Director of Public Prosecutions v Cloutt-Oliver

[2021] NSWLC 7

Local Court

New South Wales

Medium Neutral Citation:

DPP v Cloutt-Oliver [2021] NSWLC 7

Hearing dates:

23 April 2021

Date of orders:

29 April 2021

Decision date:

29 April 2021

Jurisdiction:

Criminal

Before:

Stewart LCM

Decision:

Imprisonment for 2 years 3 months with non-parole period of 17 months

Catchwords:

CRIME – Violent offences – Unprovoked attack – Demand property with menaces – Vulnerable victim – Assessing objective seriousness – Conditional liberty – Consideration of mental health issues – Claims of drug affectation – Youth of offender – Totality – Partial accumulation – Special circumstances

Legislation Cited:

Crimes (Sentencing Procedure) Act ss 3A, 5, 21A, 27, 44(2B), 53A, 66

Children (Criminal Proceedings) Act 1987 ss 15, 15A

Crimes Act 1900 ss 58, 59, 99

Mental Health (Forensic Provisions) Act s 33

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 s 4(1)

Cases Cited:

Aslan v The Queen [2014] NSWCCA 114

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194

Greaves v R [2020] NSWCCA 140

Locke v R [2010] NSWCCA 296

McCullough [2009] NSWCCA 94

Muldrock v The Queen [2011] HCA 39

Ngati v The Queen [2015] NSWCCA 125

R v Merrin [2007] NSWCCA 255

R v Tuala [2015] NSWCCA 8

Category:

Sentence

Parties:

Director of Public Prosecutions (Prosecution)
Zac Cloutt-Oliver (defendant)

Representation:

Mr M Belcher, solicitor Office of the Director of Public Prosecutions
Mr C Irani, solicitor (for defendant)

File Number(s):

2020/204333, 2020/112044, 2020/115894

Publication restriction:

Pursuant to section 15A Children (Criminal Proceedings) Act paragraphs 23, 24 and 27 have been redacted.

REMARKS ON SENTENCE

1. The violent attack upon a vulnerable and defenceless man who had recently undergone surgery for brain cancer, sitting in a wheelchair with a catheter in his arm, smoking a cigarette outside a public hospital, after he did not yield to a menacing demand for a cigarette, is morally repugnant, repulsive, and totally inconsistent with civilised society.

2. I understand that there may well be media interest in such a matter, and the court of public opinion will not, and should not be muzzled. However, I must, and will sentence this offender in accordance with proper and established sentencing principle.

The Charges and the Pleas

3. The offender Zac Cloutt-Oliver pleaded guilty to Assault Occasioning Actual Bodily Harm (AOABH) contrary to section 59 of the Crimes Act 1900, Resist Police in the execution of duty contrary to section 58 of the Crimes Act and Demand Property with Menaces with intent to steal contrary to section 99(1) of the Crimes Act.

4. The guilty pleas were entered on 2 March 2021 upon a strictly indictable charge of Aggravated Assault with Intent to Rob using Corporal Violence being withdrawn. Accordingly, the offender is entitled to a discount of 25% off the penalty that might otherwise be imposed.

Maximum Penalties

5. The maximum penalty for both Assault Occasioning Actual Bodily Harm and Resist Police is 5 years imprisonment, and for Demand Property with Menaces with intent to steal is 10 years imprisonment.

6. In Greaves v R [2020] NSWCCA 140 at [66], Cavanagh J with Hoeben CJ at CL and Hamill J agreeing, said:

[66]“…..the sentencing principles applicable to the process of sentencing remain the same in the Local and District Courts……

The Magistrate was required to assess the appropriate sentence having regard to the prescribed maximum penalty for each offence rather than any jurisdictional limit. The jurisdictional limit only becomes relevant if the assessment leads to a sentence greater than the limit.”

7. The principle in Greaves is clear. The Local Court in sentencing an offender is no different to the way in which the District Court should sentence an offender, subject to the jurisdictional limit if the sentence that should be imposed for an individual offence exceeds that limit.

8. The legislated maximum penalty for each offence far exceeds the jurisdictional limit of the Local Court. Although for example the maximum penalty is 10 years for Demand Property with Menaces with Intent to steal, the jurisdictional limit is 2 years, notwithstanding the appropriate penalty might far exceed the jurisdictional limit.

9. The Local Court cannot impose a sentence in excess of 5 years by way of aggregate sentence, and even less in circumstances where 2 or less offences cross the section 5 threshold: see section 5 Crimes (Sentencing Procedure) Act 1999.

10. A sentence exceeding the statutory limitations imposed on the Local Court can only be achieved if the matter proceeds on indictment in the District Court. These offences are being dealt with summarily in the Local Court.

