R v Amaroo Edward Davis

[2020] NSWDC 340

District Court

New South Wales

Medium Neutral Citation:

R v Amaroo Edward Davis [2020] NSWDC 340

Hearing dates:

30 June 2020

Date of orders:

1 July 2020

Decision date:

01 July 2020

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [62]

Catchwords:

CRIME — Violent offences — Reckless wounding

CRIME — Public order offences — Affray

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

Muldrock v The Queen [2011] HCA 39

Waters v Regina [2007] NSWCCA 219

R v Henry [1999] NSWCCA 111

Field v R [2020] NSWCCA 105

R v Holder [1983] 3 NSWLR 245

Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41

Taitoko v R [2020] NSWCCA 43

Bugmy v The Queen [2013] HCA 37

Category:

Sentence

Parties:

Regina (Crown)
Davis (Accused)

Representation:

Counsel:
Mr Webb, for the Crown;
Mr Day for the offender

File Number(s):

2019/00165180

Publication restriction:

Unrestricted

Contents

Judgment

Introduction

Charge, maximum sentence, SNPP

Form 1 procedure

Standard non-parole period

The facts

Objective seriousness

Intoxication

Other matters

Section 21A.

Subjective case

Sentencing assessment report

Psychologists’ reports

Criminal history, likelihood of reoffending and prospects

Guilty plea

Youth

Victim impact statement

Totality

Special circumstances

Sentencing considerations

Orders

Judgment

Introduction

1. The offender was born on 6 September 1999 and so is presently 20 years old. The date of the offending was 1 January 2019 so that the offender was 19 years old at that time. The offender was arrested for this offence in May 2019 whilst in custody for another offence for which he has before today been sentenced. The offender has spent 49 days in custody solely for the offending presently being dealt with.

Charge, maximum sentence, SNPP

2. The offender is charged with one count of reckless wounding in company under section 35(3) of the Crimes Act 1900. The maximum penalty is 10 years imprisonment and there is a standard non-parole period of 4 years. Additionally there is one other offence of affray under section 93C(1) of the Crimes Act for which the offender is to be dealt with under the Form 1 procedure. The Form 1 matter has a maximum sentence of 10 years. There is no standard non-parole period for affray.

Form 1 procedure

3. In regards to the Form 1 procedure it is important that the focus remains on the principal offence for which the offender is being sentenced, which in this case is the reckless wounding charge. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

Standard non-parole period

4. I have noted the SNPP in respect of the s35(3) offence. The standard non-parole period is to be considered a guidepost in the same way as the maximum sentence may be considered a guidepost.

5. At [29] of Muldrock v The Queen [2011] HCA 39 it was said that Division 1A CSPA requires sentencing judges to state fully the reasons for arriving at the sentence imposed. The Court explained that the central purpose of division 1A was to require sentencing judges to state fully the reasons for arriving at the sentence imposed.

6. The matter of the SNPP is to be taken into account together with the maximum penalty as part of the instinctive synthesis process; see Muldrock at [27]. Thus it is a matter to be taken into account with all others with the requirement upon me to set out my reasons, if it be the case, for setting a non parole period of something other than 4 years.

The facts

7. The agreed facts form part of exhibit A. A number of young people attended a New Year’s Eve in 2018. Some of the young people moved onto the Toormina soccer fields to bring in the New Year. In the vicinity were members of a group known as the Coffs Koori Boys or CKB. Shortly after midnight a fight broke out between the partygoers and 2 of the CKB (neither of which was the offender). The 2 CKB members came out for the worse and left saying they would be back. Subsequently there were 2 incidents.

