R v Debua [2018] NSWDC 415

District Court New South Wales

Medium Neutral Citation: R v Debua [2018] NSWDC 415 Hearing dates: 27 April 2018 Date of orders: 27 April 2018 Decision date: 27 April 2018 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: At [19]. Catchwords: SENTENCING — Single offence – Recklessly cause grievous bodily harm – lower end of the range of objective seriousness – number of mitigating factors – s 5 threshold not crossed Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Mauger [2012] NSWCCA 51 Texts Cited: None Category: Sentence Parties: Regina (Crown)

Hark Debua (Offender) Representation: Ms A Chauvet (Crown)

Mr W Tuckey (Counsel for the Offender) File Number(s): 2017/1256

Judgment 1. A very brief moment of recklessness while the offender was attempting to act as a Good Samaritan to assist a countryman of his from Nepal, has led to him appearing for sentence having pleaded guilty at the earliest opportunity to a count of recklessly cause grievous bodily harm under section 35(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of ten years imprisonment and no standard non-parole period. 2. The circumstances of the offending are set out in the agreed facts and video tape of the incident in which the offender struck the victim was shown to be consistent with those facts and consistent with the version, in my view, given by the offender in evidence today. 3. He is a young man, born in February 1994. He came from Nepal and was working and studying in Australia. He found himself outside the Verandah Nightclub in Elizabeth Street at around 3am on 31 December 2016, where there was a Nepalese dance party in progress. The victim approached the bar and tried to get in. He was described by the security guard as extremely intoxicated and a mess. He told him there are lock out laws and he could not let him in. The victim kept trying to get into the premises, and the security guard, Mr Dunn, saw the offender, thought that he looked Nepalese, and he asked for the offender's assistance in translating to the victim, to tell him that he could not enter the venue. 4. So, as the offender said, and as is shown in the facts and the video, he spoke at some length to the victim, attempting to explain to him that he could not get in and that he would get a fine if he persisted. I accept his evidence that he was hitting his hand, clenched in a fist, into the other hand, to indicate, as is the custom in Nepal, that he was likely to get a fine, which involves stamping on a piece of paper in that country. 5. After some further discussion, the victim became agitated and gestured towards the offender, and slapped him across the face, and the offender then threw a punch towards the victim, hit him, and he fell backwards onto the kerb. Another security guard held the offender. He immediately said, "I'm not going to run. I'm sorry, I didn't mean to do it." 1. The victim was taken to St Vincent's Hospital. There was a traumatic brain injury, low level of consciousness and a subarachnoid haemorrhage and hydrocephalus. He spent three weeks in intensive care. 2. The offender was initially arrested but then allowed to leave. In response to a request from the police on 2 January, that is, the following day, he attended Auburn Police Station and participated in an interview in which he admitted the matters to which I have referred. He told police that the victim had been swearing at him, and that he was trying to explain the lock out laws to save him from getting a fine. 3. The only matter on his record is one of contravene an AVO in 2016, for which he was given a three month section 10 bond. 4. I have regard to the evidence from the Royal Rehabilitation Centre as to the progress of Mr Adikari, which describes a life-threatening injury which affected his brain function and cognition, and for more than four months after the injury he had cognitive impairment, and likely to be persistent features. The victim impact statement sets out the impact upon him, and I take that into account. 5. The offender gave lengthy evidence before me. He indicated that he was simply trying to help someone and he was the one that ended up in trouble. I accept his evidence in its entirety, that he is not a violent man, he acknowledges that he did the wrong thing, and he will never hit anyone again. 6. The evidence demonstrates that he has worked hard since being in Australia, and has had considerable support and sacrifice from his family to enable him to come and study in Australia. 7. There are a number of testimonials as to his good character, and the lengthy report of Sam Borenstein setting out the history which has been adopted by him in evidence, and is not the subject of challenge. 8. He has reacted to his predicament by attempting suicide on an occasion and there are a number of symptoms of an extremely severe depressed mood and anxiety as a result of this one moment of violence, which is completely out of character for him. As he said to Mr Borenstein, he reacted after he was hit heavily on the left side of his head, leaving his ear ringing, and it left him feeling dazed. I accept his expressions of remorse are genuine. 9. He was not intoxicated on the night of the incident. He has expressed concern about the victim, and there is in evidence correspondence between the offender and the police officer in which he is enquiring as to the condition of the victim. The police officer told him in September that some effects of the injury are still evident but overall his recovery has been good. 10. I have regard to the limited statistics provided by Mr Tuckey in relation to these matters, which are some guide to the way in which a large range of cases have been dealt with. 11. Mr Tuckey's helpful written submissions point out a number of matters which were not the subject of challenge from the Crown. The objective seriousness of the offending is, of course, significantly dependent upon the seriousness of the wounding and the nature and extent of the injuries. I accept his submission that the objective seriousness is towards the lower end of the scale. The degree of violence involved was one single punch in response to the provoking slap to which I have referred. The mental element is, as Mr Tuckey puts, simply recklessness as to actual bodily harm. I accept that the offender was provoked, which constitutes a mitigating factor under section 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999, which mitigates the seriousness of the offence. There was clearly no premeditation or planning. A number of other mitigating factors emerge, including, as I have said, the plea of guilty, the expressions of remorse, the good prospects of rehabilitation that he has, and that he has demonstrated so far, and he is unlikely to reoffend. 12. The purposes of sentencing, of course, involve consideration of a number of conflicting factors. As the Crown submits, specific and general deterrence are significant matters to be taken into account, but there has been, as Mr Tuckey put it, in one sense, a sense of self-punishment, so the need for specific deterrence is limited. 13. I am persuaded that it is appropriate to deal with the matter by way of a section 9 bond, as Mr Tuckey submits, and that the threshold under section 5 has not been surmounted in the objective and subjective circumstances of this case. 14. The orders that I will make are: 1. The offender is convicted; 2. Pursuant to section 9, I order him to enter into a good behaviour bond for a period of 12 months from today. 3. The conditions are: 1. To reside at address per the orders in the court file; 2. To advise the clerk of the court by registered post of any change of residential address. 1. I indicate, that in imposing the section 9 bond, as Harrison J said in R v Mauger [2012] NSWCCA 51 at [40], the purposes of sentencing are "properly and adequately achieved by the imposition of a conditional bond." Note – This ex-tempore judgment was revised without access to the court file