regularly disciplined by his father when he was a child, and commenced running away from home at age 16. The offender moved out of home at age 19 and moved to Sydney at age 23. He had been incarcerated soon after, and since then had never been out of gaol long enough to get a job. Prior to the current charges, the offender had been out of custody for approximately 1.5 years and was hoping to gain employment in the construction field. 2. Under the heading "Psycho-social", the author reported that the offender was in a relationship, which was his first serious relationship. That relationship, however, was characterised by emotional instability and property destruction and his girlfriend had engaged in self-harm. She was on a methadone maintenance program. The relationship was described as "tumultuous", and at times "unhealthy". 3. The author opined that the offender's account of his time in gaol suggested persistent depressive symptomology, including Post-Traumatic Stress Disorder ("PTSD"). 4. The offender had a history of poly-substance abuse which commenced at age 16 or 17. He first smoked cannabis, and at age 19 or 20 commenced intravenous use of amphetamines. At age 23 he commenced smoking methamphetamine and intravenous use of heroin. 5. At the time of the current offence, the offender had ceased using methadone and had been taking Gabapentin, a prescription medication used to treat epilepsy. He took this medication to manage withdrawal symptoms from ceasing methadone. 6. The offender had never attended rehabilitation for his substance abuse. The author opined that his history of substance abuse indicated an Opioid Dependence. He would benefit from the combination of an Opiate Replacement Treatment and Cognitive Behaviour Therapy. 7. The author recorded that the offender stated that he was motivated to offend by striking the victim in his head/neck area on two occasions, by a perception that the co-offender needed help. His consumption of Gabapentin and alcohol may have impacted the choices that he made. He had not thought about the consequences of his actions, and stated that he was now sorry for his criminal conduct. Further, the offender had been transported to court in the same Department of Corrective Services vehicle as the victim, and had apologised to the victim. 8. The author recorded that the offender stated that he had stable accommodation to return to upon his release with his girlfriend. His criminal conduct had been impacted by substance abuse, however, Ms Martens opined: "It is difficult to comment on how the interaction of these substances may have impacted his cognitive processes. He now expresses regret for his behaviour and states he has conveyed remorse to the victim. Mr Sefo reports an intention to desist from criminal conduct and acknowledges the importance of appropriately managing his substance use." 1. The author opined that the offender would benefit from referral to an intensive drug and alcohol treatment program, or the compulsory Drug Treatment Correctional Centre. Additionally, he would benefit from ongoing intervention with Justice Health with regard to his mental health. 2. Exhibit 2 was a letter written by the offender to the sentencing judge. In it he expressed that he was seriously sorry and regretted what he had done to the victim. He acknowledged the harm caused to the victim and the impact on his family and the community. 3. The offender stated that he was now 38 years and could not keep going to gaol. His partner was very sick and needed him to care for her. Further, he had been attending chapel and wanted to strive to be a better person. He regretted his actions and was remorseful to the victim. 4. Exhibit 3 was a letter from Father Greg Walsh, Chaplain at the Bathurst Correctional Centre, who recorded that the offender had spoken to him several times and attended regular chapel service whilst at that correctional centre. 5. Exhibit 4 was a letter from the offender's partner setting out their relationship since April 2015. Ms Hocking noted that the offender had had time in custody to reflect on his actions and his future, and now deeply regrets being in custody and the harm caused to the victim. It also set out the author's mental health issues and the assistance provided to her by the offender. 6. The offender gave evidence that the psychologist had accurately recorded his family background. He also acknowledged that he had told police that he had been involved in the incident to "help out a mate". He gave evidence that he just wanted to stop the fight and accepted that there were other things he could have done. 7. He had seen the victim the last time he had been at court for his trial, and they had travelled together in the same prison van. He had told the victim he was sorry and was surprised by how old the victim was. He was aware that the victim had spent a significant time in hospital and had problems with his brain functioning and memory following the incident. 8. The offender gave evidence that the incident occurred "out of the blue", and he had reacted quickly. He had been in custody following his arrest on 7 September 2016, and was now working as a sweeper. He had completed a number of courses and had spoken to the chaplain, Father Walsh, a number of times. 9. Recently in January 2018, he was transferred to the hospital wing at the Long Bay Gaol, where there were no courses available. He had also spent a lot of time in his cell when the prison was locked down over a period of two months. 