8. The first occurred when 4 or 5 CKB members arrived at the scene and got out of the car and began assaulting the partygoers, got back in the car and left. This first incident did not involve the offender. The second incident occurred about 3 to 5 minutes after the first when a second vehicle arrived followed by the same vehicle as in the first incident. 8 to 10 males got out of the 2 vehicles including the offender. Some were carrying golf clubs and metal poles and the offender was carrying a knife in each hand. One CKB member, Hancocks, began assaulting a partygoer named Massaad, after Massaad had said “Johnno, it wasn’t us”. The offender ran towards a person named Bailey Morgan holding the knives out in front of him. Morgan sheltered inside a house and the offender ran off when challenged by the occupant. The offender then held 2 knives towards Massaad and said “yeah come on”. This conduct constitutes the affray matter.

9. Massaad was then struck with something to the left side of his jaw, knocking him to the ground. Whilst on the ground he was kicked, stomped on and struck with objects causing a wound to his head. This continued for 30 to 45 seconds. A nearby resident ran to the scene and told the males to “piss off” which was met with the reply “fuck off you white cunt”. The resident replied “who are you calling a white cunt I’m a fucking black fella”. The assaulting ceased and the males returned to the vehicles and left.

10. The injuries suffered by Massaad were a compound fracture to his middle finger requiring surgery and the insertion of a wire, a nail on a finger had to be reattached, his wrist was broken and the wound to his head required four staples. According to his victim impact statement he also suffered an injury to his foot requiring him to wear a moon boot.

11. The offender is legally responsible for this conduct on the basis of the conduct being a joint criminal enterprise. To determine the offender’s culpability for this conduct involves closer consideration to his actual conduct. In a further submission of the offender made after the sentencing hearing, to which there has been no objection, reference was made to KR v R [2012] NSWCCA 32, where Latham J said at [19]:

12. What emerges from these statements of sentencing principle is that the participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participant's level of culpability stands to be assessed by reference to his/her particular conduct.

13. I have taken this statement into account in determining the offender’s culpability for this offending.

Objective seriousness

Intoxication

14. I have referred to the level of alcohol consumption below. I note the evidence in this regard emerges from the offender’s evidence via the psychologists reports, and not from the agreed facts, and that there has been no objection to this. The offender must have been significantly intoxicated at the time of this offending. By section 21A (5AA) this cannot be taken into account as a mitigating factor. That does not mean however that intoxication is an irrelevant matter to give consideration to altogether. As was helpfully submitted by the offender’s counsel, in Waters v Regina [2007] NSWCCA 219, and citing R v Henry [1999] NSWCCA 111, the fact of an offender being intoxicated at the time of the offending may indicate that the offence was impulsive and unplanned and the offender’s capacity to exercise judgement was impaired. The result is that objective seriousness of the offending may be reduced to a limited extent.

Other matters

15. In regards to the reckless wounding charge I note that the precise cause of the wounding is not known so that it cannot be determined whether or not the injuries arose from anything specifically done by the offender. That said the wounding occurred at a time when the offender was armed with 2 knives and those that he was with were armed with golf clubs and iron bars. The offender’s criminal responsibility is accepted to arise due to the joint criminal enterprise of the reckless wounding. As noted above, this is a separate consideration to the offender’s culpability. My view is that the offender’s culpability is to be assessed in the context of having arrived at the scene armed with two knives, to have soon after that yelled “yeah come on” whilst facing Massaad with the two knives (which is the affray conduct) and to have then engaged in the joint criminal enterprise of the attack on Massaad.

16. I also consider it open to infer and I do find that there was a degree of premeditation on the part of the offender who attended back at the scene where his fellow attackers had only recently departed having come off second best in the earlier incident. This degree of premeditation must however be viewed with the high level of intoxication in mind, a level of intoxication that makes one wonder to what extent the offender could plan anything.

17. The continuation of the attack on Massaad whilst he lay defenceless on the ground is reprehensible. Not only was the victim outnumbered he was defenceless when he was on the ground. The conduct of the offender in being a party to this joint criminal enterprise is meaningless, mindless and cowardly, and admittedly reckless, and this remains so assuming, as I must on these facts, that it was not any blow of the offender that caused the injuries.

