R v Austin

[2021] NSWDC 440

District Court

New South Wales

Medium Neutral Citation:

R v Austin [2021] NSWDC 440

Hearing dates:

20 August 2021

Decision date:

25 August 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of 6 years 9 months. Non parole period of 3 years 9 months.

Catchwords:

CRIME- wounding with intent to cause grievous bodily harm - Aggravated detain for advantage (in company)

SENTENCING - Relevant factors on sentence –

nature of wounding - knife used - life threatening injury - Form 1 - early guilty plea - history of disadvantage – born addicted to heroin - risk of institutionalisation - deprived background- drug use - mental illness – COVID -19 – Bugmy factors reduced moral culpability – deterrence- retribution –community protection- victim vindication

Legislation Cited:

Crimes Act 1900

Crimes (Administration of Sentences) Act 1999

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Cases Cited:

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146

Barbaro v The Queen (2014) 253 CLR 58

Barlow v R [2008] NSWCCA 96

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Chenhallv R [2021] VSCA 175

Donald (a pseudonym) v R [2021] NSWCCA 198

DPP (Cth) v De La Rosa [2010] 205 A Crim R 1

Hili v The Queen, (2010) 242 CLR 520; [2010] HC 45

Hookey v R [2012] NSWCCA 203

Jackson v R [2010] NSWCCA 162

Jinette v R [2012] NSWCCA 217

Markarianv The Queen (2005) 228 CLR 357

Mbele v R [2021] NSWCCA 182

McCullough v R [2009] NSWCA 95

Muldrock v The Queen (2011) 244 CLR 120

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

Newman v R [2015] NSWCCA 270

Perrin v R [2021] NSWDC 408

Queen v Pham (2015) 256 CLR 550: [2015] HCA 39

R v Dodd [1991] 57 A Crim R 349

R v Dole; R v Nguyen [2010] NSWCCA 101

R v Herring (1956) 73 WN (NSW) 203

R v Hookey [2018] NSWCCA 147

R v Hoskins [2021] NSWCA 169

R v Rayment [2010] NSWCCA 85; 200 A Crim R 48

R v Stonestreet [2020] NSWCCA 212

Veen v The Queen (No 2) (1988) 164 CLR 465

Worboyesv R [2021] VSCA 169

Category:

Sentence

Parties:

Cruz Angel Austin (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr S Fraser, Public Defender (for the offender)

Solicitors:
Good Legal Lawyers (for the offender)
Ms A Cabrera (for Director of Public Prosecutions)

File Number(s):

2020/00144426

Publication restriction:

I make a temporary suppression order for publication of the names of alleged co-offenders until the determination of their matters. Pseudonyms will be used in this judgment.

sentence

Introduction

1. Cruz Austin was born addicted to heroin. He is now 28 years old. Since he was a teenager he has spent as many years in juvenile detention or gaol as he has in the community. He is to be sentenced today for wounding another young man, with intent to cause grievous bodily harm: s.33(1)(a) Crimes Act 1900. That offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. When I sentence him I will also take into account on a Criminal Procedure Act 1986 Form 1 another serious offence - Aggravated detain for advantage (in company) – s.86(2)(a) Crimes Act 1900. That offence provided the context for the stabbing.

The guilty plea

2. Austin was arrested on 15 May 2020. He was refused bail. He has served his time of remand subject to all the restrictions placed on prisoners because of the COVID-19 pandemic.

