District Court New South Wales

• Medium Neutral Citation: R v Hendra [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 Crown; Menelaus Hendra
• Representation: Mr C Patrick - The Crown; Mr G Thomas - The Offender; Director of Public Prosecutions
• File Number(s): 2011/288740

SENTENCE

1 HIS 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 the offender on a charge of assault have demonstrated, security guards can also be part of the problem.

2 Mr Nicholas Barsoum went to the Ivy 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 exgirlfriend. He did nothing to provoke this. Quite understandably he got cross and grabbed his exgirlfriend 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. Mr Barsoum 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. Mr Barsoum, I repeat, did nothing to provoke the attack upon him by his exgirlfriend. He was entitled to be at least disappointed at the situation which saw him being ejected from the Ivy in those circumstances. It is important to understand that there is no suggestion at all that Mr Barsoum 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 Paul Fenukitau, 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 Mr Barsoum to be bleeding heavily from his lip, an injury which later required stitching in hospital. Mr Barsoum sent a text message to his friends. They assembled outside the Ivy and began walking towards the security guards, including the violent Mr Fenukitau, who were controlling access to the Ivy. The evidence of Mr Barsoum and his friends was that they wished merely to find out which security officer had hit Mr Barsoum and make a complaint.

3 What happened thereafter is captured on closed circuit television. It is difficult to decide whether violence first came from the security guards or Mr Barsoum and his friends but given what happened to Mr Barsoum later it simply does not matter. Within a very short space of time the security guards had isolated Mr Barsoum. He was then set upon by a number of guards upstairs outside the Ivy 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 Ivy, including people who were not charged, appeared to be concerned more with preventing passersby seeing the violence than stopping the violence.

4 I want to emphasise that this offender was not responsible for anything which occurred upstairs outside the Ivy. I mention these facts because of the condition Mr Barsoum 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 Mr Barsoum downstairs.)

5 A lot of witnesses gave evidence of seeing Mr Barsoum as he was taken from upstairs, where he had been beaten, through the doorway to the area downstairs. One of those witnesses described Mr Barsoum'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 Mr Barsoum looked like when Mr Hendra 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."

6 The 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 Mr Hendra decided to get involved. So what did Mr Hendra then do to this helpless young man? The footage clearly showed the offender kicking him whilst he was seated on a stool. Mr Hendra 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. Mr Barsoum was beaten by others as well after Mr Hendra kicked him and Mr Hendra, who was secondincharge of security that night, and nearby, did nothing to intervene.

7 It was the evidence of Mr Hendra at his trial that he had been acting in self defence when he kicked Mr Barsoum. It was his evidence that as he approached Mr Barsoum to assess him for the purposes of firstaid, Mr Barsoum spat blood at him. The offender said that he reacted to defend himself against further similar actions by Mr Barsoum.

8 Not 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 Mr Barsoum did spit blood it was only in response to one of the other security guards spitting at him, as Mr Hendra well knew had occurred. Mr Hendra 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 Mr Barsoum had had the temerity to become involved in a violent incident with Mr Fenukitau, an incident which had left Mr Fenukitau with a swollen eye. Mr Hendra had no thought of helping Mr Barsoum that night, he simply wanted to help his fellow security guards.

9 Let me complete the story as regards Mr Barsoum. Having been hit by his exgirlfriend, having been ejected from the Ivy, having been punched by Mr Fenukitau 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 Mr Barsoum was an offender 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.

10 It is important to remember that Mr Hendra 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, Mr Hendra was in an occupation where he should have been controlling violence for the benefit of others, not inflicting it for his own purposes.

11 Part of the submissions today have addressed the issue as to the factual basis on which I should sentence Mr Hendra. Mr Hendra was found not guilty of an offence of assault occasioning actual bodily harm in company. Given the clear evidence that Mr Barsoum had suffered actual bodily harm downstairs I am prepared to proceed on the basis that the jury were not satisfied beyond reasonable doubt that Mr Hendra was in company when he inflicted the violence that he is responsible for on Mr Barsoum. But that does not mean that I should ignore what occurred afterwards. Mr Hendra, as I said, was second in charge that night. Having kicked Mr Barsoum, no feelings of remorse came upon him. He did not do a single thing as Mr Barsoum was savagely beaten again. He looked after Mr Fenukitau and Mr Vacic, ignoring what was happening to Mr Barsoum a short distance away.

12 This lack of remorse has continued to this day. Indeed, Mr Hendra'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. Mr Hendra committed a very serious crime, one he simply fails to acknowledge.

13 Mr Hendra 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 young woman who supports him and, he has had other relationships in the past.

14 He 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.

15 A number of testimonials were tendered to me today and they all speak very highly of the offender. These are people who know the offender well and they all describe the actions of the offender as being out of character. At trial Mr Hendra 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 the offender's good works, particularly at the time of the Brisbane floods of 2011 when the offender 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 the offender is entitled to be proud of.

16 He 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 the offender 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.

17 Of course, a proper assessment of the objective criminality of the offender'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 Mr Barsoum was defenceless is an understatement. Of course there is no evidence that the kick, for which Mr Hendra was responsible, caused any actual injury, something that Mr Thomas who appears for the offender 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.

18 Of course this offence was not planned, at least as far as Mr Hendra was concerned. He did not go to work that evening planning on inflicting violence upon someone and his decision to kick Mr Barsoum appears to have been made only fairly shortly before he inflicted the blow.

19 The question concerning the likelihood that Mr Hendra 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 Mr Hendra will act any differently should a similar situation arise in the future. However, I am not going to sentence the offender 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 Mr Hendra will be unable to work as a security guard in the future.

20 Sentences 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.

21 I am satisfied that a fulltime custodial sentence is required. This will be the offender's first time in prison and so I will make a finding of special circumstances in his favour.

22 The offender 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. The offender is to be released to parole on 25 July 2013.

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Decision last updated: 01 November 2012