18. I accept the submission for the offender that it is relevant to consider the seriousness of the injuries, but in my view that does not assist the offender. The injuries here are far from minor. The victim has a 4 cm wound in his head. The victim suffered a broken wrist and fractured finger. According to the victim impact statement he also needed to have his ankle placed in a moon boot. My view is that the nature of the injuries increases the likelihood of the matter being considered to be in the mid range of objective seriousness rather than lessening it.

19. I consider the offending to be comfortably in the mid range of objective seriousness. When the fact of the intoxication is also taken into account in the manner explained above my assessment is still that the offending is in the mid range of objective seriousness.

20. In sentencing for this matter I need to take into account the affray matter. That matter arguably could fall within the description of misplaced bravado with this young man apparently mistaking his environment for some kind of hyped up movie. The fact that it involves not one but 2 knives adds to its seriousness. In all the circumstances of this case I would assess this as being just below the mid range. I take into account that the affray and the reckless wounding offence arose from the one course of conduct.

Section 21A.

21. The parties were agreed that, apart from the factor of the actual or threatened use of a weapon which I have referred to in considering the objective seriousness above, the only aggravating feature in this case was the fact that the offending occurred whilst the offender was on conditional liberty. The offender at the time of the offending was on good behaviour bonds for the offences of goods in custody, intimidation and larceny. I note the offender’s reference to Field v R [2020] NSWCCA 105 where it was held that rather than increasing the objective seriousness of an offence this factor has an aggravating effect on the sentence imposed “by affecting considerations of punishment and deterrence and protection of the community”. I have taken this matter into account in this way.

Subjective case

Sentencing assessment report

22. This report notes a supportive relationship between the offender and his grandmother and his younger brother. His oral evidence revealed 11 siblings and no mention is made of any significant association with the other 10. Prior to incarceration he was unemployed last working in 2017. He has a history of antisocial behaviour commencing as a juvenile. In this report which was dated 2 June 2020 the offender attributed blame for his behaviour primarily on the victims as well as his associates and to being intoxicated at the time. He said “the victims deserved it.”

23. A history of chronic alcohol and drug abuse was noted as was a peer group of people involved in crime. The report notes a lack of insight into the effect of the offending on the victims.

24. At odds with the offending both past and present he denied being a violent person.

25. The offender did identify the negative effect of drug abuse on his life and its contribution to his offending behaviour and said he was willing to address his substance use. He did express verbal remorse for his behaviour as well as a willingness to undertake intervention. He expressed a willingness to do community service work but it was considered unlikely he could comply with such an order due to his drug dependence.

26. The offender was assessed as a medium to high risk of reoffending. A supervision plan was set out including drug and alcohol treatment and cognitive behaviour intervention exercises.

Psychologists’ reports

27. The offender relied on the reports of 2 psychologists. The first was dated 22 August 2019. That report was prepared for the purpose of the sentencing hearing in relation to an armed robbery offence that was committed approximately 6 weeks after the matter currently being considered. The report refers to an extensive history with the Department of Community Services with a number of reports identifying the offender as a child under the age of 10 as being a child at risk of significant harm due to neglect, and exposure to substance abuse and domestic violence.

28. Based on his interview the psychologist considered the offender to have limited insight into his behaviour and that he struggled to articulate himself, that he provided simplistic answers and misinterpreted questions. Having seen the offender give evidence I agree with that assessment.

29. This report records that on the day of the earlier sentenced offending which occurred later in time he had consumed 48 beers and 2.8 L of spirits. That is said to equate to 200 standard drinks. He also smoked a quarter ounce of cannabis and had taken 4 strips of buprenorphine. There was no challenge to this assertion. In the second psychologist report a lesser, but still enormous consumption of alcohol is asserted on the occasion of the reckless wounding offence, again without challenge.