3. He said he was guilty when the matter was in the Local Court. Accordingly the Court must allow a discount on sentence of 25% to reflect the utilitarian value of that plea: s.25D(2)(a) Crimes (Sentencing Procedure) Act 1999 (C(SP) Act). His counsel relied on two recent decisions of the Victorian Court of Appeal, I cited with approval in Perrin v R [2021] NSWDC 408, where it was said that:

“[A] plea of guilty entered during the currency of the pandemic is worthy of greater weight in mitigation and amelioration of sentence than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects: Worboyes v R [2021] VSCA 169; Chenhall v R [2021] VSCA 175:

4. Ms Cabrera, Solicitor for the Director of Public Prosecutions (DPP), has reminded me that unlike Victoria, there is a specific discount for the utilitarian value of guilty pleas in the C(SP) Act (NSW) and parliament has not (to date) amended those provisions in response to the pandemic. While I must apply the statute, an early guilty plea has value other than its purely utilitarian value. And, when I come to synthesis an appropriate sentence I cannot ignore the impact of the pandemic.

5. COVID-19 has now entered our gaols. The lack of visits, and the heightened anxiety and concern that creates are relevant factors that must be synthesised along with all other matters. I hear evidence, sometimes daily, about how prisoners are negatively impacted by COVID-19 restrictions: Mbele v R [2021] NSWCCA 182.

Agreed Facts

6. The complainant is one of a loose network of young people all known to each other. Many lived in a large Department of Housing complex near Myuna Way Mangerton, just west of Wollongong city. In 2018 the complainant’s ex- girlfriend, ‘TP’, commenced a relationship with Austin. Around 2^nd May 2020, the complainant took $4,500 cash, an ounce of cannabis and a car from the co-accused Levvell. Levvell wanted his property back and sent threatening text messages to the complainant’s brother.

7. On 3 May 2020 Levvell was contacted by police and told they had found the complainant in Mt Warrigal (near Shellharbour) driving Levvell’s car. He and Austin recovered the car but Levvell withdrew his complaint about its theft. Later that afternoon, Levvell began to look for the complainant again. He wanted the rest of his property back.

8. On the afternoon of 4 May 2020, an associate of Levvell’s, ‘CG,’ made contact with the complainant via Messenger to arrange for him to meet with Levvell to discuss returning the property. The complainant understood he was to meet with Levvell, return what remained of Levvell’s property and work out an agreement to pay back the outstanding money. He was directed to a house in Barrack Heights (southern Wollongong).

9. The complainant went to the address in Barrack Heights at about 7pm. ‘CG’ was there with ‘SB’, ‘TP’ and ‘Junior’. One of them told the complainant to “…sit the fuck down. You’re not leaving.” ‘Junior’ had a baseball bat with him. The complainant felt threatened. While at the house he was made to delete the earlier messenger communication he had had with ‘CG’. At 7:14pm he sent a series of text messages to his mother telling her, “I need help” and at 8:05pm “I’m being held hostage for like (Luke) fuck help”. The complainant’s parents went to Barrack Heights in the hope of locating him; unable to find him they contacted 000.

10. At 8.26pm, the complainant’s brother had a Facebook conversation with Levvell’s girlfriend ‘RD’ (and possibly Levvell.) He asked them if they had anything to do with the complainant being ‘kidnapped’. They denied this and told him that they were at home (in Johansson Crescent Mangerton).

11. Levvell arrived at the house in Barrack Heights sometime after 8pm. He was with ‘BB’ and an unknown male and a relation of ‘BB’s, who was driving. ‘CG’ and the others handed the complainant over to him. Levvell directed the complainant to get into the car and they travelled to Phillips Avenue Mangerton (about 21 kilometres and a 20-25 minute drive away). The complainant sat in the back of the car in between Levvell and the unknown male. ‘BB’ sat in the front passenger seat.

12. At around 8:33pm CCTV footage shows Austin, ‘TP’ and ‘RD’ walking in Fisher St near Phillips Ave Mangerton. When the car arrived at Philips Ave Mangerton, Austin, ‘TP’, ‘RD’ and ‘RC’ were already there.

13. Levvell forced the complainant to strip naked. He was told he would be taken to some nearby tunnels. Levvell, ‘RD’, ‘RC’, Austin, ‘BB’ and ‘BB’s relation’ all walked the complainant down the street. The complainant got away from them and ran towards and into a unit block. ‘RC’ and Austin gave chase.