Agreed Facts

11. A set of agreed facts signed by the solicitor for the Office of the Director of Public Prosecutions was tendered. Mr Irani for the offender said that it was not his practice to sign agreed facts on behalf of an offender, however put on the record that the facts were agreed.

12. On 10 July 2020 the victim Kieran Fisher was an in-patient at St Vincent’s Hospital. The victim was undergoing treatment for brain cancer and as a result previously had a number of stents inserted that travelled from his brain to his abdomen and assisted with draining cerebrospinal fluid. He was admitted to the hospital on 7 July 2020 because of a suspected infection of the stents. During his hospital stay, the victim had a PICC (peripherally inserted central catheter) inserted into his arm.

13. The offender, Zac Cloutt-Oliver had visited another patient at the hospital on the morning of 10 July 2020. Security removed him from the hospital grounds as he was abusive towards the staff.

14. At about 10:17am that day, the victim used a wheelchair to take himself outside of the hospital to Victoria Street where he began smoking a cigarette. The offender, who was still outside the hospital grounds approached the victim and said, “Oi, cunt, give me a cigarette.” The victim said, “No.” The offender then said, “Do you think I’m fucking joking?”

15. The offender then moved towards the victim with his arms in front of him. He grabbed the victim’s clothing and started shaking him violently. A witness heard the offender say, “I will kill you”.

16. The offender then used his fists to punch the victim, including more than one punch to the stomach in a ‘one-two’ motion. The victim slid down from where he was sitting and the offender kicked him in the stomach more than once. The offender then took hold of the victim’s PICC line, which was placed above the victim’s left inner elbow, and tugged on it a number of times. Whilst he was being assaulted, the victim yelled “Stop” a number of times.

17. A nurse who had seen the offender removed from the hospital earlier that day, observed the assault. She told the offender, “Get off him, get back. Just go, leave.” The offender yelled back to the nurse, “I have rights too, I have a sick girlfriend” and then yelled, “Come and be with me baby.”

18. The offender let go of the victim and stepped away from him. Two security guards from the hospital approached, and one of them put the victim in the wheelchair and took him into the hospital to wait for police.

19. The offender was arrested shortly after in the park opposite the hospital and taken to Kings Cross Police station. During the arrest the offender began to move his body around violently and grabbed onto the handcuffs that police were attempting to place on him.

20. The offender participated in an electronically recorded interview (ERISP) where he stated that he was at St. Vincent’s Hospital that morning to visit his girlfriend who was a patient. He denied speaking to anyone outside the hospital and denied assaulting anybody.

21. As a result of the offence, the victim suffered bruising on his left arm where the PICC line was connected and had become loosened as well as soreness and swelling to his abdomen. A doctor noted that there was more blood around the site of the PICC line than would be normal. The victim underwent a number of tests and scans to determine if he was suffering from any other injuries.

Criminal Record

22. The offender has a short criminal history. However it is a relatively significant one in such a short period of time, though does not amount to an aggravating factor as contemplated in section 21A(2)(d) of the Crimes (Sentencing Procedure) Act.

23. [redacted]

24. [redacted]

25. On his 18^th birthday he failed to comply with a Covid-19 Direction and was found in possession of prohibited drugs (2 counts). Three days later, he was again prosecuted for failing to comply with a Covid-19 direction, Custody of a Knife in a Public Place (subsequent offence) and possession of a prohibited drug. He was placed on Conditional Release Orders with conviction on each count for varying periods of time.

26. On 25 September 2020, the offender was imprisoned by way of aggregate sentence for 7 months for 2 counts of Common Assault, and 1 count of Affray, Resist Police, Intimidation (domestic violence related), Contravene Apprehended Violence Order (AVO) and Destroy Property (domestic violence related). These offences occurred prior to the offender committing the offences for which he is to be sentenced today.

Conditional Liberty

27. [redacted]

28. In addition, the offender was subject to 6 Conditional Release Orders from the Local Court, and on bail for Excluded Person Fail to Leave Premises, Common Assault x 2 counts and Affray [H74171430] and Contravene AVO, Destroy Property, Intimidation, Resist Police [H75209472] at the time he committed the offences for which he is to be sentenced.

29. He was therefore on conditional liberty for 24 offences at the time of this offending.

30. The commission of further offences whilst on conditional liberty is a statutory aggravating factor pursuant to section 21A(2)(j) of the Crimes (Sentencing Procedure) Act.

Vulnerable Victim

31. The victim, Mr Fisher, was extremely vulnerable at the time the offender demanded property with intent to steal and subsequently assaulted him occasioning actual bodily harm. That vulnerability was due to the medical condition Mr Fisher was suffering from and treatment he was enduring at that time, as well as the fact that he was confined to a wheelchair with a PICC or peripherally inserted central catheter above his left inner elbow.

