SUPREME COURT OF NORFOLK ISLAND

The Queen v Evans [2019] NFSC 2

ORDERS

THE COURT ORDERS THAT:

1.    The offender be sentenced to imprisonment for two years and eight months.

2.    The sentence of imprisonment be suspended in whole for a period of two years and eight months, during which time the offender is not to commit another offence punishable by imprisonment if he is to avoid being dealt with under s 42 of the Sentencing Act 2007 (NI).

3.    The offender pay within one month the sum of $1,000 as compensation for the injury suffered by Mr Kyran Buffett, such amount to be paid into Court and the Court will thereafter disburse the funds.

REASONS FOR JUDGMENT

BESANKO CJ:

Introduction

1    The offender has pleaded guilty to the offence of recklessly inflicting grievous bodily harm on Mr Kyran Michael Steele Buffett contrary to s 78(1) of the Criminal Code 2007 (NI). The offence took place on 24 December 2017 at Burnt Pine, Norfolk Island. The Code provides that the maximum penalty for this offence is 10 years imprisonment.

2    When the indictment was presented in this Court by the Commonwealth Director of Public Prosecutions (the Director), the offender was charged with intentionally inflicting grievous bodily harm contrary to s 77(1) of the Criminal Code. The offender pleaded not guilty to that charge, but indicated that he was prepared to plead guilty to recklessly inflicting grievous bodily harm. The Director told me that at the earliest available opportunity, the offender indicated that he was willing to plead guilty to the offence of recklessly inflicting grievous bodily harm. As I will explain, the offender is entitled to credit for that. On the day upon which the matter was listed for trial i.e., 24 September 2019, the Director presented the new indictment alleging recklessly inflicting grievous bodily harm and a notice indicating that the Director no longer proceeded with the charge of intentionally inflicting grievous bodily harm. On 24 September 2019, the offender pleaded guilty to the charge in the new indictment.

3    The Criminal Code defines the mental state of intention and recklessness respectively in relation to (as to intention) conduct, a result and a circumstance and (as to recklessness), a result and a circumstance. It is sufficient for present purposes to note that the definition of recklessness in relation to a result is that the person is aware of a substantial risk that the result will happen and, having regard to the circumstances known to the person, it is unjustifiable to take the risk.

The Circumstances of the OffendING

4    The parties put before me a Statement of Agreed Facts. The following is a summary.

5    From about 7.30 pm on Saturday, 24 December 2017, the offender and his friends, including Mr Winton Stevens, were at the Norfolk Island Leagues Club. The complainant was also at the Leagues Club and had been there since 6 pm that evening. The complainant had taken his dog with him and was sitting outside with his friends prior to the incident. The complainant had consumed about 10 vodka and orange drinks and one shot of tequila.

6    The complainant noticed Mr Stevens arriving at the Club at about 7.30 pm that evening. The complainant and Mr Stevens had known each other for a long time and did not have a good relationship. The complainant intended to avoid contact with Mr Stevens. However, that did not occur.

7    At about 10 pm, the complainant and his dog walked towards the main bar, passing the offender and Mr Stevens in the process. Mr Stevens made a comment to the complainant to the effect that his dog should be outside. An argument broke out between Mr Stevens and the complainant. They challenged each other to an arm wrestle with the loser to leave the Club.

8    The complainant and Mr Stevens moved to a small table located in the middle of the Club and next to the pool table. Approximately 12 patrons gathered around the table to watch what was happening and that group included the offender, Mr Blake O’Hara and Mr Daniel Griffiths.

9    The arm wrestle began and was recorded by Mr O’Hara on his mobile telephone. Mr Stevens won the arm wrestle and at this point, the complainant leant over the table and punched Mr Stevens, striking him under the right eye. The complainant stood up and punched Mr Stevens again. Mr Stevens stood up and punched the complainant and the complainant fell to the ground.

10    At this point, the complainant stood up and started moving towards Mr Stevens. The offender moved out of the crowd of people and started moving towards the complainant. The offender was holding a schooner glass in his right hand. As the offender was behind the complainant, he swung the schooner glass at the complainant, striking him in the rear right side of his head. The glass smashed on impact causing a number of deep lacerations to the complainant’s head.