14. The complainant saw that Austin was holding a knife. He began banging on doors. ‘RC’ ran into the building and he and complainant became involved in a wrestle. The two moved down the stairs and the complainant fell to the ground. Austin then came down the stairs and said, “Make me run, you fuckin’ little dog.” He tried to stab the complainant but missed. Austin then stabbed him once to the chest.

15. As the complainant lay on the ground Levvell come down the stairs. Levvell said something and kicked him to the head.

16. The complainant crawled up the stairs calling for help. At around 8.45pm a resident opened his apartment door and saw the complainant lying on the floor covered in blood and clutching at his chest. He called 000.

17. The complainant was able to tell the resident his name and where he was from. When asked who had injured him, he replied, “Cruz Angel Austin”. Another neighbour placed pressure on the wound. Others neighbours heard the commotion and saw various people leaving the scene. The first police officer on the scene took over first aid. He asked the complainant, “Who did this to you?” He replied, “Cruz Austin.”

18. Ambulance officers soon took over treatment. The complainant was by then in a critical condition. He had sustained a full depth penetrative wound to the chest, which had punctured his right lung and several arteries within the lung. He was taken to the Wollongong Hospital in peri-arrest, hypotensive and tachycardic, with a barely palpable pulse. CPR was commenced and a massive transfusion protocol activated; with emergency, ICU and retrieval team physicians all assisting. At that time he was not expected to survive.

19. The complainant underwent emergency surgery including; a finger thoracostomy and intercostal drain insertion, clam-shell thoracotomy and exploratory thoracotomy. There was an oblique wound which had the entry point at about the 2^nd intercostal space (between the ribs) midclavicular line. The internal opening was at about 3^rd or 4^th intercostal space.

20. The emergency surgery at Wollongong Hospital was able to revive and stabilise the complainant for transfer to a tertiary trauma centre at St George Hospital by helicopter, where he underwent further surgery.

21. On 14 May 2020 Austin was arrested by police. He has been in custody, bail refused ever since.

Objective seriousness

22. Malicious wounding is principally a result based offence. Generally speaking, the seriousness of the offence will depend significantly upon the seriousness of the wounding: McCullough v R [2009] NSWCA 95. And, again speaking generally where the wounding has serious consequences considerable weight needs to be given to general and specific deterrence and proper recognition of the harm done to individual victims.

23. Here the complainant, already apprehensive and scared by his detention, attempted to escape but was pursued by Austin. The complainant’s apprehension must have been increased because he knew that Austin had a knife. Austin may just have been trying to scare him, as he told a psychiatrist, Dr Chew. But that intent changed when, after his first blow “missed” he stabbed the complainant in the chest. That act was intended to harm and the harm occasioned was substantial. Only prompt intervention by those who lived at the scene, police, ambulance and the staff at the Wollongong hospital stopped this offence becoming a homicide.

24. The wounding was to the chest, increasing the risk of serious harm. A knife was involved, increasing the risk of serious harm. That a knife was involved is an aggravating factor, even though virtually every serious wounding offence involves a weapon of some kind: Newman v R [2015] NSWCCA 270; Hookey v R [2012] NSWCCA 203 at 67-74. The only thing that can be said on Austin’s behalf is that having stabbed his victim he did not persist with the knife attack and left the scene.

25. There is no evidence Austin armed himself intending to use the knife on the complainant. He told me in evidence he carried it because he was scared and feared for his safety. That reason cannot excuse his conduct. One reason why the law prohibits knives being carried is because they may, as occurred here, be used on unintended victims.

26. While I accept, his counsel, Mr Fraser’s, submission that the events that night were, so far as Austin was concerned, “fluid and unpredictable;” his choices in going to the location, participating in the detention, then in chasing his victim and then stabbing him when he was on the ground each require condemnation. At the time of the stabbing the complainant was as Ms Cabrera submits, “vulnerable” and “essentially defenceless.” There was no rational reason for him to do what he did; nothing provoked him to do what he did. For the reasons discussed at the hearing I cannot accept Mr Fraser’s submission to the contrary.

