R v Attard

[2020] NSWDC 443

District Court

New South Wales

Medium Neutral Citation:

R v Attard [2020] NSWDC 443

Hearing dates:

30 June, 1 July 2020

Date of orders:

1 July 2020

Decision date:

01 July 2020

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Aggregate Sentence: Head 6 years NPP 4 years – Referral to Drug Court.

Breach of CCOs: 1 month’s imprisonment.

Driving offences: s10A, DQ from driving 1 year.

Catchwords:

CRIME – SENTENCE

Two substantive crimes:

(1) taking a motor vehicle without the consent of the owner, with the occupant of the vehicle still inside it, aggrevated by inflicting actual bodily harm on the occupant: Crimes Act 1900, s154C(2);

(2) reckless wounding: Crimes Act 1900 s 35(4).

Three offences on s166 Certificate:

(3) intentionally damaging property at St George Hospital;

(4) driving whilst unlicensed;

(5) driving recklessly.

A call-up for breach of Community Corrections Orders for

(6) resisting 2 police officers in the execution of their duty.

25 year old man at the time of offences (1) to (5) - Recently released from custody on parole - Found by police in need of care because of substantial illicit drug intake - Shortly before discharge from hospital damages hospital property - Shortly after that escapes from custody of hospital security guard and “hijacks” victim’s car and required her drive him away, intending to go to another suburb - During course of journey, offender punches victim 3 times on left side of face, causing pain, swelling and bruising - Later, offender stabs victim with a multi-tool wounding her in the face 3 times, another wound in front of her left ear and a fith wound in her neck – Victim manages to escape from car when it was stationary – Offender starts to drive car but soon collides with another vehicle and then crashes into a brickwall – Offender is a drug addict with lengthy criminal history – Background of disadvantage and social deprivation – A “Bugmy” submission accepted – Guarded prospects for rehabilitation without compulsory drug treatment in custody or a special residential rehabilitation course on parole.

For (1) & (2) aggregate sentence: Head 6 years NPP 4 years – Referral to Drug Court

For (3) to (5) s10A only; 1 year DQ from driving.

For (6) additional one month’s imprisonment before commencement of aggregate sentence.

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drug Court Act 1998

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

R v Barker; R v Gibson [2006] NSWCCA 20

R v Wood [2015] NSWCCA 231

Spark v R [2012] NSWCCA 140

Category:

Sentence

Parties:

Regina – Crown
Sonny Attard - Offender

Representation:

Counsel:
C. Young – Crown
R. Khalilzadeh – Offender

Solicitors:
Office of the Director of Public Prosecutions – Crown
Legal Aid – Offender

File Number(s):

2019/00220448

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Sonny Attard appears before me this morning by audio visual link from Long Bay Gaol for sentence. I should indicate that Mr Attard’s date of birth is 21 February 1994. Police records indicate that his date of birth is 21 December 1994, but the same record also gives his correct date of birth. The Department of Corrective Services has correctly stated his date of birth. The police should amend their records accordingly.

2. Mr Attard stands sentenced because of a number of crimes which he committed on 9 July 2019. He was originally charged with eight offences. When the matter was before the Local Court, the first, fifth and sixth charges were placed on a s 166 certificate. The offender entered pleas of guilty to charges numbered 7 and 8. The second, third and fourth charges were withdrawn.

3. Yesterday the offender pleaded guilty before me to the first, fifth and sixth charges and I shall in due course sentence him for those offences, but the sentence to be passed for each of them is not controversial.

4. To understand what occurred on 9 July 2019, it must be firmly borne in mind that the offender was a drug addict and was affected by his addiction on that day. The two substantive offences for which the offender appears today are an offence contrary to s 154C(2) of the Crimes Act 1900. Offences against s 154C can be described as taking a motor vehicle with assault or with the occupant of the vehicle still inside the vehicle. The offender’s offence is an aggravated form of that offence, and the aggravated offence is that the offender intentionally inflicted actual bodily harm on the owner of the vehicle which it could be described as being hijacked. The maximum penalty for this offence is imprisonment for 14 years. Parliament has prescribed a standard non-parole period of 5 years. The other substantive offence to which the offender pleaded guilty is reckless wounding. That is an offence contrary to s 35(4) of the Crimes Act 1900 and carries a maximum penalty of 7 years’ imprisonment. Parliament has prescribed a standard non-parole period of 3 years.

Facts

5. On 9 July 2019 at 12.15pm, police observed the offender leaning over a guard rail on Railway Parade, Kogarah. The offender appeared to the police to be affected by illicit drugs. When spoken to by the police, the offender admitted that he had used prohibited drugs and told them that he needed assistance. The police called an ambulance. The offender presented to the Emergency Department at St George Hospital at 12.44pm on that day. He had told the police or the ambulance personnel who had attended to him near the Kogarah railway station that he had injected heroin, crystal methamphetamine and had used cannabis.

