R v Reid & Reid [2001] ACTSC 88 (28 August 2001)

Last Updated: 29 January 2002

THE QUEEN v DARRYL RAYMOND REID and WAYNE MATTHEW REID ACTSC 88 (28 August 2001)

CATCHWORDS

CRIMINAL LAW - sentencing - assault occasioning actual bodily harm - whether application of s 556A of the Crimes Act 1900 warranted.

Crimes Act 1900, s 556A

No. SCC 216-217 of 1999

Judge: Crispin J

Supreme Court of the ACT

Date: 28 August 2001

IN THE SUPREME COURT OF THE )

) No. SCC 216-217 of 1999

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

against

DARRYL RAYMOND REID

and

WAYNE MATTHEW REID

ORDERS

Judge: Crispin J

Date: 28 August 2001

Place: Canberra

THE COURT ORDERS THAT:

1. Darryl Raymond Reid and Wayne Matthew Reid each be convicted of the offence that on 16^th day of January 1999 at Canberra in the Australian Capital Territory he assaulted Ismael Mahommed Salem and thereby occasioned to him actual bodily harm.

2. That in each case sentence be deferred upon the defendant entering into a recognisance himself in the sum of $5,000 to be of good behaviour for a period of three years.

1. Darryl Raymond Reid ("Darryl") and Wayne Matthew Reid ("Wayne") have each pleaded guilty to one count of assault occasioning actual bodily harm.

2. The offences occurred about 2.00 am on 16 January 1999 when they were ejected from a nightclub in Civic. Darryl was due to be married and the evening had been the occasion of his "bucks' night". He was wearing a silver dress and a red wig and was obviously very drunk. His brother Wayne had also been drinking heavily but was apparently somewhat less intoxicated. The proprietor of the nightclub had spoken to the group a number of times about their behaviour which had become steadily more rowdy. He eventually asked Darryl to leave and escorted him from the nightclub. His brother and a number of other young men from their group followed them out. At the entrance to the nightclub there was a brief discussion involving Darryl, the proprietor and a security officer. Darryl began to swear and turned towards the proprietor who pushed him towards the door. Wayne who was already outside then came back and began to punch the proprietor. A general melee then ensued involving security staff and other patrons of the nightclub. The proprietor fell to the ground and was then kicked in the head several times. At some stage he lost consciousness he was later found to have suffered a broken jaw, the loss of three teeth, concussion and swelling to the face and mouth as well as an injury to his shoulder. However the Crown frankly conceded that it was unable to say when or how any particular injury was received, whether it was occasioned by a punch, kick or fall or, whether it was directly attributable to any act of either of the defendants.

3. Before turning to the particular facts of this case, it may be appropriate to make a number of comments about offences of this nature.

4. First, no civilised society can afford to tolerate offences of violence and those who commit them should normally expect to receive sentences commensurate with their gravity.

5. Second, neither a special celebration nor the fact that an offender is intoxicated offers any excuse for violent behaviour. Intoxication will not necessarily or even usually be a mitigating factor and its relevance to the determination of an appropriate sentence will depend upon the circumstances.

6. Third, those responsible for the management of hotels, clubs or other licensed premises may be particularly vulnerable to assaults by drunken and belligerent patrons. They are entitled to ask people behaving inappropriately to leave and, if they refuse, to use reasonable force to eject them from the premises. They must do so without themselves resorting to unnecessary violence but are entitled to discharge their responsibilities without being attacked by those ejected, no matter how aggrieved these people may feel at having the evening's festivities curtailed.

7. In the present case counsel for the offenders submitted that the circumstances in which the offences occurred were quite unusual. Darryl had earlier expressed a preference for a relatively quiet evening but his friends obviously had other plans. They had arranged for him to attend a function in a private room at Football Park where a great deal of alcohol was obviously consumed. Beer glasses were taped to each of his hands and he was encouraged to empty one after each song. He plainly became very drunk. At one point during the evening someone produced the silver dress and red wig which he later wore to the nightclub. It was submitted, in essence, that he had drunk far too much alcohol substantially because of the emotional pressure created by the expectations of his friends and the fear of looking like a "wimp" if he declined. In any event, it is clear that he was very drunk by the time he arrived at the nightclub. Not surprisingly he has very little recollection of what occurred. He could not recall the assault and could offer no real explanation for striking the proprietor.

8. Wayne was also drunk. Some indication of the amount of alcohol consumed that evening can be gleaned from the fact that he admitted to having had at least ten schooners of beer but felt responsible for Darryl whom he obviously regarded as far more intoxicated. He arrived at the nightclub a little later than the others because he had stayed to help clean up after the private function. He said that when the group became rowdy and the management wanted them to leave he had told the staff that he would round them up and get them out of the premises. That offer was apparently refused. He then walked outside as directed. He said that he saw his brother leave and saw the owner of the nightclub hit him on the back of the head. In cross-examination he conceded he may have been mistaken and that the proprietor might have merely pushed his brother. However, he maintained that he had believed that his brother had been punched and that he would have been virtually defenceless as he was so drunk that he could barely stand. He ran back in to punch the proprietor and when restrained by security guards continued to flail around for some time.