10. The offender gave evidence that he intended to stay on his methadone program, but ultimately seek employment when he was discharged from custody. He wanted to undergo counselling to understand the effect of his relationship with his father. 11. In cross-examination, the offender conceded he had a history of violent offending, including an armed robbery in 2008, and a reckless grievous bodily harm offence in 2008. The offending had occurred when he was on a s 12 bond. In the present offence, he wanted to stop the fight. He acknowledged that his co-offender was bigger than the victim, and that he could have grabbed him and done other things to stop the fight. However, he did not, and punched the victim in the head from behind. 12. The offender was also cross-examined about robbery charges in 2009. He had an issue with drugs at that time. He had not used drugs whilst in custody and was intending to stay on a methadone program, however, he was off that program at the time of the offending. He wanted to try to get back into construction work. 13. The offender conceded that he had expressed remorse to the sentencing court before and when asked why this time it would be different, said that he knew that he had "stuffed up". He was now more mature, and had fully reflected on how he had "lost it in the past". The offender's submissions 1. Counsel for the offender relied on a detailed written outline of submissions. He set out principles for assessing the objective gravity of the offending, for the offence of recklessly inflict grievous bodily harm. It was submitted that the offending was principally a "result offence", meaning that the seriousness of the offence will significantly depend on the seriousness of the harm caused, relying on McCullough v R [2009] 194 ACrimR 439. It was submitted that in the present case the injuries were serious, but the assessment of the extent of those injuries was difficult to truly evaluate. Whilst the victim had been subject to cognitive testing which revealed deficits in all areas on 6 October 2016, no further testing was noted, following the victim's discharge from hospital on 26 October 2016. The court was therefore not in a position to determine the continuing effects of those deficits on the cognitive functioning of the victim. The presence of the continuing cognitive deficits was complicated by the fact that the victim had had a previous traumatic brain injury. It was submitted that it was reasonably possible that that injury may have resulted in lasting deficits in cognitive functioning. The evidence therefore supported a conclusion that the assault resulted in injury to the brain that affected the victim's cognitive functioning for several weeks thereafter. There was no evidence to safely conclude that the assault caused persisting impairment or permanent impairment. 2. The offender's role in the assault was that he was present at the commencement of the altercation. His physical involvement concerned the throwing of two punches only, albeit they had sufficient force to render the victim unconscious. His involvement was therefore somewhat limited. It was submitted that as the offender had struck the victim twice with a closed fist, that meant that the violence, whilst reckless in the manner required by s 35(1) of the Crimes Act, involved a lower degree of recklessness than contemplated by the section. It was submitted that the moral culpability of the offender ought to be regarded as similarly reduced. 3. The motive for the offending came from a perception that the co-offender needed help and the offender acted without thought to the consequences. By his plea of guilty, the offender acknowledged that his actions were not a reasonable response and did not warrant invocation of self-defence. It was submitted that the limited nature of the offender's involvement led to a conclusion that he intended to forcefully bring an end to the fight rather than in any way wanting to prolong it. 4. In assessing the objective gravity of the offending, the court would have regard to the following: * "The injuries are of a moderate nature – not life threatening; * The crime was not premeditated; * The assault was limited to two punches; * The assault was motivated by a perceived threat to the offender's friend, albeit his response was unreasonable and/or excessive." Those factors would lead to a conclusion that the assessment of objective seriousness was in the low-moderate range of offences contemplated by s 35(1). 1. It was submitted that an aggravating factor was that the offender was on conditional liberty at the time of the offence, having been placed on a 2 year s 9 bond on 10 May 2016. Mitigating factors were that the offence was not planned, nor part of organised criminal conduct, and that the offender had pleaded guilty. 2. It was conceded that the offender's criminal history was extensive and does not entitle him to any leniency. 3. The offender submitted that based on the report of Ms Martens, the fact that the offender was suffering from symptoms of PTSD, the offender's moral culpability for the offending may be reduced. It was further submitted that the offender was therefore an inappropriate vehicle for general deterrence and that a custodial sentence may weigh more heavily on him, which should be taken into account. His mental health condition may also reduce or eliminate the significance of specific deterrence. 