6. He was admitted to the hospital for further assessment. Triage nursing notes indicate that his level of consciousness was decreased and he was confused. Pathology tests and vital sign monitoring during the afternoon were unremarkable. He woke up around 7pm, his Glasgow Coma Scale being 13 at the time, an improvement from the reading of 11 at the time that he was seen in the Emergency Department. Urine drug screen testing during this short hospitalisation tested positive for amphetamines, cannabinoids, opiates and benzodiazepines. When he woke in hospital at 7pm he was assessed as being fit to be discharged.

7. Arrangements were being made for his accommodation on his release when the offender walked out of the hospital doors wearing only a hospital gown. He was stopped by security staff, but he became verbally abusive and physically aggressive, running into the sliding doors in the resuscitation area of the Emergency Department. The force of his impact caused the glass door panels in the door to crack and the door was partially dislodged. The offender was then restrained by hospital security staff. Soon after, still wearing his hospital gown only, the offender was accompanied by a security staff member into the ambulance car park in order to have a cigarette. When the officer released hold of the offender’s arm, the offender, to use police parlance, decamped. He ran across the car park and turned right into Gray Street. He was captured by closed-circuit television cameras running across Gray Street and into Queen Street. A block further along he came to Ocean Street, into which he turned left.

8. At this time, around 8.40pm, Ms Denise Kritikakis, to whom I shall refer as the victim, was parking her silver Toyota Corolla on the west side of Ocean Street, Kogarah, just outside her own unit complex. She was getting out of her vehicle when the offender ran up and opened the back driver’s side door. He got into the vehicle and began yelling at the victim to get back into the car and to drive him to Maroubra. The venue the offender wished to go in Maroubra is unknown. In an attempt to try to stop the offender, the victim told him to get into the front passenger seat and put on a seatbelt. However, she felt trapped by the offender’s conduct and sat back in the driver’s seat. She started up the car and waited for the offender to get into the front passenger seat. Instead of exiting from the back seat door and going around the vehicle, the offender climbed through the two front passenger seats and sat on the front passenger seat.

9. He was agitated and told Ms Kritikakis, “Hurry up, I’ll fucking kill you! Just drive!” The victim turned left into Queen Street and left into Brown Street. As they approached the intersection with the Princes Highway, the offender told her to go left so she turned onto the Princes Highway. The offender then began to threaten her, demanding that she not take him to a police station. The offender shouted at the victim not to turn left off the highway and not to take him back to the “cop shop”. The offender told her to drive over the median strip. The victim told him that she would drive straight ahead when the lights turned green. He became angry at what she told him and he demanded that she drive more quickly, that she was driving too slowly. He then punched her three times on the left side of her face. That made her face feel numb and caused bruising and swelling. That is the actual bodily harm pleaded in the court attendance notice.

10. When she reached the intersection of the Princes Highway and President Avenue, the victim turned into President Avenue and at the end of President Avenue turned left onto the Grand Parade at Brighton-Le-Sands. She then started driving north. Whilst she was doing that, she saw the offender searching through her handbag which was on the floor of the vehicle. He then searched through the centre console of the vehicle, locating a small multi tool which the victim had left in the centre console. The small multi-tool is about a penknife size and contains, inter alia, blades. It is a little longer than a standard biro when opened.

11. As the victim was driving along the Grand Parade the offender became agitated and his mood changed. He began screaming at the victim, telling her she was not driving fast enough. He again struck her on the left side of her face and neck. He then struck her with the multi-tool which he had found in the centre console, causing three wounds to her left cheek, a further wound to an area just in front of her left ear and wound to her left neck. Ms Kritikakis commenced to bleed, the blood flowing onto her clothing.

12. The offender directed the victim to turn left into Bay Street and then left into Crawford Road, Kings Road and finally left into Trafalgar Street, where they were forced to stop by a truck which was reversing in their direction. The victim told the offender that she would have to slow down and stop, and the offender yelled, “Don’t you try and run and get out of the car. I will kill you.” They were stopped and, distracting the offender with conversation, the victim put the vehicle into park, undid her seatbelt and fled from the car through the driver’s door. She ran away from the vehicle, calling for help. Another motorist stopped behind the victim’s vehicle, came to her assistance and moved her away. She sat down in a nearby driveway. Residents there came to her assistance and called 000. Her face was swollen and she was bleeding from the lacerations to her face and neck.

13. The offender got into the driver’s seat of the victim’s vehicle and drove away along Trafalgar Street. He drove out of Trafalgar Street and onto Bay Street, then turned left again into Crawford Road, and driving down Crawford Road collided with cars waiting at a red traffic light at the intersection of Crawford Road and President Avenue. The offender continued straight across the avenue and collided with the wall of 165 President Avenue, which on its southern side is in the suburb of Monterey. The collision partially demolished the wall and caused the victim’s vehicle to come to rest straddled across the wall which was partially destroyed. The offender was trapped in the vehicle and suffered a head injury.

14. Emergency personnel were needed to extract the offender from the victim’s car. He was taken by ambulance back to St George Hospital. He had suffered a subdural haematoma, that is a bleeding inside the skull occupying part of the area where the brain is normally. For that he needed surgery. He was placed in an induced coma. Blood and urine testing was undertaken at 12.14am on, I infer, 10 July 2019, albeit that the agreed facts say 9 July 2019. The results showed a low level of amphetamines in the offender’s system.