30. There was no challenge to the case of the offender as having been brought up in circumstances of social disadvantage. Up until the age of 5 he was living with his mother and did not at that time know his father whom he has only met twice to date with no ongoing relationship. From the age of 5 he was in the care of his grandmother and he recalls little of his mother. He suffered physical abuse from his stepfather and then when with his grandmother was exposed to domestic violence from her partner. His younger brother has been in juvenile detention.

31. As to education his evidence in court was of leaving in year 9 though this report states he was expelled in year 10. He did later complete his year 10 certificate and worked for a number of months as a concreter. Contrary to the earlier part of the report it is said he did not work from 2015 but had recently completed training as a traffic controller consistent with his evidence in court. He hopes to gain such employment upon his release.

32. The offender’s use of cannabis and alcohol commenced at age 13. At 18 he started using methamphetamine. He also used cocaine and MDMA. At 15 he was using non-prescribed medications such as you buprenorphine and Valium. He continues to use prescribed substances (though not for him) in prison though has been abstinent from illegal substances and alcohol.

33. His medical history is unremarkable.

34. The report recommends culturally sensitive treatment for substance abuse to assist in developing insight into drug use and to prevent relapse. It may also assist if there was a neuro psychological assessment. The report sensibly recommends much assistance in the community such as with housing and employment to assist in engaging in treatment to assist with stable functioning in the community. The report notes that the offender is on his way to developing an antisocial personality disorder and heading towards a lifelong criminal trajectory.

35. In an opinion adopted by the offender’s counsel in submissions this report states that the offender is at a crossroads in his life and his future trajectory is dependent on the intervention he now receives.

36. A second psychologist’s report of a different author was relied on dated 24 June 2020. This report notes the offender’s background and recommends intensive treatment to address the substance use issues and the difficulties in managing emotions with the propensity towards aggression. As with the earlier offending he reported that he had consumed up to a carton of beer and one and a half bottles of spirits prior to this offending, which are said to equate to 67 standard drinks. He recognised that alcohol makes him be impulsive and angry. Of most concern is that the offender said he regretted his behaviour but said that was because he was locked up and when asked about the offence said it was justified and said he was defending a friend. This response is noted as being of limited insight. I would describe that description as a massive understatement.

37. The background of the offender is recounted in similar terms to the first report but notes also that the offender felt rejected by his mother which is understandable bearing in mind that history. A similar substance use history is given though with the cannabis use said to start at a slightly older age and with reference to alcohol being abused commencing at 18. In my view nothing turns on this and I accept that the offender has a long-standing abuse of both. The second report assesses the offender as having alcohol use disorder moderate which is in remission in a controlled environment.

38. The second report assesses a possible undiagnosed learning issue or mild intellectual disability or delayed cognitive development. From my observation of the offender I consider this a distinct possibility. Whether it emerges from his birth, allowing for the possibility of substance abuse by his mother, or by the traumas he suffered as a child or due to his own abuse of substances cannot be ascertained. I am prepared to infer based on the history of this offender that he does suffer some kind of cognitive impairment. My observations of his demeanour, comprehension and expression in the witness box support this.

39. The report sets out recommendations on treatment including custodial therapeutic programs. Treatment is recommended to regulate the offender’s emotions as well as a neuropsychological assessment.

Criminal history, likelihood of reoffending and prospects

40. The offender’s criminal history commences at the age of 16 in the Children’s Court with charges of assault and stalking/intimidate. In 2017 there were charges of cultivating a prohibited plant, affray and aggravated break and enter. In 2018 there were charges of possessing prohibited drug, failing to appear and custody of a knife as well as goods in custody and a second stalk/intimidate offence. The sentence was a 2 year bond. Then in February 2019, so about 6 weeks after the current offending, he committed the armed robbery with an offensive weapon. For this he was sentenced to 3 years imprisonment with a non-parole period of 1 year and 3 months. That sentence was to date from the 13 February 2019 so that he became eligible for parole on 12 May 2020.

