R v Awad

[2020] NSWDC 711

District Court

New South Wales

Medium Neutral Citation:

R v Awad [2020] NSWDC 711

Hearing dates:

2 April 2020

Decision date:

02 April 2020

Jurisdiction:

Criminal

Before:

Norrish QC DCJ

Decision:

Sentenced to 2 years 6 months imprisonment; non-parole period 1 year 3 months imprisonment.

Catchwords:

CRIME – sentence – reckless wounding – unplanned – argument over money – victim and offender known to each other – lengthy criminal history for offences of personal violence – substantial substance use disorder – plea of guilty – remorse - special circumstances – multiple health conditions both mental and physical – COVID-19.

Legislation Cited:

Crimes Act 1900.

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Davis v R [2020] VSCA 60

De La Rosa [2010] NSWCCA 194

Makarianv R [2005] HCA 25; 228 CLR 357

R vEngert (1995) 84 A Crim R 67.

R v Israil [2002] NSWCCA 255

R v Smith (1987) 44 SASR 587

Category:

Sentence

Parties:

Regina (Crown)
Talal Awad (Offender)

Representation:

Counsel:
Mr Funnell (Offender)

Solicitors:
Mr Staple (DPP)

File Number(s):

2019/00020191

Publication restriction:

No

Judgment

1. The prisoner known as Talal, or Teri, Awad appears today for sentence in relation to an offence shortly described as reckless wounding, committed on 19 January 2019 at Padstow, when he wounded a man by the name of Mohamed Naaman who was known to him. The facts reveal the two men had known each other for some time.

2. The maximum penalty for the offence for which the prisoner is to be sentenced is, according the Crown’s coversheet, seven years imprisonment, with a standard non-parole period of three years imprisonment. The prisoner has been in custody since his arrest on 19 January 2019 and appears before me, as do both counsel, via audio visual link because of the current COVID‑19 crisis. Because there is a standard non-parole period I am required to have regard to s 54A(2) Crimes (Sentencing Procedure) Act 1999. That provides that a standard non-parole period represents the non-parole period for an offence listed in the Table of the Division taking into account only the objective factors affecting the relative seriousness of that offence in relation to the middle of the range of objective seriousness of that offending.

3. I am also required to have regard to s 54B and particularly s 54B(2) of the Act which provides that the standard non-parole period for an offence is a matter to be taken into account by a Court in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence, including the non-parole period for that offender.

4. Of course, other underlying provisions specifically relevant to this sentencing exercise are s 3A of the Act, which sets out the purposes of sentencing. In this particular matter one is required to ensure the prisoner is adequately punished. I am required to give weight to both general and personal deterrence, although there is a factor in the prisoner’s background that is relevant to both matters as I would see it. There is some degree of requirement having regard to the character of the offence and particularly to the criminal history of the prisoner to have regard to protection of the community. I am required to make the prisoner accountable for his conduct, denounce it and recognise the harm done to the victim, but I am also required to promote his rehabilitation.

5. S 5 of the Act provides that a Court must not sentence an offender to imprisonment unless the Court is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. It is quite clear in this matter having regard firstly to the fact that the prisoner has been in continuous custody now for almost 15 months, having regard to his criminal history and having regard to the offence that he has pleaded guilty to and the objective circumstances of it, that a term of imprisonment must be imposed. That is the only practical course that can be taken.

6. The ‘Statement of Facts’ is a very short but it invites conclusions which I will identify as I proceed. As I said the victim and the prisoner where known to one another. They were in fact, associates. The character of their association is not of significance. The facts state that the prisoner and the victim had a “verbal argument over money”, a physical struggle occurred. This occurred in the home, importantly, of the prisoner not the victim. During the course of a physical struggle, the facts state that the prisoner “reached over, grabbed a nearby knife with his right hand”, grabbed the victim’s throat with his left hand, pushed the victim against the door, thrust the knife towards the victim stabbing his left forearm causing “immense pain”. The character of their relationship beforehand was probably reflected fairly accurately in what the victim then said, “Brother you stabbed me”.