27. For reasons that I will explore later, Austin was not well equipped to make rational and considered decisions but objectively this was a serious example of a s33(1)(a) offence, moderated on an objective level only by the absence of any evidence that lasting physical harm was occasioned the victim. I do not however underestimate the potential for long term psychological harm. I, all too regularly, receive evidence of the consequences of such injuries. Although I have no information about the long term physical or any psychological consequences to the complainant the personal harm occasioned to him must be considered. The absence of a Victim Impact Statement does not give rise to an inference that the offence had little or no impact on him: s 30E (5) C(SP) Act

Relevant factors on Sentence

Maximum penalty

28. Careful attention to the maximum penalties and standard non-parole period’s is always required. They are important measures or guideposts to the exercise of my sentencing discretion.

29. Both counsel offered suggestions where in the range this offence fell. In her written submissions Ms Cabrera said “well above midrange:” Mr Fraser said “middle of the range.” With respect, neither description provides much guidance.

30. There is still a debate as to whether a sentencing judge must categorise offence in such relative terms: Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 at [88]; R v Spinks [2021] NSWSC 649 at [39]. But it is not in dispute that I have to have regard to the standard non-parole period and give it some content. In giving content to the standard non-parole period I must assess objective seriousness without reference to matters personal to the offender and wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 at [27].

31. While at times transparency is required I do not engage in staged approach to sentencing nor should I fix on a non-parole period and oscillate my sentence around it. There are reasons here to depart from the standard non-parole period of 7 years.

32. Both the maximum penalties and standard non-parole period must be considered along with all other relevant factors. They also invite a comparison between this case and other cases. The consistent application of principle requires careful consideration be given to other decision of this and appellate courts but “…sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.’’ Queen v Pham (2015) 256 CLR 550: [2015] HCA 39; at [46], applying Hili v The Queen, (2010) 242 CLR 520; [2010] HC 45.

Form 1

33. The Form 1 matter relates to Austin’s role in the complainant’s detention as he was taken down the street to the “tunnels.” His escape from that detention precipitated Austin’s chase and the subsequent wounding. As required by the C (SP) Act I will take these matter into account when determining the appropriate penalty for the wounding offence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146; and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]. I do not “in any sense” impose sentences for that offence: Attorney General’s Application No. 1 at [68]. It did however provide the context for this offending.

34. The matter on the Form 1 does operate to increase the sentence that would otherwise be appropriate. I take it into account part of the instinctive synthesis approach to sentencing explained by Justice McHugh in Markarianv The Queen (2005) 228 CLR 357, at [51]-[54]; [2005] HCA 25. The increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No. 1 at [39] – [42]. Sometimes, as here, that increase can be substantial: Attorney General’s Application No. 1 at [18].

Criminal record

35. Austin first came before the Childrens Court when he was 15. He spent time in juvenile detention. He first went to gaol in 2011 aged 18. There was a period between 2014 and 2018 when he stayed out of gaol but he was still involved in crimes. He completed a sentence subject to an Intensive Corrections Order (ICO) shortly before this offence. But that ICO had been subject to an earlier revocation order.

36. His criminal history is relevant to determining the proper sentence. It indicates that this offending was not an uncharacteristic aberration. It demonstrates his continuing disobedience towards the law. While prior criminal history cannot result in a sentence which is disproportionate to the gravity of the offence, here a more severe penalty is warranted with additional focus on retribution, deterrence and the protection of society: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.

Institutionalisation

37. The material before me shows that the offender, if not already, will after he has served the minimum period his offence demands, be at serious risk of institutionalisation. Accordingly, an attempt should be made, in both the community and the offender’s interests, to ensure that there is a sufficient period of conditional and supervised parole. Parole can help to protect the community and minimise the chance of recidivism. The risk of institutionalisation, even in the face of entrenched and serious recidivism, here justifies a finding of special circumstances: Jackson v R [2010] NSWCCA 162 at [24]; Jinette v R [2012] NSWCCA 217 at [103.