32. The victim was not in a position to defend himself from the offender’s violent actions.

33. The potential harm by the multiple punching and kicking Mr Fisher in the stomach was significant. There was also potential for harm by the repeated pulling by the offender on the victim’s intravenous catheter.

34. The victim’s vulnerability is a statutory aggravating factor pursuant to section 21A (2)(l) of the Crimes (Sentencing Procedure) Act.

Victim Impact Statement

35. The Crown asked that a Victim Impact Statement (VIS) be read to the Court. Such a statement is permissible pursuant to section 27(4)(c) of the Crimes (Sentencing Procedure) Act.

36. Mr Fisher sat next to a support person in the witness box as a Victim Impact Statement was read aloud on his behalf. He was very distressed whilst this was done and I accept his raw emotional response as being entirely genuine.

37. The Victim Impact Statement will remain on the court file.

38. At the conclusion of that reading, I informed Mr Fisher that I had listened very carefully to what he had written and thanked him for preparing the document. I acknowledged the profound impact that this incident has had upon him, indicating that I would take what was said into account to the extent permitted by law.

39. One of the purposes of sentencing pursuant to section 3A(g) of the Crimes (Sentencing Procedure) Act is to ‘recognise the harm done to the victim of the crime and the community.’

40. I have considered the decision of R v Tuala [2015] NSWCCA 8 concerning the way in which a VIS can be used.

41. The Crown have not tendered any psychological or psychiatric material, photos of Mr Fisher’s presentation on the day of this violent assault, medical information concerning the screening that took place following this incident, photos of the bruising or much detail of the extent of more blood being around the site of the PICC, or the extent of the soreness and swelling around the abdomen. I am not to speculate as to the reason for that, accepting that there may be good reason.

42. Mr Irani for the offender indicated that the ‘harm’ in relation to the assault occasioning actual bodily harm’ matter was limited to the agreed facts.

43. In the absence of medical opinion and photographs, that submission must be accepted. Although the Court could infer that the pain lasting for three to four months, and ongoing trauma far exceeds what might be typical for an assault occasioning actual bodily harm matter, I am bound by the manner in which the matter has been presented.

44. In the circumstances, I am unable to find beyond reasonable doubt that the emotional harm suffered by the victim was substantial so as to amount to an aggravating factor pursuant to section 21A(2)(g) of the Crimes (Sentencing Procedure) Act.

45. The impact of the crimes upon the victim do not increase the objective seriousness of each offence, however, I will have regard to that impact as it is one of the purposes of sentencing and a legislative requirement that I do so.

Offender’s Evidence

46. The offender gave evidence. He is now 19 years old and in the Protection area of Parklea Correctional Facility.

47. He said that he was honest in giving information to the psychologist, and honest in the preparation of a letter that he wrote that he wanted to read aloud to the court.

48. In that letter, he apologised for his selfish and thoughtless harm to the victim. He said he took full responsibility and was remorseful.

49. The offender said that he did not remember a single moment due to heavy drug use and mental health. I will comment about that claim in due course.

50. He says that he realises from his time in prison that it is not the right path for him. He is now sober, and normally a good person. He has been going to Narcotics Anonymous weekly, and will seek drug and alcohol counselling upon release from custody.

51. Mr Cloutt-Oliver said that he was using drugs prior to the first entry on his criminal record in 2019. He was placed in protective custody in case other inmates found out the reason that he was in gaol. He said that he was assaulted in gaol, receiving a black eye, and his jaw hurt.

52. The offender said he had sought assistance from WAYS Youth Training. The document provided from WAYS Youth Training indicates that the offender used their services in 2019 and part of 2020, prior to going into custody.

53. Asked “in what way did ‘WAYS Youth Training’ assist him?”, the offender said, “I don’t know, drugs. I’m not going to use drugs.” It does not appear that WAYS provide drug counselling. The letter from that organisation does however comment positively in relation to the offender’s participation in courses run by that organisation.

54. He said that he would seek drug and alcohol counselling and other programs upon release, having used drugs since 2015 or 2016. He said in relation to the letter written to the court that “I writ (sic) it out 5 days ago. I writ (sic) it on Saturday.” He had not seen the Victim Impact Statement prior to it being read in Court, and wrote his letter prior to learning about the existence of a VIS.

55. He was asked by the Crown whether he had looked into any specific programs, to which he said: “Not specifically, like Ted Noffs.” Asked what that program involved, he said: “Just like counselling, yeah.”

56. He hopes to get a full-time job, “probably bartending or working at Coles, Pyrmont”

Crown Submissions

57. Mr Belcher for the DPP tendered written submissions, a copy of the agreed facts, a Corrective Services inmate history, criminal record and a copy of the Victim Impact Statement.