7. There was obvious injury to the victim’s arm with some muscle “belly” protruding from the forearm. The victim ran to the door. He asked the prisoner to look at what he had done. The prisoner offered assistance which is of some relevance in this sentencing exercise, offering to “wrap it up” for him, and he tied some material around the arm which I take to be a gesture of good faith. The victim said he was feeling dizzy. I do not for a moment believe the prisoner had full knowledge of the extent of the injury beyond what he could see. He told the victim to “get the fuck out of here” and told him not to come back. The victim walked to his car and drove himself to Bankstown Hospital where he was treated.

8. The facts state that he spent two days in hospital. The laceration was 5 to 6 centimetres long with some “muscle belly” protruding. He needed surgery to repair the severed muscles. There is no evidence of any continuing disability and I accept of course that the injury is a substantial injury. It is not pleaded that prisoner intended grievous bodily or serious bodily harm to the victim. It is quite clear on the facts available to me that the crime was not only unplanned and unpremeditated, but in fact arose out of a mutual struggle between the two men where the prisoner took hold of a knife that was readily available and not being carried by him for the purposes of causing harm or threatening any person. The knife itself was photographed. It is identified in the submissions of counsel for the prisoner as a “steak” knife. It certainly is a sharp serrated knife fairly described as a domestic instrument that would have been readily available without any forethought on the part of the prisoner. It is clear to me, notwithstanding his criminal history, that the prisoner’s conduct was reactive to the circumstances in which he found himself.

9. Thus, in sentencing the prisoner and considering the objective seriousness of the offending, having regard to the character of the injury, having regard to the fact that the Crown is correct to point out that there is an aggravating factor arising under s 21A(2)(c) that the offence involved the actual use of a weapon, that the offence does fall, as the Crown concedes, below the middle range of objective seriousness. Where it fits within the range of offending below the middle range of objective seriousness, which Spigelman CJ once described as “not a narrow band”, is a matter that I was asked by counsel for the prisoner not to specifically identify. In my view I do not believe I could place it close to the middle range of objective seriousness, but it is not an offence at the lowest range of offending. It is an offence, to my mind, if there is a band to be identified, midway between an offence at the cusp of the middle range of objective seriousness and the least serious offence of its type. I bear in mind the use of a weapon, although the weapon was of a domestic character and having regard to the lack of premeditation and planning.

10. I have had regard to the issue of whether the prisoner’s record of previous convictions is an “aggravating factor”. The Crown submits that it is, in the context of what is provided in s 21A(2) of the Act. However in this particular matter whilst his record is certainly one, as his counsel concedes, that does not entitle him to any particular leniency, it is not a matter to my mind that is relevant to the assessment of the objective seriousness of the offending.

11. It is correct to say that on occasions a person’s previous convictions, particularly in relation to an offence of personal violence, may be very salient in assessing the objective seriousness of the offending. But the circumstances of this offending on the facts available to me appear to arise “uniquely” to the circumstances in which the prisoner and the victim found themselves, I could not conclude that the prior record of convictions, substantial as it is, contributed to the conduct of the prisoner on this particular occasion.

12. In that regard I pause for a moment to reflect upon his criminal history. It extends back over 30 years. He has a finding of a conviction for assault in 1988 and therein after he has a large number of convictions for a range of offending, including I note in the ACT very early in the piece for possess, sale and supply of the prohibited substance heroin, for which he was sentenced in 1992 to three and a half years imprisonment with a non-parole period of nine months. In respect of matters that might be seen as more pertinent to the assessment of the relevance of his criminal history to this offending, I note putting aside another conviction for supplying prohibited drugs on an ongoing basis in New South Wales in November 2003 for which he was sentenced to three years two months imprisonment with a non-parole period of two years two months.

13. He has a conviction in 2005 for robbery whilst armed with an offensive weapon for which he was sentenced to four years and nine months with a non-parole period of two years and nine months, reflecting a finding of special circumstances with a condition that he receive drug counselling. He also has a conviction for demanding property with menaces in March 2010 for which he was sentenced in the Local Court to a term of imprisonment of three months. On the same occasion, in respect of an offence committed on the same date, he was convicted of assault occasioning actual bodily harm and sentenced to 15 months imprisonment with a non-parole period of eight months. He had a conviction in 2010 for resisting and assaulting an officer in the execution their duties.

14. He has a conviction in 2012 for aggravated assault with intent to rob for which he was sentenced to a substantial term of imprisonment of four years with a non-parole period of 30 months, taking into account a number of matters on a Form 1.

