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SCC 21507228








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DTI HIS HONOUR: Mr Wicks, you have pleaded guilty to the first count on the indictment. That is that on 14 February 2015 you unlawfully assaulted Desmond Campbell. You have acknowledged that the assault involved some circumstances of aggravation. First, that Mr Campbell suffered harm. Second, that he was unable to effectively defend himself due to his situation. It is an offence under the Criminal Code that carries a potential period of imprisonment for up to five years.

I understand that you spent one day in custody after you were arrested in relation to this offence, but since then you have been on bail and I assume that you have complied with your bail conditions. Most of the circumstances concerning the offence are set out in the agreed facts document which I have been provided with and I will read those onto the record.

Sometime prior to 3:00 am on 14 February 2015 you had been at the Throb Nightclub in Darwin. At about 3:00 am you left the nightclub and you met with two of your friends as you left the nightclub. The three of you began to walk away from the nightclub, crossing Smith Street. As you did so you saw an intoxicated Aboriginal man asleep on the front step of an office complex. The three of you then began to take photographs of the sleeping man and you also posed alongside of him for the purpose of taking those photographs.

Another group of people consisting of three women and two men, one of whom was Mr Campbell, also had left the Throb Nightclub. They crossed Smith Street intending to go to McDonald's to get something to eat. They approached you and your friends and they challenged you in relation to what you were doing to the sleeping man. Namely, taking photographs and posing with the sleeping man.

There was then a verbal argument between you and one of your friends and two of the women in the other group. That argument escalated to a point where there was some pushing and shoving between you and one of the women in the other group. At about that time Mr Campbell took some photographs of you and your friends and you saw that and you demanded that Mr Campbell delete the photographs. After Mr Campbell had ceased taking the photographs there was still some argument between you and one of these women in the group.

Mr Campbell walked away from the two of you and he started to cross Smith Street back in the direction of Throb Nightclub in order to seek assistance from bouncers at the nightclub in case the pushing and shoving escalated. You then ran after Mr Campbell as he was crossing Smith Street and a couple of the people in the other group — I think it was two of the women in the other group — called out to Mr Campbell warning him that you were approaching him.

Mr Campbell turned around towards you and you struck him once to the right eye with your fist. The force of your blow was such that it knocked Mr Campbell to the ground. You then stood over Mr Campbell while he was on the ground.

Mr Campbell feared that you were going to continue to strike him and he was fending you off with his feet. You then left Mr Campbell. You were arrested at the scene a short time later, having been held by some security officers.

As a result of the assault, Mr Campbell sustained a split eyebrow that required medical treatment including three stitches. He also had bruising to his right eye region which lasted for about a month. Mr Campbell has provided a victim impact statement dated 15 February 2015, the day after the assault. In the impact statement he talks about his injuries. Specifically, a cut to the top right eye requiring two stitches, a black eye, bruised hip, bruised face, cut to the right elbow, sore nose, neck pain, stiff neck and a cut left knee.

He was also asked about the emotional impact of what you did to him. He said he is nervous about being in public, he is nervous about crowds, he is nervous of being around people consuming alcohol. He said that he felt a strain on his relationship with his partner and friends. He feels sad that it happened. He felt angry and upset that it had happened. He said that he had to take some days off his recreational leave to recover from his injury. He said that he had to purchase painkillers and bandages and throw out and replace some clothes that had been covered by the blood as a result of the injuries.

So, clearly, what you did has had an effect upon him. Not so much the physical effect, but I understand the emotional effect. We do not know whether that still lasts, but I have heard evidence from him and, for all intents and purposes, it seems that he has managed to get over it. Nevertheless they are things that I take into account.

You do not have any criminal history at all which is obviously a very good thing.

You are therefore entitled to lenience that is extended to people with no criminal history. I will say a bit more about that later.

What you did was bad for a number of reasons. First, Mr Campbell was walking away from you and you actually ran after him to attack him. So it was not just a spur of the moment reaction on your part.

Second, he was actually walking away to seek help from other people in case the arguments between you and these other people escalated.

Third, had it not been for the warning that had been yelled out by his friends, Mr Campbell may not have even seen the punch coming, but in any event it seems that he did not have much opportunity to defend himself.

Fourth, the punch was a forceful punch strong enough to force him to the ground.

Fifth, after he was on the ground it appeared that you were continuing to attempt to at least threaten Mr Campbell and that he felt it necessary to fend you off with his feet.

I take into account, on the other hand, a number of the points that Mr Read made. You acknowledge that what you were doing with the Indigenous man was wrong, but as Mr Read points out, that was foolhardy mucking around which you now recognise you should not have done.

Mr Read also reminded me that before you did apparently lose your temper and run over and hit Mr Campbell you had felt provoked by a number of things, including the actions of Mr Campbell and his friends coming over abusing you, calling you racist for taking photographs of this man and then there was shoving and pushing by at least one of these ladies. I accept all that and I accept that you gave evidence to the effect that your prime concern was to get the photographs deleted off Mr Campbell's phone.