58. The offender has been refused bail since his arrest on 10 July 2020. From 21 July 2020 to 20 November 2020 the offender served a non-parole component of 4 months of a total aggregate sentence of 7 months. Time in custody solely referable to the offences for which the offender is to be sentenced is from 10 July 2020 to 20 July 2020, and from 21 November 2020 to 29 April 2021.

59. The Crown submits that the court has the discretion as to fixing a starting date for any period of imprisonment, though it should not be wholly concurrent with the sentence imposed in 2020 on other matters. Further, it was said that totality should be considered, with partial accumulation of the sentence being imposed now with the sentence imposed last year.

60. The Crown agrees that a 25% discount should be afforded to the offender for timing of the pleas of guilty. It was conceded that it was open to the Court to make a finding of special circumstances based on the subjective material in the offender’s case. It was also said that the offender’s subjective material left it open to the court to make a finding that this offender is not a suitable vehicle for general deterrence.

61. In terms of objective seriousness, the Crown submitted that the Demand Property with Menaces and AOABH fall below the mid-range of objective seriousness. The offences were unplanned and unsophisticated, and of relatively short duration. However, it was submitted that the verbal threat to kill, and the kicks and punches to the victim, only ceased upon a witness yelling at the offender to stop, which increases the objective seriousness.

62. The Crown identified aggravating factors of the offender being on conditional liberty, and the victim being vulnerable.

63. In relation to section 3A of the Crimes (Sentencing Procedure) Act, it was said the offences had a profound effect upon the victim with physical and emotional harm ongoing.

64. Mitigating factors are identified as being that the offence was not part of a planned or organised criminal activity, and the offender’s plea.

65. The Crown suggested that the Court would be guarded as to findings regarding prospects of rehabilitation, noting ‘not an insignificant record’ at the age of 18, and the offender receiving no formal treatment to date.

Mental Health Documentation

66. A number of documents were tendered on behalf of the offender in relation to his mental health: a psychological report of clinical psychologist Sam Borenstein, dated 10 April 2021; a Justice Health report dated 1 July 2020; and a letter from St Vincent’s Hospital dated 30 June 2020.

67. I shall refer to these documents briefly, and examine them in more detail shortly.

68. The offender was reviewed by the duty psychiatric registrar on 30 June 2020 – some ten days prior to the current offences. At that time, Mr Cloutt-Oliver was brought to hospital pursuant to an order made by the Local Court concerning criminal charges under s 33 of the Mental Health (Forensic Provisions) Act after voicing suicidal ideation and displaying risky behaviour the day prior (running into traffic).

69. Descriptions given by Mr Cloutt-Oliver to the psychiatrist were of “clinical features consistent with early attachment difficulties, conduct disorder and alcohol issues with longstanding difficulties with emotional self-regulation and long standing interpersonal difficulties.”

70. I note that no mention was made of drug use at all. Reference was made to the offender describing a heavy alcohol intake over a two month period, which the psychiatrist though might be inflated, finding that the defendant “is unlikely to be at high risk of alcohol withdrawal though this should be kept in mind.”

71. The defendant was prescribed medication to assist with sleep and reduce stress and anxiety in the short term – not to treat an underlying major mental illness, and not on a long term basis.

72. The Justice Health Report by clinical nurse consultant Mr Chapman, was prepared upon the offender being returned to Central Local Court the following day as he was found not to be mentally ill, and noted that the offender was currently living with his mother and sister in Pyrmont – this is nine days prior to the offending conduct.

66. He told the clinical nurse of issues with conduct from the age of about 10, fighting and truancy at school but recently completing a course in business with WAYS Youth Training. He was dependent on his mother but felt unsupported by her. He was in a relationship. WAYS staff confirmed the offender’s attendance, including completion of two x ten week courses with excellent attendance and no reported issues regarding his behaviour.

67. The offender told the report writer that he began smoking cannabis regularly from the age of 12, denied using psychostimulants or injecting drugs. He reported regular abuse of benzodiazepine medications and long-standing features of alcohol dependence disorder characterised by early-morning drinking in excess of more than 1 litre per day.

68. The clinical nurse wrote: “Mr Cloutt-Oliver demonstrates poor insight into the detrimental effects of illicit drugs, alcohol use and abuse of prescription medications upon already compromised judgment capacity.”

69. The clinical impression was of antisocial and emotionally unstable personality problems, features of impulse control disorder and substance use disorders (multiple).

70. It was said that the defendant “experiences difficulties in the ways he relates to himself and others and has historically relied upon drugs and self-harm as mal adaptive coping mechanisms to manage the feelings of anger that overcome him.”