Other cases - pattern

38. The circumstances which give rise to the offence of wounding with intent to cause grievous bodily harm vary considerably but it is a rare case that wounding would not involve a weapon of some kind. I have had regard to statistics and the other cases to which I have been referred. A survey of wounding sentences was carried out by Fagan J in Newman v R [2015] NSWCCA 270.

Subjective case for offender

39. Austin gave evidence on 20 August 2021. He told me of the good and the very bad aspects of his foster care. He told me how he had been sexually abused and how he begged officer’s from the Department of Community Services (DOCS) to remove him from one foster carer. He told me of his time at Boy’s Town Engadine and how a disclosure of cannabis use led to him being taken from the one foster carer he had come to love.

40. In 2005 his sister died because she had been given methadone. His mother was eventually acquitted of a manslaughter charge in 2008 but that death has had a lasting emotional and psychological impact on him. He said he was “crushed” and had “lost all the happiness in his life.”

41. Austin has completed some prison based employment programmes but he has never applied himself to drug rehabilitation programmes, inside or outside of gaol. He said he now wishes to make the attempt again. He recognises he must do the EQUIPS programmes and the Violent Offender programme - VOTP. Since coming into custody he has not been able to access programmes. He told me he had been “putting in forms” but has not seen anyone to help him deal with his drug or mental health problems.

39. Before coming into custody he had worked for a period on a fishing boat. While he was working and living on the boat he was able to stay drug free because he was in a “good head space.” He told me once the work stopped following the COVID-19 close down he was homeless living with friends, including Levvell, and soon back using; that is injecting methylamphetamine. He said “if it wasn’t for the drugs this would never have happened”. He should “not have got invoked in someone else’s dramas.”

40. He confirmed the history given to Dr Chew and to the author of a Sentence Assessment Report. That history was not put in dispute. It is sad and tragic but not controversial. It is reflected in all the material before me, including the criminal history.

41. Austin is a 28 year old Aboriginal man. He has a significant substance abuse problem since he was far too young to make rational choices. He had a difficult birth and early development due to his mother’s heroin addiction. He receives a long acting opioid agonist treatment monthly.

42. He has had a long history of contact with Mental Health and disability services. He had input for dyslexia and learning difficulties from primary school. He was diagnosed with ADHD age 7 and was treated with various stimulant medications until the age of 15. After this he was treated with various other medications, generally in institutions.

43. His early childhood was marked by neglect and abuse. He reports helping his father break into houses. He had ‘special’ education at school and still cannot read or write well. He reported DOCS involvement from the age of 6. He reported childhood sexual abuse at the hands of a foster parent age 6-7.

44. He reported Juvenile Justice involvement in his life since age of 12, and he told Dr Chew and me how he was the victim of physical abuse while in their custody.

History of Deprivation

48. Austin’s childhood was marred by trauma and disadvantage commencing at (if not before) birth. His parents were both illicit drug users and the offender was born heroin dependent. He was removed from his parents and placed into foster care. At two of those placements he was abused by his carers. Prior to the removal from his parents he was witness to their drug abuse and was recruited by his father to assist in committing crime. The offender was in foster care at the time of his sister’s death and it is notable that his criminal history commenced shortly after this.

49. His background has left a mark and compromised his capacity to mature and learn from experience. His moral culpability is less than the culpability of an offender whose formative years have not been marred in that way: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. The effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case: Bugmy at [42-[43].

50. That said, social deprivation may impact on the purposes of sentencing in different ways. Childhood exposure to violence and other abuse may explain a person’s recourse to violence when angry or frustrated. Their moral culpability for their inability to control that impulse may be substantially reduced. However, the inability to control violent responses may increase the importance of protecting the community from the offender: Bugmy at [44]-[45].