15. He has convictions in December 2014 at the Bankstown Local Court for assaulting an officer in the execution of that officer’s duty, common assault and resisting an officer in the execution of his or her duty.

16. In July 2017 he was sentenced to an aggregate sentence of 24 months imprisonment with a non-parole period of 15 months imprisonment in respect of a number offences which included assault occasioning actual bodily harm, stalk or intimidate with intent to cause physical harm and contravening an Apprehended Domestic Violence Order. He also has relevantly a conviction in December 2016, taking into account in respect of the sentencing in July 2017, of having in his custody a knife in a public place. The circumstances of the prisoner as he found himself on this occasion that I am concerned with directly do not invite the same suspicions as that previous finding of guilt which was included within the aggregate sentence of 24 months.

17. The criminal history of the prisoner to a large extent reflects a number of matters relating to his circumstances revealed in other evidence that has been provided to me. For example I have a psychiatric report from Dr Calvin dated 19 February 2020, supplemented by a report dated 29 March 2020. I pause for a moment as I earlier observed when I made my introductory remarks, these proceedings are occurring in the context of events that are currently referred to as the COVID-19 or coronavirus crisis. This has had a severe impact upon the operation of the Courts, with both accused persons in custody and parties appearing via AVL.

18. This particular prisoner’s circumstances arising from material within the psychiatric report and the evidence he gave before me which I accept, reflect particular matters that need to be taken into account, both relevant to the assessment of the appropriate sentence, which is not concerned solely with regard to the maximum penalty and/or the objective circumstances of the events, but also other matters pertinent to sentencing an offender as discussed by the High Court in Makarianv R [2005] HCA 25; 228 CLR 357. I will come back to the prisoner’s evidence that he gave before me in a moment. But by reference to the psychiatric report, which is supported by extensive records held by Justice Health relating to the circumstances of the prisoner, it states that he has had a number of substantial psychiatric and psychological issues to contend with for a long period of time. His criminal history reflects a long involvement with prohibited drugs in a range of ways, both for personal benefit and arising out of his dependency upon them. Thus, it is quite clear that the prisoner is, as the psychiatrist identifies, a person who has a substantial opioid use disorder and stimulant use disorder which has no doubt existed for many years.

19. Arising out of his many incarcerations, he has been the subject of a particular physical assault in 2004, leading to symptoms consistent with a diagnosis of post-traumatic stress disorder. This disorder has been noted by Justice Health and has sought to be addressed by them over the years since the relevant incident. He has also suffered short lived episodes of psychotic symptoms over a number of years largely arising out of his drug use.

20. He has received psychiatric care in the community, being admitted twice to psychiatric hospitals. He, at one stage, threatened to cause harm to himself with a firearm and was subsequently admitted to the Concord Psychiatric Unit. He had admissions in 2015 to 2016 for treatment of drug induced psychosis. His medication regime has been consistent, but he has had a combination of medications including antidepressants, mood stabilisers and antipsychotic drugs for a large period of time and it is well known that those drugs are not only prescribed on the basis of an appropriate diagnosis, but have no real affect upon a person unless there is a condition there to be treated.

21. His use of drugs has decreased over time but consistent with his history of drug use he has been diagnosed with Hepatitis C and cirrhosis of the liver. He has also been reported to suffer from epilepsy. He has been diagnosed with epilepsy since 2011. The diagnosis of Hepatitis C and related conditions arose in 2015. He suffered various head injuries over the years from other assaults.

22. It is said by the psychiatrist in his evidence that his PTSD creates quite a number of symptoms including distressing memories, nightmares, prolonged stress, avoidance, negative alterations in his cognitions and mood, frequent mood swings and altered biological functions. The psychiatrist also concluded in the context of the clinical evidence in the psychiatric notes the prisoner had experienced episodes of what he described as “major depression”. He requires medical treatment both in relation to his psychiatric conditions and in relation to his medical conditions, particularly the chronic liver disease and Hepatitis C.

23. His drug addiction over many years of has led not only to frequent incarcerations, but to erratic behaviour in a range of ways. His life as described by psychiatrist is largely “chaotic”. His circumstances in custody are onerous in the context of his experience of an assault in 2004 of a particular character which I will not place on the record, to which I made earlier reference.

