Security Guard Sentenced for Assault Causing Significant Injury

A security guard was sentenced to imprisonment for 18 months with a non-parole period of 9 months for assaulting a victim, causing significant injury, in a nightclub setting.

District Court New South Wales

Medium Neutral Citation: R v [NAME] [2012] NSWDC 198 Hearing dates: 26 October 2012 Decision date: 16 October 2012 Before: Berman SC DCJ Decision: Sentenced to imprisonment for a period of 18 months with a non-parole period of 9 months. Catchwords: CRIMINAL LAW - Sentence - Common assault - Security guard - Vulnerable victim - Lack of remorse - Night club Category: Sentence Parties: The [NAME]: [NAME] - The [NAME] - [NAME] Director of Public Prosecutions File Number(s): 2011/288740

SENTENCE 1HIS HONOUR: Security guards at licensed premises are part of the solution to the problem of drunken violence, but, as the events which led to the conviction of [NAME] on a charge of assault have demonstrated, security guards can also be part of the problem. 2Mr [NAME] went to the [NAME] one evening. No doubt he was hoping to have a good time. In the early hours of the following morning he was punched by an [NAME]. He did nothing to provoke this. Quite understandably he got cross and grabbed his [NAME] as she ran away. This led to the intervention of security guards. They told him to leave and escorted him out of the premises. Security camera footage showed what happened. [NAME] remonstrated with the security guards, wagging his finger at them. One might be forgiven for thinking that most of us in his position might have done something similar. [NAME], I repeat, did nothing to provoke the attack upon him by his [NAME]. He was entitled to be at least disappointed at the situation which saw him being ejected from the [NAME] in those circumstances. It is important to understand that there is no suggestion at all that [NAME] was in any way violent towards those who were escorting him off the premises. Despite that, one of the security guards, probably a man by the name of [NAME], punched him in the face as he was leaving. This was not captured on CCTV but no doubt it occurred. This punch caused a significant injury; it caused [NAME] to be bleeding heavily from his lip, an injury which later required stitching in hospital. [NAME] sent a text message to his friends. They assembled outside the [NAME] and began walking towards the security guards, including the violent [NAME], who were controlling access to the [NAME]. The evidence of [NAME] and his friends was that they wished merely to find out which security officer had hit [NAME] and make a complaint. 3What happened thereafter is captured on closed circuit television. It is difficult to decide whether violence first came from the security guards or [NAME] and his friends but given what happened to [NAME] later it simply does not matter. Within a very short space of time the security guards had isolated [NAME]. He was then set upon by a number of guards upstairs outside the [NAME] where he was beaten savagely. He was kicked, he was punched and he was stomped on. Many people were passing by and many people gave evidence about what they saw. Two witnesses recorded footage on their mobile telephones. Unfortunately one of those witnesses accidentally deleted what she had recorded before it could be shown to police. But the jury and I saw the other footage. It showed significant violence being inflicted on a man who was held down and helpless. The distress on the part of the passersby who were watching this occur was obvious. It was appropriate. The conduct of staff from the [NAME], including people who were not charged, appeared to be concerned more with preventing passersby seeing the violence than stopping the violence. 4I want to emphasise that this [NAME] was not responsible for anything which occurred upstairs outside the [NAME]. I mention these facts because of the condition [NAME] was in when the security guards decided to take him downstairs so that he could be beaten further. (I have no doubt that that was the intention of at least some of the security guards who dragged [NAME] downstairs.) 5A lot of witnesses gave evidence of seeing [NAME] as he was taken from upstairs, where he had been beaten, through the doorway to the area downstairs. One of those witnesses described [NAME]'s face being swollen so that it resembled a balloon. I will quote at some length what he said, because it is important to know what [NAME] looked like when [NAME] kicked him a little while later. This is what the witness said: "His face was like, I've never seen anything like his face. He was just, I couldn't even see his eyes, like it was like somebody literally drew a line, like just a thick line on his face and that was his eyes. Like, he was just like a balloon. His face was like, blown up like a balloon and there was blood all over him. I couldn't even recognise what nationality he was, anything." 6The CCTV footage taken from downstairs in the basement reveals a man who had been beaten so much he was barely able to sit upon a stool. He was covered in blood and had already been severely mistreated by the time [NAME] decided to get involved. So what did [NAME] then do to this helpless [NAME] man? The footage clearly showed [NAME] kicking him whilst he was seated on a stool. [NAME] kicked him once, apparently to his stomach or chest area. It is this kicking which forms the basis of the charge for which he must now be sentenced. [NAME] was beaten by others as well after [NAME] kicked him and [NAME], who was secondincharge of security that night, and nearby, did nothing to intervene. 7It was the evidence of [NAME] at his trial that he had been acting in self defence when he kicked [NAME]. It was his evidence that as he approached [NAME] to assess him for the purposes of firstaid, [NAME] spat blood at him. [NAME] said that he reacted to defend himself against further similar actions by [NAME]. 8Not only do I, consistent with the jury's verdict, reject the idea that that kicking was in self defence, I am satisfied beyond reasonable doubt that if [NAME] did spit blood it was only in response to one of the other security guards spitting at him, as [NAME] well knew had occurred. [NAME] was not acting in defence of himself or anyone else. He was an aggressor, a person who had lost his temper, at least partly because [NAME] had had the temerity to become involved in a violent incident with [NAME], an incident which had left [NAME] with a swollen eye. [NAME] had no thought of helping [NAME] that night, he simply wanted to help his fellow security guards. 