71. He described impulsive acts of attempting to jump from a building to run in front of traffic, in the context of cannabis withdrawal. He was said to demonstrate an external locus of control and limited motivation to currently address those issues. Mr Chapman wrote: “Until he is able to address his drug use and engage in psychological treatment, he is at an elevated risk of self-harm and misadventure.” He would benefit from maintaining sobriety and engaging in long term drug treatment. There were no symptoms of pervasive mood disorder or psychotic illness.

Plea in Mitigation

79. In addition to the mental health documents referred to previously, Mr Irani tendered a letter from WAYS Youth Training dated 16 April 2021; and letters from the offender’s 11 year old sister, his aunty, his father, and his mother.

80. It was submitted that the sentences of imprisonment in 2020 were due to the limited options available to the sentencing Court due to the offender being refused bail on these matters at that time. In response to that, it must be noted that the sentencing magistrate must have determined that the section 5 threshold had been crossed. I note there was no appeal against that sentence and I understood Mr Irani to have said that he acted for the offender at that time.

81. The guilty pleas after the strictly indictable offence was withdrawn attract a 25% discount. It was conceded that the offender was on conditional liberty. However, in relation to the 6 Conditional Release Orders called up, it was suggested that the Court should take no action. In that regard, I note that the matters were called up at the time the offender was sentenced to imprisonment in September 2020 with no action taken.

82. The offender has stopped using drugs since being in custody.

83. The Court was asked to exercise its discretion in backdating the sentence to the commencement of the previous prison sentence, ie. to run concurrently.

84. It was submitted that the offender’s mental state at the time of offence needs to be considered. Mr Irani said that regard could be had to the offender’s immaturity.

85. Prospects of rehabilitation were reasonable if the defendant engaged with Community Corrections.

86. It was suggested that an aggregate sentence would be imposed, and that it was “difficult to concede that the section 5 threshold was not crossed.” When asked which offences he was referring to, he said that it was crossed regarding the Assault Occasioning Actual Bodily Harm matter, but not conceded in relation to the Demand Property with Menaces count. The Resist Police matter did not cross the threshold.

87. Mr Irani confirmed, when asked, that he was not submitting that an Intensive Correction Order would be appropriate. There can be no doubt as to the correctness of that submission.

88. He did say, again when asked, that if the Court found that the two substantive offences crossed the section 5 threshold, that the offences would be concurrent as they happened at the same time.

89. The Court was asked to make a finding of special circumstances in relation to it being the offender’s first time in custody, his drug issues, his age and his mental health issues.

Objective Seriousness

90. The objective seriousness of the Assault Occasioning Actual Bodily Harm matter sits well into the mid-range. The assessment of objective seriousness is not indicated only by the extent of the bodily harm, which in this case is not substantial, though not insignificant. It must also involve consideration of the circumstances in which the offence was committed.

91. In that regard, see McCullough [2009] NSWCCA 94 where Howie J (McClellan CJ at CL, Simpson J. agreeing) said, albeit with regard to a malicious wounding matter, at [37]:

Malicious wounding is principally a result offence. Generally speaking the seriousness of the offence will significantly depend upon the seriousness of the wounding. That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wounding are irrelevant. The same can be said for an offence involving the infliction of grievous bodily harm: the more serious the harm inflicted the more serious the offence: see R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [27].

92. This was an unprovoked attack upon a complete stranger, a vulnerable man seated in a wheelchair with an intravenous catheter in his arm outside of a hospital who had undergone brain surgery. The attack occurred immediately after the victim had declined to give the offender a cigarette after a verbally aggressive demand was made, and was followed by the offender saying “I will kill you.”

93. It was a particularly cowardly and despicable attack that involved violent shaking of the victim, multiple punches and kicks to the victim’s abdomen and deliberate tugging on the catheter, despite the victim yelling “stop”. The victim was defenceless, sliding down in the wheelchair after being punched, only to be kicked. Although the offender would not have known the victim’s actual medical condition, he knew the victim was in a wheelchair, and by tugging on the catheter knew that the catheter was fitted intravenously. It would have been obvious to the offender that the victim was unable to defend himself when he was sliding down in the wheelchair. The injuries are described in the agreed facts.

94. If there had been no actual bodily harm, this would be an assault in the upper range of objective seriousness, for an offence with a maximum penalty of 2 years. Instead it is a very serious assault that fortunately did not result in substantial actual bodily harm where the maximum penalty is 5 years. In other words, the objective serious would be increased beyond the finding I have made if the injuries were more significant.

95. The objective seriousness of the Demand Property with Menaces is below mid-range. It was verbally aggressive and threatening, but fleeting, grabbing the victim’s clothing and shaking him violently which led into the assault occasioning actual bodily harm offence.