11    After striking the complainant, the offender dropped the remaining part of the schooner glass onto the ground and moved back into the crowd of people. He left the Club a short time later.

12    The complainant’s head was bleeding heavily. Nevertheless, he continued to fight Mr Stevens until Mr Griffiths separated him by taking hold of his arm.

13    Mr Desmond Burger was also at the Club at the time, but he was seated at a table outside. He heard the sound of glass breaking and he rushed into the main area of the Club. He saw the complainant bleeding from the head. He obtained the first aid kit from behind the bar and took the complainant into the male toilets. However, Mr Burger was not successful in treating the complainant’s injuries.

14    Mr Ryan Christian is a friend of the complainant. He witnessed the incident from the bar area. He said to the offender, “What have you done?” The offender said in response, “What have I done?” Mr Christian entered the male toilets and saw the severity of the complainant’s injuries and took him to the Norfolk Island Hospital and Residential Aged Care Service (NIHRACS) which is a short distance from the Club.

15    The police attended the Club later in the evening and took photographs of the scene and adjacent areas and secured CCTV footage and Mr O’Hara’s mobile telephone footage of the incident.

16    On 25 December 2017, the offender contacted police and arrangements were made for him to be interviewed. The offender could not remember hitting the complainant, but admitted that he was the man shown doing so.

17    Dr Glenn Zerby attended the complainant at NIHRACS and evaluated his wounds. The main site of the complainant’s bleeding was a moderately large cutaneous artery which had been cut. There were five lacerations on the complainant’s head totalling 14.3 cm in length. The wounds were closed with 16 interrupted sutures and four running sutures. The complainant had suffered a class II haemorrhage and that means he lost greater than 15% of his total blood volume. Dr Zerby expresses the opinion that had it taken him a further 10 minutes to clamp the severed artery, the complainant would have had hypotension, altered mental status and potential permanent organ damage. Minutes after that, he would have died. In the immediate aftermath of the incident, the complainant was in pain and had trouble sleeping.

18    The complainant has prepared a victim impact statement which has been tendered under s 142 of the Sentencing Act 2007 (NI) and I have considered it as required by s 142(4). The injuries have had a significant effect on the complainant and he claims that he lost his employment as a result of days off work and the occurrence of migraines. In addition to those migraines, which he describes as cluster migraines, he suffers head and neck cramps and watering eyes. Furthermore, he suffers from depression, loss of sleep and nightmares. I have also seen photographs of the complainant’s injuries and they show that the offender’s attack on him was extremely dangerous.

19    I was told by the Director, and have no reason to doubt, that the complainant takes medication for his depression and that he continues to seek treatment for his recurring headaches, first from Dr Zerby until April 2018, and thereafter from the NIHRACS where he presented on seven occasions between May 2018 and May 2019. The offender’s counsel referred me to a medical note suggesting that there was no relationship between the incident and the headaches.

20    The Director seeks a compensation order of $1,000 under s 121 of the Sentencing Act and I will make such an order unless Mr Rowe, the offender’s counsel, wishes to say anything further.

21    As far as the offender’s own response to his offending is concerned, there are a number of items of evidence which are relevant. First, at least two witnesses describe the offender as appearing to be in shock immediately after the incident and, as I have said, Mr Ryan Christian said “What have you done?” and the offender replied “What have I done?” Secondly, the offender apologised in a Facebook message to the complainant on the day after the incident. Thirdly, the offender contacted the police the day after the incident and presented himself to them to admit what he had done. Fourthly, the offender has been affected by the incident such that he lost considerable weight and became depressed as a result of what he had done. That was his evidence and the evidence of Ms Sue Buffett. Fifthly, the offender undertook a self-imposed drinking ban by obtaining an order under s 76 of the Liquor Act 2005 (NI). Sixthly, the offender has indicated (as the Director concedes) from the earliest possible opportunity that he admits the offence of recklessly inflicting grievous bodily harm. Finally, the offender apologised to the complainant in the course of evidence before me and, as far as I could tell, that apology was genuine.