24. He had, when in the community, an itinerant lifestyle. He requires abstinence from recreational drug use, which of course will be a difficult matter for him to achieve. I bear in mind in this regard, as I must in sentencing the prisoner, that he was born in 1968 according to the Crown’s records, 1974 according to the psychiatrist and thus is a mature man. I point out that the victim of this reckless wounding was a gentleman of mature age, only six or seven years younger, assuming that the prisoner was born in 1968.

25. The prisoner needs assistance from community health services. He requires regular medication, particularly to treat depression symptoms and PTSD. It was suggested that he should undertake a form of psychotherapy and would require a Mental Health Plan through his GP to receive the relevant therapy. The psychiatrist opined that a lengthy custodial disposition would be “counterproductive”, bearing in mind the burdens of his current state of institutionalisation. The prisoner reported to the psychiatrist that his mental health worsens when in a custodial situation.

26. The supplementary report of the psychiatrist addresses the circumstances of his custody, both by reference to what was diagnosed or reported upon in February 2020 and also by reference to the current circumstances of people in custody in New South Wales given the coronavirus outbreak within our community. The psychiatrist said that in light of the prisoner’s apprehensions whilst in custody and with PTSD reliving a trauma of the past arising out of his custodial circumstances, he would find prison more burdensome due to that psychiatric condition. I think that would go without saying in the circumstances.

27. Concerning the issue of the relevance of COVID-19 to matters with which I am now concerned, the psychiatrist said there was:

“Emerging data to support the view that those with chronic conditions (such as this prisoner) are at a higher risk of severe health complications if they become infected with COVID-19”.

28. The prisoner’s chronic liver disease places him in the high risk category compared to prisoners without any co-morbid medical conditions. He said that if the prisoner contracted the disease it is likely that he will be segregated for long periods of time which may further worsen the symptoms of his PTSD.

29. To that end I turn to the prisoner’s evidence. He said he was 51 years of age so, I am assuming for the present time the birth date of 1968 is correct. He is currently in a section of Long Bay Gaol associated with the Long Bay Gaol Hospital, although he is moving within the general population. Last week he complained of ill health with symptoms of diarrhoea, upset stomach and hot flushes, which from my understanding of the coronavirus, are not of themselves symptomatic of that disease. He was separated from his cell mate and since that complaint has been in isolation. He has been tested and he is negative to the virus which is a good sign. Since last Thursday he has not been allowed out of his cell for extended periods of time and on the occasions that he has been allowed out, it has only been for a very short period of time to have a shower. He has not been able to make legal phone calls. His temperature has been taken three times by a nurse, which is very cursory treatment. He does not have access to a hand sanitising liquid, but he does have access to soap. At the moment he is still isolated and he does not know how long for, that is a matter within the discretion it seems of Justice Health in conjunction with the Corrective Services Department. I cannot make any comment about this beyond noting the fact that he is isolated at a time when such isolation of itself might prevent him from being contaminated with the coronavirus but would aggravate those symptoms arising out of his PTSD.

28. However, he observed that in the area where he is currently incarcerated, at the time of him being placed in isolation, there have not been any particular actions taken which would reflect the social distancing which we are now well familiar with within the wider community.

29. I might just point out, as it turned out subsequent to hearing the evidence in this matter and the submissions of the parties, two co-accused who are apparently at the same gaol, were produced to me in a small audio visual room, sitting side by side to present themselves for a sentence matter in which they were jointly involved. I make no criticism of those arrangements, I do not know the background of that, but on reflection I separated them so they could be dealt with separately. It may be that the reality is that the Corrective Services Authority by reason of the very character of the environment to which people are held, are having difficulty separating people from one another and I take that into account.

30. I accept, as it is relevant to this sentencing exercise, the essential submission by learned counsel for the prisoner, that it would be difficult for the prisoner to protect himself in custody as much as he could in the wider community and that whilst in custody there are substantial risks to his health. I bear in mind of course what has been said in the past about the fact that the mental health and physical health of prisoners is a matter for the custodial authorities.

31. As the Court of Appeal in South Australia said in the decision of R v Smith (1987) 44 SASR 587, generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the prisoner by reason of his state of health, or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.