15. The offender at the time was not the hold of a driver’s licence from this State or indeed from any State. The three offences which I am asked to sentence the offender for on the s 166 certificate are intentionally damaging property, namely the door to the resuscitation area of the St George Hospital, effected at about 7pm, and driving whilst unlicensed and driving a motor vehicle recklessly.

16. Ms Kritikakis was taken by ambulance to the St George Hospital as well. Her condition deteriorated and she experienced difficulty breathing due to swollen airways and her injuries. She was intubated and she was also placed in an induced coma to assist with her recovery. She remained in the induced coma for three days.

17. The agreed facts tell me that she sustained bruising and swelling to the left side of her face, a superficial neck wound, three lacerations to her left cheek in the zygoma area, one of those to the depth of the bone and the other into subcutaneous tissue, and a wound in front of her left ear, which again penetrated into subcutaneous tissue. 21 stitches were applied to her wounds.

18. The offender was taken into custody on 16 July 2019 and has remained in custody since that time. The inference to be drawn is that was the date of his discharge from St George Hospital.

Seriousness

19. I am required to categorise the offender’s offending to ascertain the level of criminal responsibility or culpability. As far as the offence contrary to s 154C(2) is concerned, I am assisted by the decision of the Court of Criminal Appeal in R v Barker; R v Gibson [2006] NSWCCA 20. That was a decision of Howie J, with whom Basten JA and Hall J concurred. His Honour said this:

“[63] It seems to me that for an aggravated offence involving the offender being in company, the following factors may be relevant to an assessment of the objective seriousness of the offence: whether the offence was planned; the number of persons involved in committing the offence and their conduct; the type of threats made; the degree of violence displayed; the number of persons in the vehicle at the time of the offence; the degree of fear instilled in the victim; the period over which the vehicle is used; damage to the vehicle (if not giving rise to a separate charge); the place and time the offence is committed (for example whether at night or in an isolated area); the special vulnerability of the victim; and the motive for the commission of the offence. The list is not intended to be exhaustive. Although counsel referred to the value of the vehicle, I doubt that is a relevant consideration where there is no intention to permanently deprive the owner of the vehicle.

[64] Of course the objective seriousness of the offence will be increased if either of the other two aggravating elements of the offence are also present: that is that the offenders, or any of them, are armed with an offensive weapon or actual bodily harm is inflicted upon the victim. If they are present, then the nature of the weapon and its capacity to inflict serious injury, and the nature of the injury inflicted, will be relevant factors.

[65] In the present case the facts were not such as to bring the offence within the mid-range of seriousness. The offence was not planned and was committed in daylight hours in a suburban street. Although the threat was one to kill, it does not appear to have been taken seriously because the victim attempted to secure his car keys and was finally dispossessed of the vehicle not by fear of the consequences but by the use of physical force. There is nothing in the victim’s statement to suggest he feared for his life or safety. The amount of force used was not very great and it would be considered as a minor assault. There was no physical injury inflicted upon the victim and he was not especially vulnerable. The vehicle was recovered shortly after it was taken and without damage.”

The present case, of course, is very different to the case being considered by Howie J.

20. This offence was not planned, it was spontaneous and clearly driven by the offender’s drug addiction. He was the only person involved in committing the offence. He had no accomplice so that aggravating factor is not present. His threats, however, were terrifying, I accept. He threatened to kill. He was acting irrationally. His demeanour would have been terrifying for the victim. He acted in a violent manner, not only by inflicting the wounds that he did, but also by inflicting the actual bodily harm which I have described on two occasions. There was only one person in the vehicle. Of course if there were a child or children in the vehicle that would be a substantial aggravating factor, however, there was none. I accept that a great degree of fear was instilled in the victim by the offender’s conduct.

21. The period over which the vehicle was used has not been specifically stated, however the court attendance notice alleges that the offence occurred between 9pm and 9.10pm on 9 July 2019. This area of Sydney is well known to me. My late mother spent a substantial period of time in the St George Hospital prior to her death. I also attend the area myself for medical treatment when required. My daily commute from my home to this Court requires me to travel along the Grand Parade, and I often travel on Bay Street and on President Avenue and the Princes Highway at Kogarah and Carlton. I accept that the journey would have taken about ten minutes. It was not particularly long, but it did happen at night and on major arteries, being the Princes Highway, President Avenue, the Grand Parade and Bay Street.

22. The vehicle which the offender took was damaged. I do not know the extent of the damage, but it would have been damaged from the description given in the agreed facts. Since the offender took the vehicle from the victim and damaged the vehicle, which is not otherwise charged, I must take it into account.

23. The Crown concedes that Ms Kritikakis was not especially vulnerable.

24. The other factor raised by his Honour was the motive for the commission of the offence. Counsel for the offender told me yesterday afternoon that the Crown case was that the offender committed these offences because he had damaged the door at the hospital. However, that is not what the Crown submitted. The Crown’s submission is this:

“The offender had just escaped from security personnel at St George Hospital, who were holding him after his damage of the hospital door. The offender was subject to an ICO and made it clear to the victim she should not take him to the police.”