Mental illness

51. The Court has received a report prepared by Dr Gerald Chew, psychiatrist. Having reviewed the offender’s case and history Dr Chew opined that the offender suffered from:

1. Post Traumatic Stress Disorder (PTSD),

2. Severe substance abuse disorder,

3. And probably a learning disorder or intellectual ability.

52. Given the limited capacity to reach a full diagnosis Dr Chew accepted that there is insufficient evidence to conclude that the offender has an intellectual disability. But, he concludes that the offender’s education and overall intellectual functioning is, at best, below average.

53. The existence of an untreated continuing mental illness - PTSD, combined with apparent intellectual (and educational) deficits permits some moderation of the need for general and specific deterrence. Amelioration of sentence is required because the offender’s moral culpability is reduced with a consequent reduction of the need to denounce the crime: DPP (Cth) v De La Rosa [2010] 205 A Crim R 1; see most recently Donald (a pseudonym) v R [2021] NSWCCA 198.

54. Dr Chew also concludes that as “Mr Austin has suffered multiple traumas since birth and further trauma has been experienced by ongoing and repeated institutionalisation…At the time of the offending behaviour he was likely suffering from the above conditions and was using significant amounts of substances.” He recommends treatment designed to address the following:

1. Abstinence from alcohol and illicit substances.

2. Consideration of adjunctive medication for complex PTSD

3. Continuation of OAT and follow up by AOD services.

4. Psychological therapy.

5. Monitoring of his mental state – particularly addressing emergence of mood episode and psychosis.

6. Formal neuropsychological testing may be beneficial and he may be able to access supports via the NDIS

55. Dr Chew suggests that with treatment his prognosis is improved and his risk of reoffending lowered.

Submissions

56. I have the considerable benefit of written and oral submissions from Ms Cabrera, for the DPP, and Mr Fraser, Public Defender, for Austin.

57. Ms Cabrera noted the ferocity and considerable degree of violence in the attack; despite there being only one direct stab wound. She submitted that the need for specific and general deterrence looms large when considering the principal offence and the requirement the Form 1 be taken into account. She notes there was some was a level of planning involved in the Form 1 offence. And, that this offence was not random. Austin came to where the victim was to taken and he carried a knife.

58. So far as the matter for sentence is concerned, he targeted the victim when he was vulnerable. A significant wound was inflicted. The attack, she said, was “uncalled for and unjustified.”

59. She noted that Austin had has been convicted of violent offences in the past and has been given the benefit of a finding of special circumstances on numerous occasions with recommendations to participate in rehabilitation but had not taken those opportunities. She submitted that his prospects for rehabilitation were low and that there is a significant risk of reoffending.

60. She concluded by stressing the importance of upholding the rule of law by imposing condign punishment on vigilante action such as this. Noting that offender’s motive for the commission of such a serious offence cannot lessen its objective gravity: Barlow v R [2008] NSWCCA 96; R v Rayment [2010] NSWCCA 85; 200 A Crim R 48 at [106] – [108]; R v Dole; R v Nguyen [2010] NSWCCA 101.

61. Mr Fraser acknowledged the seriousness of the offence. He put appropriate emphasis on Austin’s background of significant disadvantage, and exposure to negative influences, which precipitated his mental health problems and were likely to be the direct cause of his trajectory towards drug use and offending. He submitted, there were thus a number of related reasons why Austin’s moral culpability ought to be assessed as less than others. It was accepted that he has shown himself to be a repeat offender, but nonetheless it was submitted that the mitigating effect of Austin’s deprived background, coupled with his mental health concerns called for a greater emphasis on encouraging rehabilitation in the sentence to be imposed.

Synthesis

62. Austin’s use of drugs appears to be both a product of the poor role modelling of his parents and also a maladaptive means of self-medicating his PTSD. Whilst the offender’s use of drugs was not a mitigating factor it remains relevant, particularly in relation to his need for assistance with treatment in custody and while on parole.