Personal Circumstances

22    The offender’s personal circumstances as gleaned from his evidence before me and the Pre-Sentence Report are that until 12 years of age, he grew up on Norfolk Island. The offender’s parents separated. Tragically, the offender’s sister was killed in a motor vehicle accident when he was 14 years old and that had a significant effect on him. The offender lived for a time in Port Macquarie completing year 11 at high school. Then the offender returned to Norfolk Island where he commenced full-time employment as an apprentice greenkeeper. The offender developed skills as a golfer. He had a short period as a farmhand. At age 19, the offender commenced a building apprenticeship. The offender completed that apprenticeship four years later. He worked for 11 years for a builder and earlier this year, he commenced work for another builder for whom he continues to work. I should say that the first builder ceased working as a builder.

23    The offender had a relationship with a long-time friend and there was a child of the relationship, Aaliyah, who was born on 7 August 2016 and is now three years old. That relationship broke down and the offender separated from his partner approximately 12 months ago. The offender believes that the relationship broke down because he became a recluse after the incident. The offender did not want to leave the house or interact with the community.

24    At present, the offender shares access to his daughter with his former partner and he has his daughter for half the time. The offender has a good relationship with his daughter. The offender states that he is saving up to build his own house on a block of land on Norfolk Island which his parents set aside for him. The offender has no medical or psychiatric history.

25    It is obvious that alcohol is a problem for the offender. One of the reports which I received was from Associate Professor A F Moynham who is a medical practitioner with an interest in forensic science and knowledge of the effects of alcohol and drugs. Associate Professor Moynham is of the opinion that the offender was very intoxicated at 10.30 pm on 24 December 2017 and that he may have had a blood alcohol reading of between 0.305 and 0.429 grams of alcohol in 100 millilitres of blood. Associate Professor Moynham confirms what is probably well-known in any event, and that is that alcohol can cause marked changes in mood and personality and, in particular, a loss of self-restraint and fine discrimination.

26    I have already referred to the offender’s self-imposed drinking ban. The offender is back drinking with one heavy night’s drinking a week. He states that he does not drink when he has custody of his daughter. In terms of illicit drugs, the offender has not consumed such drugs since he has been on Norfolk Island.

27    The offender’s representatives have assembled material from people who have known him for some time and who attest to his good character. That material comes from Ms Serina Mace, Ms Linda Vaughan, Ms Lee Quintal, Ms Lavinia Nicolai, Mr Peter Horrocks, Mr Vincent Chapman and Ms Vivian Chapman, and Mr Alan Buffett and Ms Sue Buffett. It has been put before the Court and I have had regard to it. That material indicates that there are people who have known the offender for many years and who consider that he is a good and useful member of the community, that the offending is totally out of character and that his interaction with his daughter is a good and positive thing for both her and the offender.

28    Ms Sue Buffett gave evidence. She was a very good witness and I accept her evidence. Ms Sue Buffett has known the offender for many years. That began when he started dating her daughter. She attests to the offender’s withdrawal from the community after the incident, that she has never known him to be verbally or physically aggressive, that he is not a violent person and that the offending is totally out of character. I accept that that is her honest opinion and she has not exaggerated her opinion to advance the offender’s interests.

29    The offender has previous convictions for criminal offending in 2011 and 2012. There were three groups of offences, two relating to Road Traffic Act offences (one for exceeding the prescribed concentration of alcohol) and a third to a failure to comply with community service orders. As the Director quite fairly concedes, this prior offending is not particularly relevant, primarily because it does not involve violence.

Sentencing principles

30    In determining the appropriate sentence to impose on the offender, I have had regard to s 5(1) of the Sentencing Act which sets out the purposes for which a sentence may be imposed on an offender. These provisions are consistent with the accepted purposes of criminal punishment, namely:

(1)    punishment;

(2)    rehabilitation;

(3)    general deterrence;

(4)    specific deterrence;

(5)    community disapproval; and

(6)    the protection of the community.

31    I have also had regard, as I must, to the factors or considerations set out in s 5(2) of the Sentencing Act.

32    The Director sought to rely upon the decision of Winch v R [2010] VSCA 141 (Winch) in support of her submission that there is a general rule that in a glassing case (where the offender is being sentenced for recklessly causing serious injury or inflicting grievous bodily harm as the case may be) it will not ordinarily be appropriate to impose a custodial sentence that is suspended in whole. The Director nevertheless accepted that there may be circumstances which justify a departure from this general rule, as was the case in Director of Public Prosecutions v Giannoukas [2011] VSCA 296 (Giannoukas). The Director submitted, as I understood it, that the circumstances of this case were not of the exceptional nature of the personal circumstances identified in Giannoukas.