The Crown’s submission is that the motive was to escape punishment for his earlier actions in the hospital. That is consistent with the behaviour of the offender at the time. He escaped from the custody of the hospital security officer and ran away. He was seeking to escape custody and clearly he was concerned about being taken to a police station. I accept that his motive was to flee lawful custody and that is a matter that must be taken into account.

25. It would be erroneous for me to take into account in assessing this particular crime the wounds which the offender inflicted upon the victim because those are the subject of a separate charge, and it was only the punching causing actual bodily harm that is taken into account in assessing the objective gravity of this offence.

26. The Crown submits that this was a serious example of an offence pursuant to s 154C(2) and above the midrange of objective seriousness. The defence submissions acknowledge that the offender’s conduct was serious but ask me to take into account that the offending was opportunistic and impulsive, that the offending was sustained over a relatively brief period of time and that the assault was only the three punches to the face. The offending conduct could have been much longer. The offender, when he first “hijacked the car”, was not armed but he found in the vehicle an implement which he used to wound the victim, but, of course, I do not take that into account in considering the current charge. I accept that this is in the midrange of objective seriousness.

25. As far as the reckless wounding is concerned, I accept the Crown’s submission that this is above the midrange of objective seriousness for the offence of reckless wounding. The injuries sustained by Ms Kritikakis were significant and serious, debilitative. I accept, as submitted by the Crown, that the offender’s attack upon her with the multi-tool implement was a vicious or ferocious attack. There were a large number of blows addressed to the victim’s head and neck. They caused serious injury. I accept that that offence was above the midrange of objective seriousness. Furthermore, reckless wounding can occur without the use of a weapon or other implement. Wounding often involves cuts to the eyebrows caused by punching. Accordingly the use of a weapon is an aggravating factor.

26. Both these substantive charges are aggravated by the fact that at the time he committed these offences the offender was bound by an intensive correction order and also a Community Correction order to keep the peace. In committing these offences whilst subject to conditional liberty the offender aggravated the offences which he committed.

Criminal record

29. I turn to the offender’s criminal record. The first offence that the offender committed after attaining his majority was on 17 October 2012. He was 18 years old at the time. He was convicted of assault occasioning actual bodily harm. For that offence he was fined $1,500. His next offending was on 9 February 2013 when he was 18 years old. There was also a further offence on 15 February 2013. On 9 February he was charged with being armed with intent to commit an indictable offence and assault occasioning actual bodily harm, for which there were two counts, and contravening a prohibition in a domestic apprehended violence order, for which he was sentenced to imprisonment for 14 months with a nine month non-parole period. On 15 February he was charged with carrying a cutting weapon upon apprehension, and stalking and intimidating with intent to cause physical fear or the like, and that was covered by the 14 month sentence.

30. The next offence was on 8 September 2014 when the offender was 20. He was found guilty of breaking and entering a house and stealing. He was sentenced to a further 10 months’ imprisonment with a four month non-parole period. On 19 September 2014 he was found to be guilty of the offence of “joyriding”, being carried in a conveyance taken without the consent of the owner, for which he was imprisoned for four months. On 24 September 2014, and again at the age of 20, he was again found guilty of joyriding and damaging and destroying property. Again there was a prison term imposed.

31. On 8 September 2016 at the age of 22 he was found guilty of having goods in personal custody suspected of being stolen, for which he was fined. On 6 January 2017 at the age of 22 he was found guilty of shoplifting, for which a bond was imposed. On 26 February 2017 he committed the offences of destroying or damaging property, and intentionally marking premises without the consent of the owner, in essence a graffiti offence, and there was a second graffiti offence. For those offences he was fined. On 3 July 2017 he was found guilty of obtaining or attempting to obtain a prohibited drug by a false representation. For that offence initially he was given a bond, but he was called up for breach of the bond and he was imprisoned for one month for that offence. On 22 December 2017 he was found guilty of destroying or damaging property for which he was sentenced to nine months’ imprisonment with a three month non-parole period. On 21 December 2017, again at the age of 23, he was found guilty of shoplifting and that was visited with another gaol sentence.

32. On 9 July 2018 he was charged with possessing a prohibited drug. He was then 24 years old. He received a Community Corrections order, but breached it and on a call-up was given an intensive correction order for a period of five months.

33. On 5 January 2019 he was found guilty of shoplifting but that appears to have been a relatively minor offence as only a s 10A conviction was recorded. On 6 February 2019 he was guilty of the offence of having goods in personal custody suspected of being stolen. For that he was placed on an intensive correction order for five months commencing on 28 July 2019 and concluding on 27 December 2019. That is one of the ICOs that he breached by committing the current offences.

