Ex-boxer Kerrey James Foley’s assault at rock gig that knocked man out for nine minutes is ‘confronting’: court

Footage of an ex-boxer’s assault at a Sydney rock gig which left a man knocked out for nine minutes has been described as “confronting” in court, as the case hits a fresh snag. Kerrey James Foley, 37, was “windmilling” towards a 55-year-old at a rock gig at the Label nightclub in Sydney’s Northern Beaches on March 9 last year when he landed a hit to the older man’s head. The man was knocked out for nine minutes and appeared to be unconscious before he hit the ground, a court was previously told. The victim spent nine days in hospital following the assault, suffering skull fractures and other significant head injuries including ongoing headache pain, vertigo, dizziness, and hearing loss in his left ear. He continues to see a physiotherapist to assist with his imbalance. Judge Jane Culver earlier told the court she was struggling to think of a more serious case of assault occasioning actual bodily harm in 20 years. “The incident has left the victim, even 18 months after the assault, with very bad balance and vertigo,” Judge Culver said. “He finds himself searching for words in everyday conversation, and slurring his words at times, which is what he describes a very frustrating experience.” Mr Foley pleaded guilty to one count of assault occasioning actual bodily harm. In summing up the details of the case on Tuesday, Judge Culver called CCTV footage of the assault, earlier played to the court, as “absolutely confronting”. The footage is expected to be released by the court next month. Mr Foley was due to be sentenced at the Darlinghurst courthouse in Sydney’s CBD on Tuesday, however the matter was delayed to determine whether home detention conditions might be suitable if he was sentenced to an Intensive Correction Order (ICO). An ICO is a term of imprisonment served in the community. Judge Culver on Tuesday warned him there was still no guarantee he would avoid jail and be given an ICO. “Do not (point) to this as some sort of understanding that you will not be going to jail. I just don’t know yet. I need, as a matter of law, to have all the information,” Judge Culver said. “There will be a custodial sentence of some sort, that’s the most I can say at this stage.” Judge Culver earlier indicated Mr Foley would likely be served a sentence of 22 months imprisonment, which gives rise to the consideration of an ICO. His bail conditions were varied on Tuesday to place him on house arrest while awaiting sentencing, which was listed for November 21. It follows two sentencing adjournments last month. Court documents earlier revealed Mr Foley and the 55-year-old, who did not know each other before the night, both appeared intoxicated and embraced and talked multiple times over the course of the night. They appeared to be “jostling and dancing” together before the assault, with Mr Foley at one point “windmilling” his arms and advancing towards the man. Judge Culver earlier said there appeared to be a “shift” in the former boxer’s behaviour right before the “pretty skilful punch”, delivered with an “extreme degree of force”. “A professional boxer, even with a traumatic brain injury, would understand the degree of force involved in that movement, particularly where it’s a departure from the earlier conduct of the offender whilst he was adopting a boxing stance,” Judge Culver said. Judge Culver accepted the Crown’s submission that Mr Foley was not merely dancing when he was spotted on CCTV shadow-boxing in the lead up to the assault, a point earlier rejected by the defence. Mr Foley’s lawyer Murugan Thangaraj SC earlier told the court his client was “deeply upset” and “cursing himself” in the immediate aftermath of the hit, burying his head in his hands and asking himself “f--k f--k f--k, what have I done?” afterwards. However Judge Culver said this evidence of remorse was equally consistent with “someone realising they’ve done something terrible and are in trouble”. Judge Culver previously said she could not say beyond a reasonable doubt that Mr Foley had intended to inflict harm despite an intent to make physical contact with the older man. The court earlier found, on the balance of probabilities, that Mr Foley has some sort of traumatic brain injury with resultant and declining cognitive impairment, which would be taken into account in sentencing.