Author: Phillip Gibson
Downing Centre Local Court, Sydney
Represented by Solicitor: Phillip Gibson, Accredited Specialist Criminal Law
Our client worked as a security guard. One evening, four men approached the venue but were refused entry due to their high level of intoxication. The complained verbally and swore at the guard including making ethnic based remarks, and threatened to come back and shoot him and shoot his family.
The men then walked to a nearby 7-11 Store. One of the men remained outside and continued with the barrage of verbal abuse, taunting the guard to come and fight him. The guard was concerned for the welfare of the operator or the 7-11 store, and went to ensure everything was ok. CCTV footage showed the loudmouth drunk pointing in the direction of the approaching guard, before backing away from the doorway. His brother then exited the 7 – 11 Store and within a short time was face to face with the security guard, who punched the man one in the face, fracturing his jaw, requiring a plate and screws to be surgically implanted.
Self defence considered:
At the time the guard punched the man, he thought that it was necessary to do what he did in self defence. He thought that the man might punch or hit him. The CCTV footage revealed a gap of less than 2 seconds from the time the man left the store until he was punched. However, it was sufficient time for the guard to have taken some other action, such as backing away and calling the police. The man was not raising his fists or arms and there was nothing from the CCTV footage to suggest that he was about to attack the guard. If the guard’s reaction had been immediate, he may have satisfied both limbs of self defence. However, when viewed by the hypothetical objective bystander, the actions of the guard were not reasonable. He admitted to police that he was upset and angry that the men had taunted him about his ethnic background, skin colour and weight. The objective test of self defence could therefore not be made out. The client entered a plea of guilty.
But for the injury, the client had some prospects of being dealt with pursuant to section 10 Crimes (Sentencing Procedure) Act and having no conviction recorded. In his plea in mitigation, we were able to demonstrate genuine remorse, empathy for the victim’s injuries, total rehabilitation, good character, no prior convictions and a genuine belief that it was necessary to take the action he took, conceding however that it was not reasonable in the circumstances. It was also submitted that the police action in taking steps to revoke his security licence meant that he had to retrain and locate work. This amounted to a form of extra curial punishment. The Magistrate agreed with the submissions, and noted that but for the extent of the injury the result may have been different. The client was placed on a good behaviour bond pursuant to section 9 Crimes (Sentencing Procedure) Act for a period of 12 months. Her Honour also noted recent cases in the media where a single punch to the head had resulted in persons either dying or with grave injuries in hospital.