34. On 26 March 2019 he was charged with assaulting a police officer in the execution of his duty and with shoplifting. For those two offences the offender was imprisoned for three months between 26 March 2019 and 25 June 2019; that is, he was discharged from custody on 25 June 2019 and he committed these offences on 9 July 2019. However at the same time that he assaulted a police officer and committed shoplifting, he was charged with two counts of resisting an officer in the execution of the officer’s duty. For those, the Central Local Court imposed Community Correction orders for a period of 15 months. The offender has been dealt with for the breaches of the ICO in a way that I will advert to later, but I am asked to deal with the offender for breaches by the offender the Community Correction orders imposed by the Central Local Court on 8 May 2019.

35. In short, the offences of 26 March 2019 involve the offender stealing from the Woolworths on Elizabeth Street, Surry Hills, a packet of chocolates by trying to hide them underneath his jumper. He was detected by the shop detective, who tackled him on Elizabeth Street. There was present at the time a plainclothes senior constable of police, who identified himself as a police officer and sought to deal with the offender. The offender resisted his attempt to arrest him and in fact assaulted him, biting the senior constable on his index finger causing pain and discomfort. He also spat at the police officer and his saliva entered the mouth of the senior constable. That is the assault for which he was imprisoned, however he had resisted the arrest of Senior Constable Saunders and later at the Surry Hills Police Station resisted Senior Constable Anthony Pellinkhof, who was attempting to search him.

36. I indicated to counsel yesterday afternoon that in respect of the breach of the Community Corrections order I intended to impose a sentence of imprisonment of one month. For those reasons I revoke the Community Corrections orders imposed by the Central Local Court on 8 May 2019. In lieu of those orders, I sentence the offender to imprisonment for one month commencing on 16 July 2019, expiring on 15 August 2019

37. The significance of the offender’s criminal history is that I am unable to give him any leniency on sentence. However, the record that the offender has is consistent with longstanding drug addiction and other aspects of the offender’s personal life to which I shall now turn.

Personal circumstances

38. The offender was born in Sydney. His father worked as a diesel mechanic, his mother was a housewife and did not work. He initially attended Brighton Public School, but was a fairly average scholar. He then attended the Clemton Park Public School, where he completed his primary education. He then attended James Cook Boys High School at Kogarah, but was only there for one year. He then went to the Centennial Park High School and from years 8 to 10 inclusive he attended the Edgeware School at Hurlstone Park. In an affidavit that he swore on 22 June 2020 the offender pointed out that he attended a number of specialist schools because of his poor behaviour. He was expelled from all of them.

39. As to the Edgeware School at Hurlstone Park, he said this:

“Edgeware was regarded by students as ‘the end of the line’, for students with behavioural problems. My reading and writing were okay, however my favourite subject was art. I stayed at school to the end of year 10 and obtained my school certificate. At Edgeware, I was still a bad kid, but I was attending school with actual criminals. I saw students there earning $1,000 per week dealing drugs and committing break and enters.”

Later in his affidavit, after referring to his first gaol sentence, he said this:

“I remember my first time in custody as not being as bad as I thought it was going to be. I thought gaol would have been worse, but compared to the Edgeware school, it wasn’t too bad.”

40. After leaving school at the end of year 10, the offender took a year off doing nothing other than mixing with his friends. In the following year he attended Kogarah TAFE to study auto mechanics. He completed the first year of that course only. It was part of an apprenticeship that his father had arranged for him to become a motor mechanic. However, the offender did not like being an apprentice motor mechanic and quit that employment and that course.

41. He then took another year off, again doing nothing except mixing with his friends. He then enrolled in an onsite landscaping/horticulture course with TAFE at Auburn. He enjoyed that course and the work that he was doing there, and he tells me in his affidavit that is something to which he would like to go back. He also told me that in his oral evidence yesterday. What interrupted his landscaping/horticultural course after one year was the fact that he was sentenced to imprisonment again. It appears the offender has been largely unemployed when not in gaol since that time.

42. The offender’s parents were heroin users. In his affidavit the offender told me that he was not exposed to it. His parents did not use heroin in front of him. He told me that he did not understand their drug use until he was “an adult”. He clarified that yesterday in his oral evidence by telling me that he realised that his parents were drug users when he was about 15 or 16 years old. It became clear from his oral evidence that he was aware that his parents were behaving differently to the parents of many other people whom he knew, and one cannot exclude the real possibility that because of his parents’ heroin use and altered behaviour whilst under the influence of that drug, that the offender was conditioned to becoming a drug addict.

43. The offender was unaware of any domestic violence between his parents, but he did not spend the whole of his childhood with his parents. He told me that his father was incarcerated when he was a young child and he lived with his paternal grandparents whilst that occurred. His childhood clearly was disrupted. He also had a sister who, unfortunately, died towards the end of last year and the offender was unable to attend his only sibling’s funeral. However, his father was not the father of his sister and it appears that his sister mainly lived with her maternal grandparents. Again all of this points to the offender’s home life being affected by the parents’ drug use and criminal offending.

44. The offender was diagnosed with ADHD in year 2 or year 3. In year 3 he was prescribed Ritalin and later he was prescribed dexamphetamine. He tells me in his affidavit that both drugs were helpful, particularly in year 10 when he was doing his school certificate.