40. The offender is accordingly not entitled to any leniency that he may have enjoyed with a clear record. The record supports the submission that the offender, owing to his disadvantaged background, is a person who is more likely to become known to the authorities than somebody who does not encounter those disadvantages.

41. The offender has been assessed as having a medium to high likelihood of reoffending. I accept that assessment. Whilst there have been expressions of remorse, the offender’s comments to the most recent report writer and his presentation when giving evidence did not impress me as being genuine remorse. That is not a reflection in my view of any lack of sincerity of some expression of remorse but rather a reflection on the view that I have formed that this offender simply has no real concept of the wrongfulness of his behaviour, and or perhaps alternatively simply is not equipped with the skills to cope with life in a pro social way. The material in this case clearly makes out the matters of social disadvantage so as to attract the principles recognised by cases such as Bugmy. As a result the moral culpability of this offender is less and he is less suitable as a vehicle for general deterrence. I query (without suggesting punishment is not called for) to some extent just what benefit overall there is of seeking to punish the offender when the sort of conduct he has been engaging in would appear to be the type of behaviour that he has grown up with and is considered normal. The result may well be that he has very little appreciation as to just why he is being punished which would also explain why he seems to have little understanding of why he needs to be remorseful and why he lacks any insight into the impact of his behaviour.

42. More promising however is the fact that the offender does have a history of having completed his secondary education to year 10 level, did albeit briefly undertake work as a concreter and did complete the necessary course to be eligible to work as a traffic controller. In addition to that the one aspect in the evidence of a pro social connection to the offender was of his uncle owning a business providing traffic controlling services and where he had hoped to work before incarceration and believes he may have an opportunity to work upon his release.

43. That gives some basis for the future prospects of the offender being more promising than his past. That factor will be competing against a history of very significant alcohol and drug abuse. The quantities of alcohol which the evidence shows was consumed prior to this offending as well as the robbery offending is extraordinary to the point of being unbelievable. Whether the alcohol intake in the 24 hours before the offending was 200 drinks or 67 drinks it is clearly of an amount indicative of a serious alcohol abuse problem. That problem will need to be overcome for there to be any optimism as to his future prospects. On a positive note, although it appears he has partaken of drugs in prison the evidence was that he had not had a drink in prison so that he is now 16 months abstinent from alcohol.

Guilty plea

45. I find the offender is entitled to the 25% discount for entering his plea at the earliest time. There is no dispute on this point.

Youth

46. It is submitted for the offender that his youth should be taken into account. This is on the basis that the immaturity of an offender may contribute to the commission of the offence thus lessening their criminality. In this case in light of the upbringing referred to above this point gains added weight. Not having the benefit of being raised in a pro social fashion to begin with, the offender has by reason of his youth had little opportunity to be exposed to pro social influences, though sadly it may be that never occurs in a meaningful way.

47. I take into account favourably to the offender the fact of his youth. Putting aside questions of maturity my view is that a person who commits wrongdoing at an early age should be given an opportunity to change the path they are on, within reason.

48. The submission for the offender was that he is presently at a crossroads. I accept that submission and consider that it is a submission that carries more force than it does on many of the other occasions it is used. It is of greater relevance here because the psychological reports express the concerns that they do as to the trajectory that the life of this young offender is on. Subject to the intervention that is being sought having some meaningful affect the sad likelihood for this young man is that he will be released from prison and offend again with a prospect of a lengthy sentence being imposed and ultimately possibly leading to his institutionalisation. The offender is just 20. To date he has done nothing to earn the respect of the community. At the same time he has not been equipped with anything like the necessary skills needed to earn that respect and to behave in a pro social way.

Victim impact statement

49. A victim impact statement formed part of exhibit A. It notes the injuries set out above and adds bruises to his face and body. The victim was 20 at the time of the victim impact statement and so either 18 or 19 at the time of the offending. At the time of the offence the victim enjoyed playing rugby and was to start an apprenticeship the day after the assault, that is 2 January 2019. He is no longer able to play rugby and his apprenticeship was set back 3 months. He spent those 3 months at home recovering. He is anxious as a result of his trauma.