9Let me complete the story as regards [NAME]. Having been hit by his [NAME], having been ejected from the [NAME], having been punched by [NAME] on the way out, having been beaten by a gang of security guards upstairs and a gang of security guards downstairs, when the police arrived the security guards told police that [NAME] was an [NAME] and he found himself arrested. He did not have a good night. Fortunately it was not long before police realised their mistake and began arresting the real criminals, the security guards. 10It is important to remember that [NAME] was not responsible for many actions of other security guards that night. In particular, he was not involved in any of the violence upstairs nor was he acting as part of a joint criminal enterprise with any of the offenders downstairs. But in kicking a man who was already suffering from significant injuries is a very serious act of violence indeed. As I began these remarks on sentence, [NAME] was in an occupation where he should have been controlling violence for the benefit of others, not inflicting it for his own purposes. 11Part of the submissions today have addressed the issue as to the factual basis on which I should sentence [NAME]. [NAME] was found not guilty of an offence of assault occasioning actual bodily harm in company. Given the clear evidence that [NAME] had suffered actual bodily harm downstairs I am prepared to proceed on the basis that the jury were not satisfied beyond reasonable doubt that [NAME] was in company when he inflicted the violence that he is responsible for on [NAME]. But that does not mean that I should ignore what occurred afterwards. [NAME], as I said, was second in charge that night. Having kicked [NAME], no feelings of remorse came upon him. He did not do a single thing as [NAME] was savagely beaten again. He looked after [NAME] and [NAME], ignoring what was happening to [NAME] a short distance away. 12This lack of remorse has continued to this day. Indeed, [NAME]'s attitude towards his criminality is, I have to say, remarkable. He sees himself, it appears, as the victim in this matter. He said to a psychologist that the case was a political one and not treated as a normal incident. He questioned whether the police officer in charge of the case had political allies and was being primed for bigger things. He accurately told the author of the presentence report that he felt no remorse. This, as I said, is remarkable. [NAME] committed a very serious crime, one he simply fails to acknowledge. 13Mr [NAME] was born in New Zealand. He is now thirty five years of age. His upbringing was difficult, at least from the age of about eleven, when his father began to become increasingly violent towards him. Things got so bad that he left home at the age of fifteen, specifically to get away from his father's violence. He retains the support of his mother who is currently in the process of divorcing his father. He has no contact with his father. He is in a relationship with a [NAME] who supports him and, he has had other relationships in the past. 14He left school about the age of seventeen and has being an industrious worker since then. He began working as a fisherman, then qualified as a personal trainer, work which led him eventually to act as a security guard. 15A number of testimonials were tendered to me today and they all speak very highly of [NAME]. These are people who know [NAME] well and they all describe the actions of [NAME] as being out of character. At trial [NAME] gave evidence of the work that he had done and his ability to diffuse potentially violent situations without resorting to violence. The testimonials also speak about [NAME]'s good works, particularly at the time of the Brisbane floods of 2011 when [NAME] gave up his own time and organised other people to drive to Queensland and assist people who had been harmed through the floods. There is obviously much that [NAME] is entitled to be proud of. 16He has no criminal convictions, and it is one matter to get to the age of sixteen or seventeen without committing a crime but the fact that [NAME] is now being dealt with for his first offence at the age of thirty five says a lot about his underlying good character. It makes his decision to commit this offence and the lack of remorse for it even more puzzling. 17Of course, a proper assessment of the objective criminality of [NAME]'s conduct is required. It was a single blow but the video evidence showed that it was a significant one and as I have repeatedly said, it was a blow inflicted on a man who was already exhibiting the signs of terrible injuries. To say that [NAME] was defenceless is an understatement. Of course there is no evidence that the kick, for which [NAME] was responsible, caused any actual injury, something that [NAME] who appears for [NAME] today relies on. It is, however, not a matter of mitigation that the more serious offence of assault occasioning actual bodily harm was not committed. 18Of course this offence was not planned, at least as far as [NAME] was concerned. He did not go to work that evening planning on inflicting violence upon someone and his decision to kick [NAME] appears to have been made only fairly shortly before he inflicted the blow. 19The question concerning the likelihood that [NAME] will commit offences in the future is not an easy one to determine. In the absence of a plea of guilty and in the absence of any expression of remorse, there is something to be said for the proposition that there is no evidence to suggest that [NAME] will act any differently should a similar situation arise in the future. However, I am not going to sentence [NAME] on that basis. The sentence I am about to impose will act as a personal deterrent to him and in any case it is clear that [NAME] will be unable to work as a security guard in the future. 20Sentences of imprisonment are very much sentences of last resort and whilst sentences for common assault rarely involve full time custody, the maximum penalty reserved for a case in a worst category of offending does involve imprisonment. This is one of the worst types of common assault that it is possible to contemplate. I trust that it is not necessary for me to repeat again the circumstances of this offending in order to explain why it is that I have made that finding. 21I am satisfied that a fulltime custodial sentence is required. This will be [NAME]'s first time in prison and so I will make a finding of special circumstances in his favour. 22The [NAME] is sentenced to imprisonment. I set a non-parole period of nine months to date from today, 26 October 2012. It will expire on 25 July 2013. I set a period of eligibility for parole of nine months, making a head sentence of eighteen months. [NAME] is to be released to parole on 25 July 2013.

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