45. His parents separated when he was 16 years old. He tells me that his parents remained civil to each other. He described his life growing up in the family home as being “average”. Most children remark that their upbringing is good. The word “average” appears to have a negative connotation.

46. The offender was interviewed by Dr Richard Furst, a forensic psychologist, on two occasions on 15 January 2020 and 13 May 2020. Both interviews were via AVL from the Long Bay Hospital. From the history given by the offender, Dr Furst believed that the offender’s special schooling was because of emotional and behavioural difficulties in his childhood.

47. The offender started smoking cannabis at the age of 13. It was an ongoing habit throughout his teenage years and he maintained that habit until about the age of 18 or 19. However, he replaced the smoking of cannabis with the smoking of crystal methlamphetamine or ice. Ice became an ongoing habit in his late teenage years and in his early 20s. The offender was also a regular user of Xanax, a prescribed medication, but that was not prescribed for him. He also used other benzodiazepine sedatives in his teens and in his 20s. Dr Furst obtained a history that his mother was abusing benzodiazepines in the family home, so that again appears to have been learned behaviour.

48. According to Dr Furst’s history, the offender’s main drug of abuse in his adult years has been heroin. He first used heroin at the age of 18. He was involved with a young lady, who was also a heroin user, and between the two of them they were spending $2,000 to $3,000 a day on that drug. Dr Furst ascertained that the offender was using up to 2 grams of heroin a day in his 20s. Initially his drug use was managed with the methadone program, commencing as a 20 year old in prison. He also was managed with buprenorphine commencing in 2014 and then again in 2019. The offender told me that he took that drug because it stopped him using heroin. However, since his recent incarceration the offender has been placed again on a methadone program. Unsurprisingly because of his drug use the offender has suffered from hepatitis C in the past.

49. Dr Furst diagnosed a Substance Use Disorder for both opiates, benzodiazepines and methylamphetamine. That is hardly surprising. He also diagnosed ADHD, again hardly surprising since the offender would have been six or seven years old when that was first diagnosed. The doctor also pointed out that the offender had suffered from a subdural haematoma that he received when he collided the victim’s vehicle with the brick fence of a house on 9 July 2019, but the offender has recovered from that condition. That is what Dr Furst tells me and the offender also told me that, although he had fairly regular brain scans until recently, but none has been arranged for any time in the future.

50. When the offender was released from custody on 25 June 2019, he found himself homeless. He told me that he initially spent some time with his sister, but they fought and then he essentially couch-surfed at various places. He quickly reverted to drug use, hence the problem which took him initially to St George Hospital on 9 July 2019. That in essence was the result of a crisis. Exhibit 6 is a medical referral letter from Dr Peng Ho of Kogarah to the Mental Health Unit at the St George Hospital. The offender was taken to see Dr Ho by his mother on 8 July 2019, the day before these offences. The letter tells me that the offender’s mother was very concerned about the offender’s mental health and pointed out that he had sought to kill himself on the previous evening. The doctor noted that the offender had only recently been discharged from custody and was on parole. Dr Ho prescribed valium which had last been given to the offender on 1 July 2019 for the diagnosis of anxiety. Unfortunately the offender did not get to see the Mental Health team either on 8 July or 9 July prior to committing the crimes for which he stands for sentence.

51. The offender’s evidence yesterday graphically told me about his symptoms on the few days preceding 9 July 2019 and of his attempts to kill himself, and I accept that he was acutely disturbed and it is clear that he was hallucinating and had signs of a psychotic disorder. Of course this is no form of defence to these charges. It does explain, however, why the offences happened.

52. Insofar as the offender’s drug addiction commenced with his ingestion of cannabis commencing at the age of 13 and that he became addicted to illicit drugs in his teenage years, does to an extent mitigate his criminality or culpability because a 13 year old boy is hardly in the position to foresee the possible consequences of smoking cannabis and of becoming addicted to a drug and then being introduced to other drugs by the person who supplied him with the cannabis.

53. A “Bugmy” submission has been put before me by the defence. I accept that the offender’s background is one of disadvantage and social deprivation. The offender’s mother wrote a letter dated 24 June 2020. In it she attempts to blame Dr Ho for the tragedy which occurred on 9 July 2019. I cannot accept that it was the doctor’s fault. A referral to a psychologist or a psychiatrist would have taken some time, that is, there is always a waiting time between the referral and getting to see the psychologist or the psychiatrist. The referral to the local area Mental Health Team can be fulfilled immediately. The doctor did that. It was the failure of the offender and his mother to follow up that referral that lead to the tragedy which the offender’s mother described.

54. It is clear from the offender’s mother’s letter that she is hardly literate, her handwriting is childish and her spelling mistakes are egregious. Again, that points to social disadvantage as the offender was growing up. The offender’s mother is now on kidney dialysis and requires a kidney transplant. She asks me to let her son go home to look after her, but that the Court cannot do because the crimes which the offender has committed require a substantial prison sentence. There is no dispute between the parties about that.