Totality

50. It was submitted for the offender that sentencing for this matter should be approached on the basis of sentencing for the robbery matter at the same time. As I understood the submission it was to say that the sentence imposed for the current offending should bear in mind the sentence for the robbery matter and arrive at a sentence which in combination with the robbery matter properly reflects the overall criminality of the offender at the time of committing both the current offence and the robbery matter, which occurred within approximately 6 weeks of each other. I accept that submission. This is because this offender is a product of a very disadvantageous upbringing and his conduct on both occasions was similar, and on both occasions the offending can be seen to be in some way connected to that upbringing. The similarities are of having drunk inordinate amounts of alcohol in the lead up to the offending followed by significantly irresponsible behaviour, or more specifically in this case, reckless behaviour. On the occasion of the robbery it was threatening people with an offensive instrument (namely a shard of glass; see the first psychologist report) and in the case of the reckless wounding it was the mindless intention to cause harm, again armed with a sharp implement, this time two knives. There are of course distinctions in the 2 occasions of offending. Based on the account of the robbery in the first psychologist’s report the offender asked to be assaulted and then provided his name before leaving. The facts of that case perhaps give cause for greater concern as to his mental well-being than those of the reckless wounding occasion.

51. The offending on both occasions is marked by a lack of inhibition or what may be called impulsivity. It is behaviour showing a lack of regard for the well-being of others which is a characteristic of the environment in which the offender was raised.

52. R v Holder [1983] 3 NSWLR 245 calls for an evaluation in a broad sense of the overall criminality involved in all of the offending and then a determination of what downward adjustment is necessary if any so as to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

53. In Cahyadi v R[2007] NSWCCA 1; 168 A Crim R 41 at [27] it was said:

54. “[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

55. In Taitoko v R [2020] NSWCCA 43 Leeming JA at [128] disagreed that an aggregate sentence may not be appropriate when dealing with offences that are temporally distant. Then at [132] his Honour observed that there is no rule that proximity in time of offending necessarily leads to a large amount of concurrency. That reasoning is consistent with what is said in Cahyadi. The fact that the robbery offence and the reckless wounding offence were two temporally distinct events, does not prevent an approach to the current matter which considers the matter as if sentencing for the offending at the same time, or more to the point, to approach the matter by applying the principle of totality, should that be considered appropriate, which I do. What is important is to arrive at a sentence for the present matter which, taking into account all factors, including the other offending and the sentence for that other offending, arrives at an overall penalty that reflects the criminality of all of the offending.

Special circumstances

56. I also accept the submission that special circumstances can be found in this case due to the need for rehabilitation. I note also that any sentence I impose will be a continuation of the first time in custody for the offender. A submission seeking to add weight to special circumstances on the basis of the Covid 19 situation was not well supported by the evidence of the offender. Nevertheless even if he was not receiving many visits the fact is for the past few months no visits at all have been possible and the uncertainty of life with the pandemic does in my view add to the arduous nature of incarceration.

Sentencing considerations

57. There is no argument but that there is no more appropriate sentence than a full-time custodial sentence; section 5 of the CSPA.

58. Section 3A sets out the purposes of sentencing. They are in short:

1. to ensure the offender is adequately punished;

2. both general and specific deterrence;

3. to protect the community;

4. to promote rehabilitation of the offender;

5. to make the offender accountable for his actions;

6. to denounce the conduct;

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

59. There is a clear need to protect the community from the conduct of this offender. I have queried above the need for general deterrence and to some extent punishment. Both those purposes in my view should not be given as greater weight in this case as may be expected due to the characteristics of the offender discussed above. That does not lessen however the need to denounce this behaviour.

60. In discussing the characteristics of the offender in relation to his prospects and his youth above it will be apparent that I consider there is a significant need for rehabilitation.