96. The Resist Police matter sits in the low range of objective seriousness.

Relevance of Mental Health Documents

97. There is no doubt at all that 11 to 12 days prior to the offending on 10 July 2020, the offender was voicing suicidal ideation and displaying risky behaviour. When examined by the psychiatric registrar at St Vincent’s Hospital on 30 June 2020, there was no observation made of drug affectation or history given of drug use. There was no observation made of alcohol affectation, though the offender described a heavy alcohol intake. The offender described clinical features consistent with early attachment difficulties, conduct disorder and alcohol abuse, with longstanding difficulties with emotional self-regulation and long standing interpersonal difficulties.

98. I note that these observations were made by the most highly qualified of the three persons who provided a document relating to the offender’s mental health. In saying that, I do not intend to demean the findings of the psychologist or clinical nurse consultant, but do wish to examine and compare their respective findings. I have seen many reports from Mr Borenstein and from Mr Chapman and without hesitation readily accept their expertise.

99. Mr Chapman was told of drug use and regular use of benzodiazepine medications. I note the offender was arrested by police for offences including possession of cannabis on 17 April 2020, and on 15 April arrested for possession of prohibited drugs cannabis and Xanax. Xanax contains alprazolam which is a benzodiazepine. The offender also spoke of significant alcohol consumption.

100. Mr Cloutt-Oliver disclosed issues when at school with fighting and truancy, and anger management issues. These issues occurred apparently from around the age of 10, which is at least two years prior to the offender commencing use of cannabis, i.e. the issues existed independent of drug use.

101. The offender described his risky actions on 29 June 2020 as being impulsive, occurring in the context of cannabis withdrawal, relationship difficulties with his mother and financial concerns. He had used other types of drugs.

102. The findings of Mr Chapman noted the findings from the psychiatrist the day before. The clinical impression of antisocial and unstable personality problems and feature of impulse control disorder seem quite consistent with the psychiatrist’s views. The substance abuse disorders ‘multiple’ is an additional finding.

103. In relation to Mr Borenstein’s report, the offender told him that he has little memory of the events for which he has been charged. He estimates consuming approximately eight Xanax tablets, and leading up to the day of the offence claims to have consumed ‘ice’ two days prior, and at least ½ a litre of alcohol (vodka) on the day of the offence. I do not accept those claims.

104. There is no independent evidence whatsoever that the offender was drug or alcohol affected on the day of, or at the time of the offence. I note that police interacted with him shortly after the incident outside St Vincent’s Hospital. I further note that the offender took part in an electronically recorded interview. I would expect that if the offender was drug or alcohol affected, it would have been recorded in custody management records, the facts and an interview would not have taken place.

105. What is in common with the clinical nurse consultant’s report and that of the psychiatrist are the issues of anger problems. He told Mr Borenstein that he was seeing counsellors when aged 9 until the age of 12 for his anger problems (pg.3) and constantly in trouble at school from very young.

106. Mr Borenstein said that the offender’s presentation and mental state has improved significantly compared to when assessed by Mr Chapman and the psychiatrist. However, Mr Borenstein also said that Mr Cloutt-Oliver responds favourably to structure and routine and predictability in the prison context (pg.7).

107. He then offered the opinion that Mr Cloutt-Oliver’s combined disorders, in particular impulse control behaviour and emotional and mood dysregulation, which has its basis in an earlier attachment disorder, contributed to him developing both Substance Use and Alcohol Use Disorder, and compounded his precarious social and living circumstances.

108. I accept that opinion.

109. Additionally, Mr Borenstein’s offers (bottom of page 6) an opinion which is in effect a recitation of what constitutes a ‘mental health impairment’ pursuant to section 4(1) of the recently enacted Mental Health and Cognitive Impairment Forensic Provisions Act 2020. His opinion is that:

“…the offender suffers a mental illness and mental health impairment, resulting in ongoing disturbance of thought, mood, volition, and perception, and that the disturbance would be regarded as significant for clinical diagnostic purposes, and that disturbance has impaired his emotional wellbeing, judgment and behavioural choice.”

110. The wording of section 4(1) of the Act is as follows:

4 Mental health impairment

(1) For the purposes of this Act, a
"person has a mental health impairment" if--

(a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and

(b) the disturbance would be regarded as significant for clinical diagnostic purposes, and

(c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

111. Mr Borenstein says that Mr Cloutt-Oliver requires considerable social support and intervention.

112. I glean from all of that helpful information and from the agreed facts, that the offender was not drug or alcohol affected at the time of the offending on 10 July 2020 when he committed the offences upon Mr Fisher, and resisted police in the execution of their duties.

113. I accept that the offender had a drug addiction at a time prior to the offending conduct, to cannabis and benzodiazepines with possible use of other drugs and alcohol and that he is now abstinent.

114. The offender’s long standing anger issues and difficulties with emotional self-regulation and interpersonal difficulties, and early attachment difficulties remain untreated and existed well prior to his drug addiction.