The future

55. The offender has since his recent incarceration determined to keep off drugs. As I said, he is on a methadone programme. Dr Furst had available to him certain records. They included the records of Justice Health. One thing that the doctor records is this:

“Mr Attard was prescribed methadone, 50 milligrams daily earlier this year, including when assessed in January. I note he told Ms Robyn Rewell, Clinical Nurse Specialist in drug and alcohol, who assessed him on 24 February 2020, that he was injecting heroin in addition to his daily methadone dose, ie, about one ‘cap’ daily, putting himself and others at risk by sharing needles.”

However, the doctor’s report goes on to point out that the offender was now in receipt of 100 milligrams of methadone per day. The offender told me that he lied to Nurse Rewell in order to get a stronger dose of methamphetamine. I am prepared to accept Mr Attard in that regard. What he sought has occurred, his dosage has been increased. I do not accept that he was actually injecting heroin in gaol, albeit it is a notorious fact that drugs are available in gaol, although the supply has recently evaporated since visiting has been forbidden because of the COVID-19 health emergency.

56. The offender expressed to me his determination to stay off drugs. He is currently being assisted in that determination by the methadone program. His oral evidence yesterday indicated to me that he has an optimistic view of his future, in that he believes that his current determination will prevent him from reverting to drug use. Unfortunately my experience is that such determination often fails, especially with those who have an entrenched drug addiction. Mr Attard needs to realise that he should do courses in custody to assist him maintaining his determination not to revert to drug use and that he will need assistance when released back into the community to stay off drugs. The drugs are more commonly available in the community than they are in prison. Mr Attard needs to bear in mind a biblical saying, that the spirit may be willing but the flesh can be very weak. He needs to realise that he needs as much assistance as he can get to keep up his determination and his ability to stay off illicit drugs.

57. The only evidence about the future is contained in the assessment of Dr Furst. He said this:

“Unfortunately, Mr Attard’s pattern of drug use/dependence and his related criminal offending over recent years provides little basis for optimism in relation to his chances of remaining abstinent in the future. On the contrary, he presents as having a relatively high risk of relapsing into using drugs of abuse again, most likely heroin, methylamphetamines and benzodiazepines, and a medium to high risk of further drug-related reoffending, especially as he was prescribed methadone in November 2016 but re-offended on a number of occasions over the following two-three years.

Consequently, I would strongly recommend a more structured residential drug and alcohol rehabilitation program for Mr Attard when he is next eligible for parole, the logical choice being entry into the ‘Wayback’ program at Harris Park, one of the few rehabilitation centres in NSW that allows residents to continue taking methadone whilst engaging in drug and alcohol rehabilitation. Ultimately, I am of the view that entry into such a program would likely increase his chances of remaining abstinent from drug [abuse] over the longer term, would likely help him to avoid future offending, and would also help in relation to Mr Attard being less of a burden on his immediate family and less of a risk to the community at large over the longer term.”

It appears to me that the offender may be eligible for a compulsory drug treatment whilst in custody and I shall in due course make the appropriate finding and referral.

58. The offender told me that in the past he had done drug addiction courses in custody and on parole, but he was only doing so in order to get parole, to get out of gaol, and he really had not determined to give up drugs. He is determined on this occasion and I accept that. However, the prospects of rehabilitation should be seen as guarded and the offender must realise that he has to do a lot more to get off drugs because he might easily relapse when discharged from custody.

Consideration

59. A salient point here, however, is the offender’s remorse. That remorse is accepted by the Crown and by the Court as being genuine. He wept yesterday when expressing his empathy with the victim and, of course, the Court’s first consideration is not with the offender but with the victim. I trust that she has made a good recovery from her injuries. The Crown has not put before me any material to suggest otherwise.

60. The offender is entitled to a 25% discount of the sentences that ought be passed upon him because of his early pleas of guilty. That is no longer a matter of the Court’s discretion, that is mandated by Act of Parliament. The Crown accepts that the offender pleaded guilty at the earliest available opportunity, but that plea, of course, is also consistent with the offender’s remorse and victim empathy.

61. The defence has submitted that I should take into account the injuries that the offender sustained when he crashed the victim’s motor vehicle as being a form of extra curial punishment. I must point out that the crash occurred because of the offender’s reckless driving, rather than in the course of the crime he committed under s 154C(2) of the Crimes Act, and well after the reckless wounding contrary to s 35(4) of the Crimes Act. In other words the injuries that he sustained are due to the reckless driving and in my view could only be properly taken into account when considering that charge. Since the parties agree that only a conviction need be recorded for that offence, in my view the injuries that were sustained by the offender when he crashed the vehicle cannot be taken into account in dealing with the two substantive matters in which I am dealing. In any event for such injuries to be taken into account as extra curial punishment it must be shown that they constitute a serious loss or detriment: Spark v R [2012] NSWCCA 140. I am not so persuaded in this case in any event.

62. The offender, through his counsel, submits that this is a case in which there are special circumstances to break the statutory nexus between the head sentence and the non-parole period. The Crown accepts that the Court could find special circumstances based on the need of the offender to engage in treatment upon his release, his relative youth and the circumstances of custody, given the COVID 19 health emergency and the risk of a crushing sentence that would cause the offender to become institutionalised. All of those submissions have validity. I accept that there are special circumstances, in particular the need for the offender to be supervised and, if he does not go to a compulsory treatment gaol, for him to undergo a residential rehabilitation course for drug and alcohol addiction on his release on parole.