32. In relation to the Smith case, it was the first, if my memory serves me correctly, AIDS case dealt with by a Court of intermediate appeal. I was involved in the first such case in New South Wales which had to be taken to the High Court to get the Court of Criminal Appeal to address the issue. Be that as it may, it is quite clear that any condition suffered by an offender that will create a risk of adverse effect upon a prisoner’s health is a relevant matter to be taken into account. Also, as is clear in relation to the mental health of the prisoner, if the circumstances of custody may impose an additional burden upon the relevant prisoner, in this case Mr Awad, it is a relevant matter in assessing the appropriate sentence.

33. I hasten to say, without pointing to authority, that there are limits to which one can apply these matters. Persons convicted of very serious crimes requiring condign punishment, even presenting with significant mental health issues or physical issues, will not have the option provided to them of the service of a penalty in the community when no other penalty other than a term of imprisonment can be imposed. But, having said that, the matters particularly identified in the submissions of learned counsel for the prisoner, are relevant to the assessment of this case.

34. In the context of the very helpful written submissions from counsel for the Crown and counsel for the offender, clearly the threshold created by s 5 of the Act has been crossed. In this particular matter I have concluded that there are ‘special circumstances’ pursuant to s 44 of the Act, noting all that has been put to me in the written and oral submissions of the respective parties. I will come back to that aspect of the matter shortly.

35. I have assessed the objective seriousness of the offending in the context of what I am required to do under ss 54A and B of the Act. I have also assessed the relevance of the prisoner’s criminal history. In the circumstances of the offending, noting the fact that the prisoner is not entitled to any particular leniency, it is quite clear that a term of imprisonment must be imposed. That is the reality of the situation given the time that the prisoner has been in custody. But the other matters that I am required to take into account arising from the evidence of the prisoner and the psychiatric report also are pertinent.

36. In that regard particularly, I note these matters if I can deal with them in summary, bear in mind I am delivering this judgment effectively ex tempore having had another sentence matter before me between hearing submissions in this matter and delivering this judgment.

37. Firstly, I have had regard to the various principles that relate to the sentencing of an offender who is proven to suffer from a mental illness or intellectual handicap or “other mental problems”. In that regard I specifically cite the decision of McClellan CJ at CL in De La Rosa [2010] NSWCCA 194 particularly at [177]-[178]. His Honour noted:

“that where a person’s mental health contributes to the commission of an offence in a material way the prisoner’s moral culpability may be reduced.”

In this particular matter there is no clear evidence or suggestion that I can divine of the mental health of the prisoner directly contributing to the commission of the offence. However his Honour went on to point out that:

“the existence of a relevant mental condition may have the consequence that an offender is not an appropriate vehicle for the full weight of general deterrence”,

citing particularly the well-known decision of Gleeson CJ in R vEngert (1995) 84 A Crim R 67.

40. It is accepted by the Crown in its written submissions that lesser weight may be given to general deterrence in the context of the proven mental disabilities of the prisoner. The extent to which one lessens the weight to be given to general deterrence is of course always a matter of degree.

41. Further Justice McClellan pointed out that a custodial sentence may weigh more heavily on such a person as I have described. I believe that is the case here and that is directly established in the psychiatric evidence, particularly the evidence concerning the circumstances of the prisoner’s PTSD. It should be said in passing the evidence of the physical health of the prisoner reveals that his circumstances of custody, particularly in the modern climate, will weigh more heavily upon him.

42. Of course the mental condition of the prisoner does not eliminate the significance of specific deterrence and one has to consider his mental condition as it has existed for a number of years in the context of his persistent offending. As I said before, by reference to the purposes of sentencing, there is the issue of weight to be given to specific deterrence.

43. I do not believe, however, that the prisoner’s mental condition presents him as a danger to the community in the manner that was so discussed, for example, by Gleeson CJ in Engert. That is also the subject of commentary by CJ Spigelman in the decision of R v Israil [2002] NSWCCA 255, cited by Justice McClellan in the list of authorities from which he developed his principles. His Honour went on to say that the relevant condition for these particular matters to be taken into account need not be a severe condition. I am satisfied on the evidence that the prisoner’s PTSD particularly is a substantial and severe condition.