33    I have considered the Director’s argument and I do not think it appropriate to compare the length of sentences imposed in the relevant authorities. Although I am conscious of the need for consistency in the sentences imposed for an offence of this nature, I am of the view that consistency is more likely to be achieved by applying established sentencing principles rather than following the sentences imposed in any cases with facts and circumstances which are in some way distinguishable from those of the present case (see The Queen v Christian (No 2) [2018] NFSC 4 (Wigney J) at [116]–[117]).

34    The offender’s counsel submitted that I should treat the authorities referred to by the Director with caution. He submitted that I should treat the Victorian authorities with caution because the maximum penalty in Victoria for the relevant offence is 15 years imprisonment, which is 50% greater than the maximum penalty for the offence for which the offender has been convicted. He also submitted that I should treat the New South Wales authorities with caution because the relevant offence in New South Wales attracts a standard non-parole period of four years, which, he submits, constrains the discretion of sentencing judges. I have taken these matters into account.

35    The offender’s counsel also submitted that the facts of this case are far removed from those of Winch and are much more aligned with those of Giannoukas. In support of this submission he contended that the offender’s conduct was triggered by the conduct of the complainant and that, but for a lack of proportionality, might be seen as acting in defence of another. The offender’s counsel also sought to distinguish Butters v R [2010] NSWCCA 1 and Blackwell v R [2012] NSWCCA 227 on the basis of the severity of the injury suffered in those cases.

36    I have taken all of the cases to which I was referred into account. They identify the general principles and provide some guidance as to the appropriate sentence.

Disposition

37    Sentencing is not just a matter of determining the areas of dispute between the prosecutor and the offender. As the public interest is involved, the Court must satisfy itself that irrespective of the attitude of the parties, “agreed” matters are established on the facts or embody an appropriate approach. As it happens, I am satisfied that the parties have identified correctly two important conclusions in this case.

38    First, a sentence of imprisonment must be imposed in relation to this offending. This is a serious offence which resulted, in this case, in serious injury. General deterrence must be accorded considerable weight in the case of a serious crime involving violence. The seriousness of the crime is reflected in the maximum penalty prescribed by the legislature of imprisonment for 10 years.

39    It is difficult to be precise as to where this case fits in the range of cases involving recklessly inflicting grievous bodily harm. Doing the best I can, and having regard to all the circumstances discussed above, I have reached the conclusion that the appropriate penalty, absent consideration of the “plea” of guilty at the earliest available opportunity as conceded by the Director, is a sentence of imprisonment of 3 years and 10 months. The offender’s counsel suggested a reduction of 25% for his plea of guilty and, in my opinion, that is appropriate. I will impose a sentence of imprisonment of 2 years and 8 months.

40    The parties posed the issue thereafter to be whether the sentence should be suspended in whole or in part under s 39 of the Sentencing Act, with the Director suggesting that there should be time served in prison by the offender with perhaps part of the sentence suspended, and the offender’s counsel suggesting that the sentence should be wholly suspended.

41    Although the seriousness of the offending, judged objectively, points away from suspension, there are, as the Director quite properly acknowledged, a number of mitigating factors. By a narrow margin, I have decided that the following factors considered as a whole justify a suspension of the sentence. The offender has no record of violence, other than this incident. The offender has immediately shown genuine remorse and contrition. The offender has cooperated with the police and he has pleaded guilty to the charge at the earliest available opportunity. The offending occurred in the context of a violent altercation between the complainant and the offender’s friend. The offender’s offending was totally out of character and I accept that he is not by nature, and when not affected by alcohol, a violent person. Alcohol does not excuse the offender’s conduct, but it does enable me to conclude that when the offender is sober, violence is not part of his character. The offender has the support of a number of people around him and that assists me in reaching the conclusion that the chances of his reoffending are slight and that the prospects of his rehabilitation are good. The offender has shown that he is able to hold down long term employment and he has responsibilities to care for his daughter.

42    I impose a sentence on the offender of imprisonment of 2 years and 8 months. I will suspend the sentence on appropriate conditions.

Associate:    

Dated:    4 October 2019