R v Christian Alfred Wooley [2019] NSWDC 474

District Court New South Wales

Medium Neutral Citation: R v Christian Alfred Wooley [2019] NSWDC 474 Hearing dates: 8 August 2019 Decision date: 06 September 2019 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentence. For orders see [66] Catchwords: Causing grievous bodily harm with intent Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Cases Cited: R v De Simoni (1981) 147 CLR 383 Category: Sentence Parties: Director of Public Prosecutions (Crown) Christian Alfred Wooley (Offender) Representation: Counsel: T Pickering (Crown) P Little (Offender)

Solicitors: E Navea (ODPP) F Falcomata (RMG Law) File Number(s): 17/32937 Publication restriction: Nil

REMARKS ON SENTENCE 1. On 18 March 2019, the offender pleaded not guilty to two counts on an Indictment at the Moree District Court. The two counts were as follows: Count 1 – On or about 16 January 2017, at Bingara, in the State of New South Wales, did cause grievous bodily harm to Stephen Clarke, with intent to cause grievous bodily harm. The offence was pursuant to s 33(1)(b) of the Crimes Act 1900. Count 2 – On or about 16 January 2017, at Bingara, in the State of New South Wales, did recklessly cause grievous bodily harm to Stephen Clarke. This offence is pursuant to s 35(2) of the Crimes Act 1900. Count 2 was in the Alternative to Count 1. 1. On 28 March 2019, the jury delivered a verdict of guilty to Count 1 on the Indictment. The maximum penalty for an offence pursuant to s 33(1)(b) is 25 years imprisonment. There is a Standard Non-Parole Period proscribed of 7 years imprisonment. 2. The following facts may be derived fairly from the jury verdict. 3. At approximately 11.30pm on 16 January 2017, a confrontation took place between the offender and the victim, Stephen Clarke, at the intersection of Cunningham Street and Maitland Road in Bingara, New South Wales. That intersection was the main intersection within the small town of Bingara. The confrontation occurred because the victim had sent a message to the offender, with whom there had been a history of animosity. That animosity stemmed from their involvement with the same woman. The victim had demanded the offender come to the IGA park, adjacent to that intersection, to "work out their differences", otherwise the victim would go around to the offender's house and do so. 4. The offender arrived at the IGA park with his brother-in-law, Ernie Kilgour. The offender parked his car adjacent to the park on the eastern side of the intersection. The vehicle was an unregistered supercharged V6 Holden. The offender had been in the area for some time, not knowing that the victim had secreted himself in bushes next to a walkway along the eastern side of the IGA park. 5. A number of people who had been at a birthday party for the victim's sister, Kylie Topp, earlier in the evening, approached the intersection along Cunningham Street on the western side. They were aware that the victim had earlier left his premises with a chainsaw. The offender at first thought that the victim was with that group of people. He was heard to yell out whilst in the intersection: "Where the fuck are you? I'm going to kill you. You run your mouth and don't back the fuck up." 1. At least one of the persons, who were at a point adjacent to Byrnes Lane, to the west of the intersection, yelled to the offender that Stephen Clarke was not there with them and that he should go home. 2. The offender and Mr Kilgour made their way towards the offender's car to leave, and as they did so, the offender observed Stephen Clarke in the bushes adjacent to the laneway. As Stephen Clarke emerged from the bushes, he activated the chainsaw and revved it up. The offender retreated onto the roadway and on the eastern side of the intersection, the two men confronted each other. There were varying accounts as to what happened in the intersection, however, it was clear that Stephen Clarke thrust the chainsaw in the direction of the accused a number of times. 3. Kylie Topp intervened and persuaded her brother to back away and to turn the chainsaw off. Stephen Clarke did so and then walked through the intersection, west along Cunningham Street towards their home. 4. The accused made his way towards his car with Mr Kilgour and said the following: "It's not over. Your chainsaw is no match for a car. Youse are all dead, it's not over." The accused got into his vehicle with Mr Kilgour and, notwithstanding that his house was in an easterly direction and therefore going home would have involved him turning right from where he was parked on Cunningham Street, he revved the engine and the tyres screeched as he set off in a westerly direction, in the direction of the complainant and other witnesses who were nearby on the north-western corner of the intersection. 1. The vehicle crossed the intersection at speed and came very close to Kylie Topp and Rodney Seage, forcing Kylie Topp to push Rodney Seage out of its way and onto the ground, and for herself to dive out of the way. 2. The accused continued to drive west on the incorrect side of the road towards the victim, and the victim reacted by striking the vehicle with the chainsaw, before retreating to the northern kerb, standing near the brick wall of a building on Cunningham Street. 3. The vehicle continued to the west along Cunningham Street, towards Byrnes Lane, where it made a turn to the left and skidded whilst it did so. The vehicle came to a position opposite the brick wall on the northern side of Cunningham Street. The offender then drove straight at the victim, who was standing on the footpath in front of the brick wall on the northern side of Cunningham Street. The vehicle, which was travelling at a speed of between 30 and 40 kilometres per hour, mounted the kerb and guttering and smashed into the victim, pinning him against the wall. 4. There was no issue at trial that the victim suffered really serious injuries which are outlined below. At the time of the offence the offender was disqualified from holding or obtaining a NSW driver's licence. 5. The defence case at trial was that the vehicle was out of control as it went along its final path towards the point of impact, and the offender had little, if any, input into its direction of travel at that time. The offender's case was that the offender lost control of the vehicle in the intersection of Maitland Road and Cunningham Street, and beyond that intersection, as he headed in a westerly direction, he accelerated to try to recorrect his error, and lost control of the vehicle. Instead of correcting the course of travel, the offender's case was that that put him into a broad slide and the vehicle did a 180 degree turn and stalled in the middle of the road. At that point, the offender's case was that Stephen Clarke approached the vehicle with his chainsaw going and swung it down and struck the bonnet of the car. The offender's case was that he locked the car into either neutral or park and started the vehicle's engine, turning the steering wheel all the way around, and "planted it", meaning accelerated severely. The offender's case was that as the vehicle turned around, it gained traction and then veered to the left and back to the right, and before he knew it he had mounted the footpath and hit the wall, and the victim was in between the wall and the car. 6. The offender's case therefore was that he had neither the requisite intention to intentionally cause Stephen Clarke grievous bodily harm, nor did he have the specific intention so as to recklessly cause the victim grievous bodily harm. The offender's case was that the vehicle he was driving was out of control immediately prior to the impact and the impact was not a direct result of an intentional path adopted by the driver of the vehicle, but occurred as a consequence of the loss of control and spinning of the vehicle. 7. It is clear from the jury verdict that the jury rejected that defence.