44. In sentencing the prisoner I am required to take into account, as I do, some matters particularly identified by the Crown relating to the use of a weapon which I have discussed putting it in proper context. To the extent that the use of a weapon is an aggravating factor, I bear in mind there are degrees of aggravation and this not as serious an aggravation as it would have been had the weapon been carried on the person of the prisoner before the altercation with the victim.

45. I have had regard to the character of the injury to the victim. It is not of a character in my view within the range of injuries that can be caused in the course of reckless wounding that requires the conclusion as an additional aggravating factor that the relative injury suffered by the victim was substantial.

46. With regard to mitigating factors that arise under s 21A(3) which I have touched upon in the assessment of the objective circumstances is that the offence was not part of planned criminal activity. I cannot conclude ultimately that the prisoner was “provoked” by the victim, but it is part of the factual matrix arising under s 21A(1) of the Act, that this injury was sustained in the course of a mutual fight between the two offenders.

47. Obviously the criminal history does not permit a favourable finding under the mitigating factors. I cannot find the prisoner was a person of good character, I do not find that the prisoner is unlikely to re-offend or has good prospects of rehabilitation. There is some evidence, however, of remorse both at the time of the injury offering assistant to the victim, although he did ask him then to leave the premises. But as I said he did so in the circumstances where the character of the injury although it may have been apparent to him would not have been fully appreciated.

48. He has pleaded guilty for which he receives a discrete discount but that plea of guilty in the circumstances reflects an acknowledgement by the prisoner of his responsibility for his actions and the injury suffered by the victim. The plea of guilty of itself is a mitigating factor. For that he receives a discrete discount of 25% to represent the utilitarian benefit of the plea of guilty.

49. I concluded that there were special circumstances. Putting aside the COVID-19 issue as it lurked around us as citizens and also around the disposition of this matter, in my view notwithstanding the opportunities provided to the prisoner in the past, the prisoner’s combination of medical and physical problems and challenges requires professional assistance for an extended period in the community to assist him to avoid further offending. It has not been successful in the past and I note that the parole period imposed in the Local Court in 2017, expired only a number of days before the commission of this offence. That having been said, the fact that a person has had a finding of special circumstances before, the fact that a person has committed offences on parole, if such be the case, or has committed offences whilst subject to conditional liberty in the past, of itself does not disqualify a person from a finding under s 44 that there are special circumstances.

50. It seems to me that the psychiatrist has identified professional steps that might be taken to assist the prisoner. But again, I recognise as for many with this prisoner’s background, particularly with drug dependency issues that the choice to avoid offending, the choice to avoid the use of drugs that may contribute to offending, will ultimately lie with the prisoner no matter how much professional assistance that person receives whilst in the community.

51. With regard to the issue of the relevance of the current crisis in relation to COVID-19 and particularly in the context of events that are occurring within Corrective Services and the extent to which steps can be taken to prevent particular prisoners becoming infected, the evidence is not complete either in this case or generally. The addressing of these issues by courts is a relatively recent matter. Like all matters relating to the potential health threats to prisoners or a particular prisoner, the principles that have been laid down before by superior courts obviously will have salience.

52. There is a recent decision of the Victorian Court of Appeal of Brown, also known as Davis v R, [2020] VSCA 60. It was decided on 23 March in which JJ Priest and Weinberg at [48], acknowledged that there was not adequate material concerning the impact of the virus upon the Corrective Services system in Victoria, given that the situation is rapidly evolving. Their Honours were hesitant to express a general statement of principle regarding about how that Court and others should deal with the crisis as it reflects upon relevant sentencing principles already existing. However their Honours did accept that the situation is causing additional stress and concern for prisoners and their families as it is for every member of the community. The extent to which that matter may be taken into account if at all will be a matter to be resolved on the particular facts of any individual case.

53. Coming back to this particular matter there is direct evidence from the prisoner of his health circumstances, of the immediate effect upon him of recent illness, the isolation of him which may continue for some period of time, and of course I accept the opinion of the psychiatrist given my own general knowledge of matters concerning the coronavirus that he falls within a category of persons who either in the community or in Corrections may be of high risk of severe consequences should infection be contracted. That is as far as I can take it beyond the other observations I made about the facts of the matter.