9. It is clear that in the ensuing melee the proprietor was seriously injured. However, other people plainly became involved in the fight and it is by no means clear that either of the brothers either inflicted the more serious injuries or contemplated that such injuries might occur. Indeed, when interviewed by the police Wayne said that he felt sick about what had happened, especially since he had by then discovered how badly the proprietor had been injured. They must be sentenced for their role in the incident but should not be treated as scapegoats for the violent conduct of others who cannot now be identified.

10. Mr Bellanto QC who appeared for Darryl submitted that in the circumstances of this case the fact that both were intoxicated was relevant to the degree of deliberation involved in the commission of the offences and as to whether the offences may have been out of character. I accept that submission though those factors must be considered in the context of the other evidence in the case.

11. More significantly, there was impressive evidence as to the prior good character of both men. Neither have been convicted of any other offences or have had any previous involvement in fights. On the contrary, the evidence establishes that both are normally even tempered and non-violent people whose previous conduct has been exemplary. Both have also assumed significant personal responsibilities. Darryl who was married a few days after the incident holds a Master's degree in engineering and though still only twenty-seven years of age is in a senior position with a major corporation. Wayne who is two years older than his brother manages the family engineering business. He has a relationship with a woman with two children but has deferred plans for marriage until the outcome of these proceedings.

12. As their counsel pointed out, these were not young hoodlums out "looking for a fight" but normally law abiding and non violent people who reacted on the spur of the moment to unforseen events; in one case, to being pushed out the door, and in the other case to a perception that his brother was being punched.

13. It was submitted that the proprietor had provoked the assault upon him by pushing Darryl. I am not satisfied that provocation has been established. Darryl had sworn at him and turned back towards him and he may have thought that he was about to be subjected to an assault. Furthermore, he was attempting to get Darryl to leave and was entitled to use reasonable force to eject him. However, I do accept that both of these young men may have genuinely believed that Darryl was being unjustifiably assaulted. Whilst their response was in each case quite disproportionate, I am satisfied that neither would have acted violently had it not been for that perception. Their conduct did not seem to have been prompted by mere resentment at being asked to leave. As I have mentioned, Wayne had actually offered to round up the participants and take them from the premises.

14. Whilst their conduct was plainly unjustified, I am required to take into account both their prior good conduct and the absence of any premeditation.

15. They were initially charged with more serious offences but indicated a willingness to plead guilty to the present offence as soon as the Crown indicated that it would accept such a plea in full discharge of any criminal liability arising from the incident. This factor must also be taken into account in their favour.

16. I accept that both are genuinely remorseful for their behaviour on the evening in question and am satisfied that there is little, if any, risk of either of these young men committing further offences of a similar nature.

17. It is also significant that serious criminal charges have hung over their heads for more than two and a half years and this has no doubt had a significant impact on both of them. As mentioned earlier, Wayne has put his plans for the future including his intended marriage on hold until after the proceedings have been resolved.

18. There was ultimately little in dispute. The Crown conceded that the defendants had otherwise been of good character and were genuinely remorseful. It made the point that they had not offered to plead guilty to the offences of assault occasioning actual bodily harm until it had indicated that it would accept such a plea in full discharge of any criminal liability arising from the incident but did not dispute their account of the circumstances in which those offences occurred or suggest that the other factors relied upon by the defence should not be taken into account.

19. Their counsel submitted that when due regard was paid to the cumulative effect of the mitigating factors to which I have referred it would be appropriate for me to dismiss the charges under s 556A of the Crimes Act 1900 in its application to the Australian Capital Territory. That section provides that the Court may take such a course if having regard to, inter alia, the character, antecedents, mental condition of the offender and the extent to which the offences was committed under any extenuating circumstances it is of the opinion that it would be inexpedient to inflict any punishment, to inflict any punishment other than a nominal punishment or that it would be expedient to release the person on probation. It was submitted that it would be a tragedy if young men who had previously been of such good character were to now have their record blemished by the recording of a criminal conviction.

20. I accept that neither of these young men are likely to commit any violent acts in the future and that there is little, if any, need for personal deterrence. On the other hand, I am unable to accept their counsel's submission that the need for general deterrence is wholly displaced by the unusual circumstances in which the offences occurred. In my opinion the need to protect people employed in the hospitality industry from violent conduct must be regarded as an important factor in sentencing for offences of this kind. Indeed, had it not been for the uncertainty as to who inflicted the more serious injuries upon the proprietor and for the other mitigating factors to which I have referred I would have concluded that there was no alternative to imprisonment.

21. In view of those mitigating factors the Crown did not press for sentences of imprisonment but conceded that it would be appropriate to release the defendants upon recognisances. Nonetheless, it submitted that it would be inappropriate to dismiss the charges under section 556A. I accept that submission.

22. It may be a matter of regret that people of otherwise impeccable character should have convictions recorded against their names, but they did commit the offences charged and in my opinion, even when all of the mitigating factors are taken into account, the gravity of those offences effectively precludes the application of s 556A. However, as the Crown conceded, it is appropriate to release the defendants upon them entering into appropriate recognisances.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 28 August 2001

Counsel for the Crown: Mr S Whybrow

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the accused (Darryl): Mr A Bellanto QC

Counsel for the accused (Wayne): Mr C Everson

Solicitor for both accused: Saunders & Co

Date of hearing: 27 August 2001

Date of judgment: 28 August 2001