63. A remaining issue is when should the sentence commence. As I mentioned earlier, the offender was arrested on 16 July 2019, a week after the crimes that he committed, no doubt upon his discharge from St George Hospital. However, the period between 16 July and 3 August 2019 is referrable to the revocation of an intensive corrections order made by the Parole Board and the balance of the term that the offender had to serve was two weeks and five days. Accordingly, from 4 August to date the offender’s incarceration has been solely due to the current crimes. However, I have sentenced the offender to imprisonment for one month commencing on 16 July 2019, expiring on 15 August 2019 for the resisting the two police officers, following upon the revocation of the Community Corrections orders. In my view the current sentence should commence on 15 August 2019.

64. For the offence contrary to s 154C(2) of the Crimes Act, I start with a head sentence of six years and eight months imprisonment. I reduce that by 25% for the offender’s plea of guilty. That gives me a head sentence of five years. The statutory non-parole period would be three years and nine months. With a finding of special circumstances that is reduced to three years.

65. For the offence of reckless wounding I start with a head sentence of four years. I reduce that by 25% for the offender’s plea of guilty. That reduces that head sentence to three years. The statutory non-parole period would be two years and three months. With a finding of special circumstances I reduce that to two years. Those will be indicative sentences as I intend to impose an aggregate sentence.

66. I have determined the appropriate aggregate sentence is six years’ imprisonment. The statutory non-parole period would be four years and six months. I reduce that non-parole period to four years. Any shorter non-parole period would not, in my view, reflect the offender’s criminality. In that regard I am required by R v Wood [2015] NSWCCA 231 to fix a non-parole period that reflects the objective seriousness of the crimes and the need for specific and general deterrence.

67. In respect of the three offences on the s 166 certificate, I intend to record a conviction only pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999. However, the offence of reckless driving carries an automatic three year disqualification period, with a minimum disqualification period of 12 months. The offender did obtain a learner’s licence in September 2011, but that eventually was suspended for a fine default and the licence expired on 20 September 2016. The offender has been unlicensed since then. Any disqualification period I impose will not run during the offender’s incarceration. That is it will not run during the four year non-parole period.

68. Rehabilitation is important. If the offender does maintain his resolve and stays off drugs he will no doubt want to enter the workforce, as he told me, and he may need a driver’s licence to do that. Therefore, in the interests of rehabilitation I intend to impose the minimum disqualification period to maximise the offender’s chances on parole.

69. Sonny Attard, on the charge that between 9pm and 9.10pm on 9 July 2019 at Brighton-Le-Sands you did, without having the consent of Denise Kritikakis, the owner of a motor vehicle, namely a Toyota Corolla, took and drove it when Denise Kritikakis was in the said vehicle, and you did intentionally and recklessly inflict actual bodily harm on Denise Kritikakis, you are convicted. On the charge that between 8.40pm and 9.10pm on 9 July 2019 at Brighton Le Sands you did recklessly wound Denise Kritikakis in the face and neck, you are convicted. I sentence you to imprisonment. I impose an aggregate sentence with a non-parole period of four years commencing on 15 August 2019 and expiring on 14 August 2023. I impose a further term of imprisonment of two years commencing on the expiration of the non-parole period and expiring on 14 August 2025.

70. In respect of the sequence 1, 2 and 6 charges, you are convicted. I impose a conviction without any other penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999. You are disqualified from driving for a period of one year.

71. Any other orders sought?

MOORE: No, your Honour.

HARRIS: No, your Honour.

HIS HONOUR: Good luck to you, Mr Attard, and please bear in mind what I have told you. You have to have more than mere determination to stay off the drugs, you need as much assistance as you can get. Do you understand?

OFFENDER: Yes, your Honour.

HIS HONOUR: Thank you very much.

HARRIS: Sorry, your Honour, before you go, Mr Attard, is your Honour referring

HIS HONOUR: Yes. Take a seat, Mr Attard, I forgot about that.

HARRIS: Apologies, your Honour.

HIS HONOUR: That’s all right.

72. Pursuant to s 18B of the Drug Court Act 1998, I find that there are grounds on which the Drug Court might find the offender to be an eligible convicted offender within the meaning of s 5A of that Act. I refer the offender to the Drug Court to determine whether the offender should be the subject of a compulsory drug treatment order.

73. I direct the registrar to forward to the Drug Court the exhibits before me and my remarks on sentence once they have been transcribed.

74. You will find it of benefit to do that course, Mr Attard, if you can find a place in it. You mightn’t be able to get into it immediately, but you will be able to do it for a while, all right.

OFFENDER: Yes.

HARRIS: Thank you, your Honour.

OFFENDER: Thank you, your Honour.

HIS HONOUR: Off you go.

OFFENDER: Thank you.

HIS HONOUR: The Court will adjourn.

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Decision last updated: 13 August 2020