4. It was submitted that the offender's ability to assess and evaluate the situation was hindered by his pre-existing PTSD condition and therefore his decision to act was reactive rather than a considered decision. Further, it would appear that the abuse of prescription medication had some impact on the offender's decision making. Whilst self-induced intoxication was not of itself a mitigating factor, in the case of this offender, his abuse of various drugs over his adult life was a product of his dysfunctional upbringing. The court was therefore entitled to have regard to the circumstances leading to his substance abuse as a matter in mitigation. 5. It was submitted that the offender was not an appropriate vehicle for general deterrence, or at the very least, any measure of general deterrence should be tempered on account of his PTSD. Similarly, the need for specific deterrence was lessened and in this case there was a greater emphasis on rehabilitation and treatment. 6. It was further submitted that the offender's PTSD symptoms were exacerbated in a custodial environment and therefore his time in custody will weigh more heavily upon him. 7. The offender relied on Ms Marten's report and the express desire of the offender to engage in rehabilitative treatment as the basis for a submission that he did not presently pose a significant danger to the community. 8. Counsel noted that since the offender was 23 years of age, he had spent the majority of his life in custody. He was a person at risk of institutionalisation and the court was entitled to extend a degree of leniency as recognition of the effect of such institutionalisation, and to provide the offender with an incentive to rehabilitate. The court should backdate any sentence to the date of the offender's arrest on 7 September 2016. 9. In oral submissions, Counsel for the offender distinguished the Court of Appeal decision in Anae v R [2018] NSWCCA 73. Here, whilst the situation fell short of giving rise to a defence of self-defence, it was not unreasonable for the offender to fear for his co-offender's safety, which led to a desire for him to stop the fight. Further, the victim had suffered a different injury from the victim in Anae, and the subjective case of the offender in Anae was not great. Here, it was conceded that whilst the s 5 threshold had been crossed, and the offender's past criminal history did not entitle him to leniency, there were some prospects for rehabilitation of the offender, albeit somewhat guarded. He had insight into his offending and had expressed genuine remorse. There were also signs that he was able to change his life around. He had acknowledged his offending and had apologised to the victim. 10. Further, the psychologist had opined that he met the criteria for a diagnosis of PTSD, which had not been diagnosed previously. He required treatment for his substance abuse and his difficult upbringing should be taken into account. He continued to have the support of his girlfriend, and he required the intervention of the Probation Services upon his release, and well thought out plan for his rehabilitation. For that reason, it was submitted that a finding of special circumstances should be made so as to vary the ratio between any non-parole period and his parole. Having regard to the objective gravity of the offending, it was submitted that, having been in custody since 7 September 2016, a period of almost 2 years, the offender was approaching an appropriate non-parole period of 2 years imprisonment. The Crown submissions 1. The Crown also relied on a written outline of submissions which referred to the principles in assessing the objective seriousness of the offending for an offence pursuant to s 35 of the Crimes Act. The seriousness of an offence would depend significantly on the seriousness of the injuries suffered, however, the manner in which the injury was inflicted, the reason it was inflicted and the surrounding circumstances were also relevant, relying on Stevens v R [2017] NSWCCA 216 at [40] – [44]. Here, the offending was objectively serious, and the Crown submitted that it was within the mid-range of objective seriousness, having regard to the injuries suffered by the victim, which included a subdural haematoma (bleeding on the brain), a cerebral frontal contusion (bruising of the brain tissue), and a non-displaced right posterior parietal bone fracture (skull fracture). Further, the seriousness of the offending was determined in the circumstances which surrounded the offence, namely, that it took place in the foyer of the Matthew Talbot Hostel in the afternoon, where an altercation had broken out between the co-offender and the victim, during which the offender had entered the fight, punching the victim twice to the back of the head from behind. The victim was knocked unconscious and fell to the ground and the co-offender had then walked towards the victim and kicked him whilst he was unconscious. The offender and the co-offender then left the shelter without assisting the victim. 