61. Ultimately the course that I will adopt largely accepts the submission of the offender being at a crossroads. The sentence will be significant enough for the offender to realise without perhaps wholly comprehending that his behaviour has been denounced, that is that it is not acceptable and is antisocial as well as to provide some period of protection to the community by simply removing him from it. It will also aim to protect the community by hopefully providing a lengthy period of supervision and enabling the offender to involve himself in rehabilitation. Of course should it be that the offender is unable to take advantage of that opportunity so that he reoffends then he will suffer the consequences of that behaviour including no doubt the revocation of his parole and further punishment for that further offending.

62. I was provided with some sentencing statistics which became Exhibit 3. The deficiencies in relying on the statistics is often commented upon. That is for the obvious reason that you do not know the particular objective and subjective circumstances of the matters reflected in the statistics. Yet at the same time the statistics show that for a section 35(3) offence approximately 80% of offenders are sentenced to prison. As noted above there is no issue in that regard in this case. The statistics that were provided show that of the terms of imprisonment for all offenders the majority of them were between 2 ½ and 3 ½ years with non-parole periods in the majority of cases being between one and a half and 2 years. In matters where there was a plea of guilty the head sentence was much the same statistically but there was a greater number of non-parole periods of between 12 to 18 months.

63. In balancing what I consider to be the severity of the conduct of the offender which I consider to be in the mid range of objective seriousness even allowing for his intoxication argument and the various purposes of sentencing set out above together with the offender’s subjective features and allowing for a 25% discount for his guilty plea and taking into account the form one matter the result I come to is that there should be a head sentence of 3 years. The non-parole period for this offending should be 18 months.

64. It remains however to determine the commencement date of this sentence. The submission for the offender was that it should commence on 12 November 2019 with which the Crown did not take issue. This date was put forward on the basis that it reflected a period of 7 months concurrency in the sentences. This would see the sentence for the reckless wounding charge expire on 11 November 2022, and the non parole period expire on 11 May 2021, with the minimum period in custody including for the robbery offence being from 12 February 2019 therefore being 2 years and 3 months. The overall head sentence would be 3 years and 9 months.

65. In my view had these matters been dealt with at the same time, and adhering to the principles of totality, and treating as indicative sentences the sentences of the earlier sentencing judge and my conclusion just stated, an aggregate head sentence of approximately 4 to 4 ½ years with a non-parole period of about 2 years was likely. The proportionality of the non parole period and the balance of term on this approach approximates the proportionality of the earlier sentence, and is a proportionality with which I agree and adopt, for the reasons stated above.

66. With these considerations in mind, the commencement date for the 3 year sentence for the reckless wounding charge will be 12 February 2020. In order to achieve the extrapolated 2 year non parole period to provide the offender the assistance that he requires the non parole period needs to expire on 12 February 2021, a period of 12 months from the start of this sentence. The non parole period that I impose will therefore be 12 months and not 18 months.

67. The legislation requires that I state the reasons for the non parole period differing from the standard non parole period. This is perhaps especially so in this case given I have assessed the matter objectively to be in the middle of the range of seriousness. The non parole period differs because of the 25% discount for the plea of guilty, the subjective matters addressed above and my finding of special circumstances, and also because of the need to tailor the non parole period in light of the present sentence of imprisonment being served by the offender.

Orders

68. Taking all of the above matters into account, including the Form 1 matter and the 25% discount for the guilty plea, I arrive at a non-parole period of 12 months, to commence from 13 February 2020 and expiring on 12 February 2021, with a balance of term of 2 years, expiring on 12 February 2023.

69. I make the following orders:

1. Amaroo Edward Davis for the offence charged under section s 35(3) of the Crimes Act you are convicted.

2. I sentence you to a term of imprisonment of a non-parole period of 12 months, to commence from 13 February 2020 and expiring on 12 February 2021, with a balance of term of 2 years, expiring on 12 February 2023.

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Decision last updated: 01 July 2020