Relevant Case Law – Mental Health related

115. In Aslan v The Queen [2014] NSWCCA 114 and Ngati v The Queen [2015] NSWCCA 125, the issue of the impact of mental illness and mental condition in sentence proceedings was examined.

116. In Aslan Simpson J (as her Honour then was) in giving the judgment of the court at [33] and [34] said:

This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows:

"[Principle 1] Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ...

[Principle 2] It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ...

[Principle 3] It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ...

[Principle 4] It may reduce or eliminate the significance of specific deterrence ...

[Principle 5] Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ..."

[34]It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.

117. In Ngati v The Queen [2014] NSWCCA 125 Beech-Jones J in giving the leading judgment said at [46]:

“Nevertheless the approach stated in Muldrock is only expressed to be apposite to “most cases” of an offender with impaired intellectual functioning. It does not necessarily apply to all. The task still remains to consider the evidence of the intellectual retardation and the facts of the particular offence. In this case, his Honour noted the degree of planning that was involved by the applicant in the commission of the offences. His Honour concluded that the applicant was “fully aware” that his conduct was “seriously wrong”. Considered in this context the finding that he was “fully aware” was clearly a reference to the applicant having a deep understanding of its wrongful nature and consequences”

118. In the case involving Mr Cloutt-Oliver, I have already noted the agreed facts that the offender took part in an electronically recorded interview with police following his arrest. There is no evidence of drug or alcohol affectation. The offender told police that he was at St Vincent’s Hospital that morning to visit his girlfriend who was a patient. He denied speaking to anyone outside the hospital and denied assaulting anybody.

119. There is no psychiatric or psychological evidence that the offender has memory lapses as a consequence of his anger and other issues. The offender’s claimed lack of recollection due to drug use at the time of the offence is not supported, and in fact contradicted by other evidence. I do not accept his evidence in that regard.

120. I am satisfied that the offender has Antisocial and Emotionally Unstable Personality Problems and Features of Impulse Control Disorder, Conduct Disorder, Longstanding Difficulties with Emotional Self-Regulation and Long Standing Interpersonal Difficulties.

121. I accept that there may be some link between those findings and the commission of the offences against Mr Fisher, though I am unable to find that his mental health issues contributed to the offending conduct in a material way: see Muldrock v The Queen [2011] HCA 39 at [54]. Mr Borenstein, whose report was prepared nine months after the incident, did not specifically opine that there was a causal connection between the offender’s mental health issues and the offences. I reject the offender’s claim to the clinical psychologist of drug and alcohol affectation at the time of offending. Such a claim is not credible.

122. Accordingly, I do not find that the offender’s moral culpability is reduced in any significant way. There is still a strong need for denunciation.

123. I do not find that the offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed, however I will take into account the offender’s mental health issues in making a finding of special circumstances.

118. I do not find that due to the offender’s mental health issues that a custodial sentence may weigh more heavily on him. He is on protection within the prison due to the nature of the offences that he committed, not due to his mental health issues.

119. The offender’s criminal record contains many instances involving violence. I do not find that due to the offender’s mental health issues that he presents more of a danger to the community. However, if medical opinion had asserted that the offender’s mental health condition contributed in a material way to his offending, such a finding would be available.

Youth and Rehabilitation

126. I have had regard to a number of authorities on the issue of the offender’s youth. Those include the judgment of RA Hulme J in Locke v R [2010] NSWCCA 296 where his Honour reviewed a number of authorities, especially at [41] to [49].

127. Whilst Mr Irani made submissions concerning the offender’s immaturity, I pointed out that the aspect of immaturity was not raised by the psychiatric registrar, clinical nurse consultant or clinical psychologist. In those circumstances, I was not going to accept submissions from the bar table that were unsupported by any evidence.

128. However, I must take into account the age of the offender and consider his prospects of rehabilitation. The offending conduct of Mr Cloutt-Oliver is not to the significant level of violence often seen in the cases referring to considerations of youth.

129. I am guarded at present as to the offender’s prospects of rehabilitation. The longstanding issues that are referred to collectively in the reports tendered have in the past lead to over reliance on drugs and alcohol as a means of achieving emotional regulation. Those issues are thus far untreated.

130. This offender will need psychiatric or psychological intervention to deal with those issues. The psychiatrist wrote that “he will very likely need support however accessing income, accommodation as well as linking with education, employment and social structure to reduce the likelihood of recidivism.” Mr Borenstein made recommendations on page 7 of his report.

131. The offender’s rehabilitation will very much depend on his commitment to the interventions recommended by professionals. It seems that no meaningful intervention has been attempted previously.