I also accept as Mr Read points out that the harm to Mr Campbell was fairly minimal in terms of physical harm, but as he acknowledges, perhaps that is lucky because it could have been much worse as sometimes happens. I consider that your offending was between the lower and middle level of seriousness for this kind of offence.

Mr Read has told me about your background and he has pointed out that you were 19 years old at the time. You were born in, and you grew up in Darwin. You have got two brothers and you have been brought up by your mother since you were only a few months old because your father had left when you were that young. You are still living at home with your mother and your step-father and I think with your grandparents, but certainly it is clear that you have the ongoing support of all of those four people and I have noticed right from day one all of those four people have been present to support you during this trial.

Mr Read also pointed out that these proceedings put your life on your hold and they have been disruptive and that is understandable, particularly since this trial has been hanging over your head for some 18 months or so now. You completed Year 11 at Casuarina Secondary College and you left school about halfway through Year 12 in 2013 and got work as a telecommunications cabler.

You began a traineeship in telecommunications with Telstra, but you found that difficult because that involved you having to travel to Perth and attend six week study blocks at Murdoch University. Mr Read points out, though, that you do have the intellectual ability to engage in further education and further training.

As Mr Read has pointed out, you worked with Golden Glow Nursing from about 2014 as a personal care assistant working with mental health patients. That involved you working 12 hour shifts assisting the patients there in their residential environment, helping with their cooking, helping them to attend appointments and so on. In fact, you worked there from May until about November that year. Since then you have done various casual jobs such as car detailing and you are not shy of working.

Mr Read pointed out that you have not done what a lot of young people do and taken the easy way out and gone onto the dole. You do have plans for the future which may include you getting into the painting business industry with your father because you have apparently already got skills in relation to that.

I have been provided with the report by the Department of Correctional Services which was compiled as the result of a discussion that an officer had with you this morning and amongst other things, it seems that you told the Probation Officer that you were taking photographs of this Indigenous man sleeping to portray 'how good this guy's night was'. You will appreciate that sometimes things are not seen that way and particularly in places in Darwin, one has to be very careful about taking photographs of people that might end up on the front page of the NT News or on Facebook or somewhere else.

But you have acknowledged to the Probation Officer that what you did was insensitive towards a sleeping person. You regretted your involvement and you said, 'I should have told them to leave him alone.' So they indicate to me that you recognise that what you did was insensitive and I think that you have learnt a lesson from that and that you are unlikely to engage in that again, but as I said, you are not being sentenced at all for that. It just shows some insight that I guess had you not done that in the first place, none of this trouble would have happened.

The report also indicates or suggests that you do not have any issues with drugs or alcohol and the Probation Officer also notes that you are well supported by your parents and says that you are suitable for supervision if I am to order that.

I also have the benefit of references from the three people whose names I mentioned and all of those speak very well of you. They include Ms Herridge the administration officer of the Wagaman Primary School who has lived in your household for most of your life since you were about three months old. She too is from Papua New Guinea which is where your step-father is from.

She says you 'have only ever been kind and respectful to all my family members.' She considers you as part of her family. She says you have grown up to be a kind, honest and respectable young man that would do anything for anyone.

She said that, in her opinion, you are shattered by the charges that you are facing because they are out of character for you.

The reference from Ms Rosas who has been a family friend of your family for some 30 years talks about the fact that you have been raised in a loving, supportive family environment. She says you have always been respectful to her and other family members. As far as she is aware, you have never given your mother any serious cause for concern.

Then the third reference was from Ms Parnell who is an Executive Officer of Aboriginal Affairs. She also has known you since you were about three years of age.

She regards you as a nephew. She says you are a sensible young man and you are a young man of good morals and character. She too says that you have been upset and sorry about what has happened and that you are positive about getting back into the workforce once all of this is over.

So all of those are good things and, indeed, unlike many of the people that come before the Court, they indicate to me that you have very good prospects of rehabilitation and that what you did on this particular night was a one-off and out of character.

You have pleaded guilty to this offence and I accept that you now recognise that what you did was wrong in striking Mr Campbell in the way that you did and I propose to discount the sentence that I would otherwise impose by 25 percent. I take into account your youth. I think you are now 21, but you were 19 at the time and, as I say, your good prospects of rehabilitation.

Under the Sentencing Act we Judges have to take into account a number of things. They include punishment because you have to be punished for what you did.

They include your rehabilitation, particularly at your age. The cases have stressed the importance of a Judge trying to sentence a person to help them get back into the normal lifestyle and workforce and community and, in fact, there was a passage from a New South Wales decision, quoted in Mr Murphy's written submissions. I will just read it onto the record.

It is a passage that relates to young offenders such as you and in that particular

case of Azzopardi v The Queen it says:

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