R v Mendelow (Unreported) NSWDC per Flannery DCJ

In this matter Greg Walsh appeared for Jason Mendelow who was a security guard employed at the Ivy Nightclub in Sydney.

Jason Mendelow together with Mr Fenukitau and Mr Ntaras pleaded guilty in the Local Court to a charge of assault of Nicholas Barsoum in company and caused him actual bodily harm.

At 1.30am on Sunday 28 August 2011 the victim was celebrating a friend’s birthday at the Ivy Bar.  He was approached by his ex-girlfriend who hit him in the face before turning and walking off.  He grabbed his former girlfriend and was then grabbed by a security guard at the Ivy who told him he should not act that way and he should leave.  He attempted to argue.  The victim emerged from a lift on the ground floor and was followed down Ash Street by two security guards from the Ivy.  He was struck to the side of the face but did not see who had hit him as he was walking from Ash Street into Angel Place.  It was not alleged that Mr Fenukitau had any involvement in the initial assault upon the victim.

The victim spoke to friends on his mobile phone and these friends decided to return to the Ivy via Ash Street to confront the security guards.  The victim walked up to Mr Fenukitau and Mr Fenukitau was struck to the side of his face by the victim which caused a cut to the upper cheek near the eye.  Mr Fenukitau and another security guard then restrained the victim.

Mr Mendelow arrived and held friends of the victim back from approaching Mr Fenukitau and the victim.  Security guards restrained the victim.  The victim was dragged down a flight of stairs by a security guard.  He was picked up and placed on a stool opposite the security office.

Mr Fenukitau who had received some treatment for his eye approached the victim and punched him to the head with his right hand and then walked back to the security office.

Mr Ntaras approached the victim when he was seated on the chair and punched him twice in the groin area.  At this time Mr Mendelow stood opposite the victim with another security guard Mr Hendra.  Mr Hendra walked from the security office and kicked the victim to the head, upper body with his right foot as the victim sat on the stool.  Mr Ntaras then kicked and punched the victim and pulled him forward off the stool before kicking him twice.  Whilst Mr Ntaras was assaulting the victim, Mr Fenukitau walked form the office and approached the victim and punched him.  As the victim hunched over after this punch, Mr Ntaras approached the victim and kneed him twice.

The force of these blows caused the victim to fall off the stool.  As the victim crouched on the ground Mr Mendelow approached him and kicked him in the head with his left foot.

In submissions on behalf of Mr Mendelow, Greg Walsh urged the court to accept that Mr Mendelow’s behaviour was an example of human frailty rather than one of him and veracity.  Mr Mendelow was not actively involved in the incident upstairs and it was submitted that Her Honour could not be satisfied beyond reasonable doubt that Mr Mendelow threw the victim down the stairs.  The victim was acting violently as he was being escorted down the stairs, swearing and threatening security guards.  Her Honour’s principle concern would be what happened in the basement.

The Crown submitted that the conduct involved was of the worst category of offences as Mr Mendelow was employed to uphold the safety and security of patrons and staff.  The offence occurred in the company of co-offenders.

Her Honour was not satisfied beyond reasonable doubt that the victim was thrown down the stairs.  The CCTV footage did not assist.  In respect of Mr Walsh’s submission, Mr Mendelow ought to be sentenced on the basis of what he did and not what Mr Ntaras did.  Her Honour referred to the observations of Chief Justice King in R v Brougham (1986) SASR 187 at 191 where the Chief Justice said:

The true meaning of the provision emerges from the authorities just cited.  A person commits a robbery or an assault with intent in company, where that person participates in the robbery or assault, together with others, in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim.  It is not necessary that more than one participant actually strike or rob the victim.  It is sufficient that the accused and or more other participants be physically present for the common purpose of robbing or assaulting with intent and – physically participating if required.

Her Honour referred to the observations of Kirby J in R v Button (2009) NSWCCA 159:

What emerges from these cases? A number of propositions can be stated:

First, the statutory definition (s61J(2)(c)) requires that the offender be “in the company of another person or persons”. Secondly, the accused and such person, or persons, must share a common purpose (either to rob, or as here, sexually assault). Thirdly, the cases appear to assume that each participant is physically present. Fourthly, participation in the common purpose without being physically present (for example, as a look-out or as an accessory before the fact) is not enough.  Fifthly, the perspective of the victim (being confronted by the combined force or strength or two or more persons) is relevant, although not determinative. If two or more persons are present, and share the same purpose, they will be “in company”, even if the victim was unaware of the other person.

Her Honour was satisfied beyond reasonable doubt that Mr Mendelow was in company with Mr Ntaras when the latter assaulted the victim and therefore was responsible not only for his own assault, but also for Mr Ntaras’ assault on the victim.

Her Honour was not satisfied beyond reasonable doubt that all of what Mr Ntaras did was attributable to his wanting retribution for the victim assault on Mr Fenukitau, although she was satisfied beyond reasonable doubt it commenced for that reason.  She was satisfied that the reason for the prolonged nature of the attack by Mr Ntaras upon the victim was the extreme irritation he and Mr Mendelow felt towards the victim for his temerity and talking back to his attackers.  In circumstances where the victim had assaulted one their colleagues.

 Her Honour accepted that though Mr Mendelow’s crime was a very serious one, it was not in the worst category.

Her Honour was satisfied that the victim had suffered substantial harm.

Her Honour in dealing with Mr Mendelow’s subjective case noted that he had no prior criminal history and had a good work history and in particular excellent reputation as a security guard.  There was no pattern of anti-social conduct according to Dr Olav Neilssen.

Greg Walsh submitted that the offence was not planned or organised and there was no likelihood of any re-offending and his prospects of rehabilitation were good and he was remorseful.

Her Honour footnoted the sentence imposed by Berman DCJ upon Mr Hendra who had pleaded not guilty to assault occasioning actual bodily harm in company, but guilty of common assault after trial.  Mr Hendra was sentenced for kicking the victim to the stomach or chest whilst the victim was sitting on the stool.  Mr Hendra had given evidence in his trial that he had been acting in self defence.  His Honour was satisfied beyond reasonable doubt that if the victim had spat blood it was only in response to one of the security guards spitting at him.  Mr Hendra was found His Honour not only to lack remorse but that “his attitude towards his criminality” is remarkable, as he saw himself the victim in the matter.

His Honour imposed a sentence of 18 months imprisonment with a non-parole period of nine (9) months.

Mr Mendelow was convicted and sentenced to a term of imprisonment comprising a non-parole period 12 months and a total sentence of 24 months.

Mr Ntaras was convicted and sentenced to a non-parole period of 14 months and total sentence of 27 months.

Mr Fenukitau was convicted and was assessed for an Intensive Correction Order and subsequently sentenced on that basis.