132. Unless the offender commits to such interventions, there is a risk of relapsing into drug and alcohol use. The offender appeared to have no genuine idea of what courses he might undertake, and focused on the issue of drug rehabilitation, with little if any regard to the behavioural issues that existed prior to drug use. He will need strict supervision and guidance when released to parole.

133. I am unable to find at present that the offender is unlikely to re-offend.

134. I accept the offender’s expressed remorse despite his claimed inability to remember the event due to drug use, which I have rejected. I have considered the content of his letter and the references tendered on his behalf, which suggest positive prospects of pro-social support upon his eventual release.

Sections 3A and 5 Crimes (Sentencing Procedure Act.

135. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

136. Each of those purposes of sentencing has relevance in this matter.

137. Section 5 of the Crimes (Sentencing Procedure) Act provides that a Court should not impose a sentence of imprisonment unless having considered all possible alternatives, no other sentence is appropriate.

138. Mr Irani initially submitted that the Court could deal with the matter by way of aggregate sentence, indicating that the resist police matter did not cross the threshold. I agree with that submission.

139. However, as indicated previously, he did not concede that the demand property with menaces matter crossed the threshold.

140. I pointed out that if that were the case, there would be only the AOABH matter that crossed the imprisonment threshold, in which case there were not two or more offences to form an aggregate sentence. Mr Irani then withdrew his submission about the appropriateness of an aggregate sentence.

141. I am satisfied that both the AOABH and Demand Property with Menaces offences cross the section 5 threshold and that only a period of imprisonment is appropriate having considered all other alternatives. The findings of objective seriousness, and having taken into account the aggravating and mitigating factors, comfortably lead to that conclusion.

Aggregate sentence

142. I will deal with the offender by way of an aggregate sentence pursuant to section 53A Crimes (Sentencing Procedure) Act. I have applied the discount for the utilitarian value of the guilty plea for each offence.

143. The jurisdictional limit is exceeded for the Assault Occasioning Actual Bodily Harm matter with a starting point of 2 years 8 months prior to applying the utilitarian discount and rounding down: see Greaves (supra).

H No./Seq	Offence	Indicative Sentence
H145577101/2	Assault Occasioning Actual Bodily Harm	2 years
H145577101/4	Demand Property with Menaces with intent to steal	9 months

144. The sentence is 2 years and 3 months imprisonment.

Partial Accumulation

145. Mr Irani submitted that given the proximity in time of both offences that they would be concurrent. I rejected that submission, referring to a number of cases including R v Merrin [2007] NSWCCA 255 at [36] per Howie J where his Honour said:

[36] This Court has been at pains to make it clear that sentences for multiple offences are not made concurrent simply because they arise from a single incident of criminality or because they are of a similar nature and committed in similar circumstances.

146. There will be modest partial accumulation.

Totality

147. I must take into account the sentence imposed previously on the offender in determining the commencement date for the current sentencing exercise, the relevant non-parole period, and the overall sentence considering both sentences.

148. In determining the starting date, I note that the initial 11 days in custody from the time of arrest was not taken into account in the previous sentence imposed. Further, the offender has remained in custody since the release date on the previous sentence, i.e. from 20 November 2020.

149. I will commence the current sentence from the date of expiration of the non-parole period in the previous sentence, i.e. from 21 November 2020 less the additional 11 days previously referred to.

150. The sentence shall commence from 10 November 2020 and therefore expire on 9 February 2023.

151. The overall sentence combining the previous sentence and current sentence, is from 21 July 2020 to 9 February 2023, which is a period of approximately 2 years 6 ½ months (i.e. 30 ½ months). Ordinarily, pursuant to section 44(2B) of the Crimes (Sentencing Procedure) Act, the non-parole period would be marginally under 23 months. I note the offender already served a non-parole period of 4 months on the previous sentence.

Special Circumstances

152. I make a finding of special circumstances regarding the offender’s drug and alcohol issues, his mental health issues, his youth or age and that in effect it is still his first time in custody. These findings will result in a reduction of the non-parole period and serve to promote his rehabilitation.

153. I denounce the offender’s conduct.

ORDERS

154. The offender Zac Cloutt-Oliver is convicted on all counts.

155. I sentence the offender by way of aggregate sentence to a term of imprisonment of 2 years and 3 months from 10 November 2020 to 9 February 2023.

156. The non-parole period is 17 months from 10 November 2020 to 9 April 2022. This reflects the finding of special circumstances.

157. In relation to the Resist Police matter, the offender is placed on a Community Corrections Order for a period of 12 months.

158. In relation to each of the Conditional Release Orders called up, I revoke those Orders and in lieu on each count place the offender on a Community Correction Order for a period of 9 months.

159. Given that the offender will be on supervised parole once released, I decline to order supervision on the Community Correction Orders.

**********

Decision last updated: 30 November 2021