2. The Crown submitted that general and specific deterrence were of paramount importance in such matters in denouncing this type of conduct. It was an aggravating feature that the offender was subject to conditional liberty at the time of the offending. Further, the Crown submitted that the offender's significant criminal history disentitled him to leniency, and that the offender's prospects of rehabilitation must be guarded, particularly given his lengthy history of violence related offences, and the lack of any effort in the past to address his issues with violence. 3. In oral submissions the Crown rehearsed its submission regarding the criminal antecedents of the offender amounting to a terrible history of violence related offences. Clearly there were other means of intervening available to him. The Crown agreed that any utilitarian discount was for a late plea and the appropriate range was 10-15% for the appropriate discount on sentence. 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 accept the Crown's submission that the objective seriousness of the offending here was within the mid-range of objective seriousness for an offence pursuant to s 35(1) of the Crimes Act 1900. Whilst the offending took place over a short period of time, it involved a physical altercation brought on by the co-offender confronting the victim, and a fight ensuing. It was only when the victim was getting the better of the co-offender in that fist fight, that the offender, from a position behind the victim, threw two punches, one of which landed on the side of the victim's head, causing him to fall to the ground and lose consciousness immediately, whereupon the co-offender kicked him whilst the victim was lying unconscious on the ground. The victim suffered a serious brain injury, as referred to above, and has suffered serious sequelae to that brain injury, with cognitive impairments which were complicated by a previous brain injury. The serious nature of those injuries, together with the conduct of the offender in intervening in the way he did, which was not only violent, but cowardly, given that the victim was struck from behind, lead me to assess the offending as within the mid-range of objective seriousness for such an offence, but towards the bottom of that mid-range. 2. I do not accept that the evidence of Ms Martens establishes a causal connection between the offender's symptoms of PTSD being causally connected to the offending. Nor do they lessen his moral culpability in the circumstances of this offending. The offender had the opportunity to intervene without striking the victim in the way in which he did. I accept the Crown's submission that general deterrence and specific deterrence are important in sentencing for an offence pursuant to s 35(1) of the Crimes Act 1900. A clear message must be sent to like-minded members of the community that this type of physical violence will not be condoned by the courts, that the Parliament has set heavy maximum penalties in respect of this offence, and that the courts will impose lengthy periods of imprisonment by way of punishment. 3. I do not accept that the mental health issues outlined by the psychologist reduce the role of either general deterrence or specific deterrence in the sentencing process here. 4. I have taken into account that the offender was on conditional liberty at the time of the offending, namely, that he was subject to both s 12 and s 9 bonds to be of good behaviour. He is, however, entitled to a 15% utilitarian discount on sentence. The offender's criminal antecedents do not entitle him to any leniency in sentencing. 5. Whilst I accept that the offender has expressed some remorse to the victim and to the court, I am not persuaded that he has good prospects of rehabilitation. He has a lamentable criminal history and having spent most of his adult life since the age of 23 in custody, is at risk of institutionalisation. It is up to the offender to avoid lapsing into recidivism and becoming institutionalised. I am prepared to find special circumstances pursuant to s 44(2) of the CSPA and vary the ratio of the head sentence to any non-parole period. I find special circumstances given the offender's ongoing drug issues, his need for further rehabilitation, relapse prevention counselling, and rehabilitation for his anger management and mental health issues. 6. I am also mindful that principles of parity apply here with respect to the sentence imposed on the co-offender Hunt. There are numerous similarities e.g. both were on conditional liberty, both had drug and mental health issues, and both have extensive criminal antecedents. I have therefore applied the same starting point for the sentence to be imposed for each offender, and taken into account the differences e.g. the utilitarian discount to be applied. 7. I am satisfied pursuant to s 5 of the CSPA that having considered all possible alternatives, no penalty other than imprisonment is appropriate here. Having regard to the objective seriousness of the offending as set out above, and the subjective features relied on by the offender, I intend to sentence the offender to a term of imprisonment of 4 years and 3 months, with a non-parole period of 2 years and 6 months, commencing on 7 September 2016. 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 non-parole period of 2 years and 6 months to commence on 7 September 2016 and to terminate on 6 March 2019. 3. The balance of the term will be 1 year and 9 months to commence on 7 March 2019 and to terminate on 6 December 2020. 1. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence. ********** 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: 19 September 2018