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District Court 27 October 2023

R v Aiga

[2023] NSWDC 622

Assault & violence
CRIME SENTENCE CAUSING GRIEVOUS BODILY HARM OFFENDER WAS DRUNK

Citation: R v Aiga [2023] NSWDC 622
Court: District Court of New South Wales
Date: 27 October 2023
Judge: Neilson DCJ

Background

The offender, a 28-year-old man, attended the Kogarah Tavern in the early hours of 4 June 2022 with his partner, who managed the venue. After a prolonged evening of heavy drinking across two hotels, the offender returned to the tavern around 1am and became increasingly disruptive, vomiting at the bar, overturning furniture, and yelling at his partner.

When a barmaid verbally challenged his behaviour, the offender reached across the bar, steadied her head with one hand, and smashed a beer glass into the left side of her face. The glass shattered on impact, severing her left temporal artery and the frontal branch of her facial nerve. Emergency surgery lasting five hours was required to remove glass fragments, repair the artery, and repair the nerve. The victim was left with a permanent 6cm scar.

The offender then pushed a security guard twice in the chest before being encouraged to leave the premises. He pleaded guilty to causing grievous bodily harm with recklessness (contrary to s 35(2) of the Crimes Act 1900) and to common assault of the security guard (contrary to s 61 of the same Act).

  • What sentence was appropriate for the principal offence of causing grievous bodily harm with recklessness, having regard to the objective seriousness of the offence and the offender's personal circumstances?
  • What weight should be given to the offender's extensive prior criminal history, including multiple alcohol-related offences?
  • What mitigating effect, if any, should be afforded to the offender's guilty plea, chronic post-traumatic stress disorder, difficult personal background, and intoxication at the time of the offence?
  • Whether special circumstances existed justifying a variation from the standard ratio between the non-parole period and the balance of the sentence.

Decision

Neilson DCJ found the glassing offence to be of serious objective gravity. The injury was described as potentially fatal had medical intervention not been prompt. The court noted that the offender used a glass as a weapon in circumstances where the victim, a barmaid standing behind the bar, was performing her job and had done no more than verbally rebuke the offender's behaviour.

The offender's prior record, which included a long history of alcohol-related offending, weighed heavily against him. The court also took into account a prison disciplinary matter in which the offender was found in possession of a homemade weapon (a "shiv") while on remand, though it acknowledged that this conduct was likely connected to the offender's hypervigilance symptoms arising from his diagnosed chronic post-traumatic stress disorder.

In mitigation, the court gave some credit for the guilty plea and had regard to the offender's traumatic background, his PTSD diagnosis, and the role of alcohol in the offending. The court also considered a psychological report and a report from a social worker. It found special circumstances, which permitted the balance of the sentence after the non-parole period to be longer than the standard one-third of the total sentence, on the basis that the offender required a more extended period of supervised parole to support rehabilitation.

The court recommended that the offender be admitted to the intensive drug and alcohol treatment program at John Morony Correctional Centre, noting the central role of alcohol in his offending history.

Orders Made

  • For the common assault of the security guard: convicted and sentenced to one month imprisonment commencing 4 July 2022, expiring 3 August 2022.
  • For causing grievous bodily harm with recklessness: convicted and sentenced to imprisonment with a non-parole period of two years and six months commencing 4 August 2022, expiring 3 February 2025, plus a further period of two years expiring 3 February 2027.
  • Total effective sentence: four years and six months.
  • Special circumstances found; offender eligible for parole at expiration of the non-parole period.
  • Recommendation to the Department of Corrective Services that the offender be admitted to the intensive drug and alcohol treatment program at John Morony Correctional Centre.
  • Reports of the psychologist and social worker to be provided to the Department of Corrective Services.

Key Takeaways

  • The District Court treated a glassing that severed a facial nerve and temporal artery as a serious instance of the s 35(2) offence, reflecting the life-threatening potential of such violence even where the victim survived.
  • A lengthy history of alcohol-related offending did not prevent mitigation for PTSD and a difficult personal background, but those factors did not substantially reduce the overall sentence.
  • Where a prison disciplinary matter arises during the remand period, the sentencing court may take it into account, while still recognising the underlying psychological conditions that contributed to the conduct.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were established, allowing a longer-than-standard balance of sentence to facilitate rehabilitation through supervised parole.
  • Intoxication, while relevant context, carried limited mitigating weight given the offender's established pattern of alcohol-related criminal behaviour over many years.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(2), 61
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Callaghan v Regina [2006] NSWCCA 58
- Filippou v The Queen (2015) 256 CLR 47