63. One of the purposes of sentencing contained in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is “to protect the community from the offender”. It is obviously a significant consideration where violent crime is involved, but arises for particular consideration where crimes are committed by those whose moral culpability is reduced and for whom specific deterrence has reduced significance: R v Stonestreet [2020] NSWCCA 212 at [33]

64. Persons of Aboriginal descent are not entitled to any greater leniency than any other person. Nevertheless, as the High Court stated in Bugmy v The Queen the social exclusion and disempowerment of persons of Aboriginal descent and of Aboriginal communities seems to have made an environment of violence, alcohol and drugs more prevalent in the Aboriginal community than in the total population. The answer is not - longer incarceration. The answer lies in treatment that neutralises or reverses the effect of social exclusion, disempowerment, discrimination and violent environments: R v Hookey [2018] NSWCCA 147, per Rothman [61] - [64]; R v Hoskins [2021] NSWCA 169.

65. Austin was unable to express any regret or contrition or apology to his victim. He has yet to learn to care for himself, let alone others. His life and moral outlook has been formed by his early deprivation, his drug use and life on the streets. He has had only a very brief opportunity of work and stable accommodation. He has expressed a desire to learn to live a normal life in the community but as yet he has had no real experience of, or shown any aptitude for, normal community life. All these matters call for some moderation of penalty.

66. The community will be protected from Austin while he remains in custody but he must be released and when released he should be in a better position to deal with the stresses of community life than when he was gaoled. He will, after serving the lengthy minimum term his crime deserves, require considerable assistance, monitoring and supervision. He will need the assistance proposed in the Sentence Assessment Report. He will need the sort of help Dr Chew recommends. He will need that need help in custody and on release. He will need to earn his release. The State Parole Authority will not make a parole order unless it is satisfied that it is in the interests of the safety of the community: s135 Crimes (Administration of Sentences) Act 1999.

67. Ms Cabrera urged me to put considerable weight on the principle of general deterrence. But here, Austin put little thought into what he was doing or the consequences for his victim or frankly himself. He did not have the capacity to make such moral judgements. Heavy sentences imposed on others did not deter Austin. General deterrence has little utility in reducing the general incidence of crimes such as this, where offenders are often incapable of making rational choices in their own interest, let alone in the interests of others. But this sentence must attempt to bring home to this offender, and others, the risks involved in carrying knives particularly when they embark on crimes involving the threatening and detaining of their victims.

68. There is also is a general community’s expectation, reflected in the maximum penalty and standard non-parole period, that anyone who stabs another in the chest in circumstances such as this will suffer severe punishment. A proper sentence marks the Court's view of the seriousness of the crime, and should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203, at 205.

69. Mitigating factors will be given appropriate weight; given Austin’s background he should not be punished as severely as someone who did not have his longstanding disadvantages and mental conditions but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of what he did to his victim: R v Dodd [1991] 57 A Crim R 349 at 354. The High Court has made it quite clear that sentencing courts have an obligation:

• to vindicate the dignity of a victim of crime,

• to express the community's disapproval of the offending, and

• to afford such protection as can be afforded by the state to the vulnerable against repetition of the offending.

70. Further, one of the historical functions of the criminal law has been to discourage victims and their friends from resorting to self-help, and the consequent escalation of violent vendettas between members of the community. Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, at [52] to [58].

Orders

71. I take into account the early plea of guilty. I have reduced the sentence I would otherwise have imposed by 25% in accordance with s 25D Crimes (Sentencing Procedure) Act 1999.

72. Taking into account a finding of special circumstances and the matter on the Form 1, you are convicted and sentenced to a term of imprisonment of 6 years 9 months consisting of a non‑parole period of 3 years 9 months to commence on 14 May 2020 and expire on 13 February 2024. You will be eligible for consideration for release to parole on 13 February 2024 to serve the balance of term of 3 years to commence on 14 February 2024 and expire on 13 February 2027

**********

Decision last updated: 25 August 2021