54. As I said, every case will need to be decided on its facts, the fact that an offender is in custody may reveal a risk of infection, but in the absence of particular evidence in a particular case it would be difficult to reach a decided view as to the specific risk that is presented to a particular prisoner.

55. As I earlier mentioned, my observation of what happened immediately after I dealt with the matter this morning when two prisoners were placed together in the one small room, reflects a certain lack of confidence in the Corrective Services authorities to safely police social distancing. Then again, the two young men being co‑accused may well be sharing the same cell.

56. In determining this matter I have taken into account my understanding of the case both from the evidence and the submissions that were before the Court. The learned Crown Prosecutor was not that far apart from the learned counsel for the accused in terms of the assessment of the objective seriousness of the offending and a number of matters arising out of submissions were the subject of discussion by me, or between counsel in the course of their respective submissions being made.

57. In relation to the circumstances of the prisoner in the present time in the context of the coronavirus situation, the Crown acknowledged from the evidence some specific issues that are particular to this prisoner that are required to be taken into account. There was an acceptance of the analysis of the psychiatrist, given the material that the psychiatrist acted upon. This is not one of those cases as we often see where a prisoner is presented with a report diagnosing conditions that have not previously been treated by Justice Health when the person has been in custody, and that is acknowledged by the learned Crown Prosecutor.

58. One is required in the scheme of things to keep one’s feet on the ground. The assessment of the objective seriousness of the offending and the required penalty to be imposed requires consideration being given to the yardstick provided by the maximum penalty and the range of conduct contemplated within the relevant section that creates the offence, that is s 35(4) Crimes Act 1900.

59. The submissions made by learned counsel for the prisoner in relation to the objective facts and the subjective circumstances have been taken into account in the determination of the facts as I have found them.

60. The matter that was specifically raised by learned counsel for the prisoner is that I should fix a non-parole period that would permit the prisoner’s release to parole immediately. There are a couple of issues that relate to that. Personally I do not think that that is a practical matter. The prisoner is a person previously on parole. He is a person who will need professional assistance to adjust to community living, as I have earlier indicated, hence a relevant factor to the determination of “special circumstances”. However, in the current environment I am not sure that permitting immediate consideration of the prisoner’s release to the community can be practically effected. I believe there is a need for some plans to be made for the release of the prisoner to ensure that there are appropriate mechanisms for supervision in place on his return to the community. I bear in mind in that regard, that even if we contemplate immediate release of someone to the community, the prisoner will be returning to a community very different from the one in which he lived when he went into custody. Thus, the opportunity to attend upon Community Corrections officers, to meet appointments and the like are not the same as they may have been even two or three weeks ago and there will be some planning required in that regard.

61. I am mindful of the fact that in the context of the medical evidence, the evidence of the prisoner and the submissions made by both parties, there are risks for the prisoner to continue being in custody. But I am also required to give proper weight in that regard to the principles that I have referred to, relating to the relevance of the existing conditions of the prisoner to the circumstances of custody and also the other matters that arise in determining the fixing of minimum terms and head sentences, both as suggested by the Crown by reference to particular authority and also contained within the submissions of learned counsel for the prisoner.

62. The penalty I impose, particularly in the context of consideration of the non-parole period, reflects giving some weight to that and thus leading to some reduction to what might otherwise be an appropriate minimum term having regard to all the relevant factors to be taken into account in fixing a non-parole period.

63. To that extent therefore the prisoner is to remain in custody from today for another 16 days. I appreciate the hardships of his custody in more recent times being isolated. With the hope of release to parole in 16 days to my mind the prisoner will have some incentive to concentrate on such steps as he believes he needs to take for his protection. I appreciate of course the protection of the prisoner from contracting a disease does not fall solely within his responsibility, it is a matter too for correctional authorities and I would hope that the best endeavours are being undertaken by correctional authorities to protect the interests of people in custody. Because this operates not only for the benefit of the people in custody, but operates for the benefit of people outside of custody who come in contact with persons that have served terms of imprisonment.

64. One other aspect of the matter that I bear in mind is of that the current restrictions upon movement will no doubt have impacts upon the capacity of people within custody to receive visits and the like. But, as I said, this is a matter that affects the prisoner only in more recent times, if it has affected him at all, and will only persist if he is released to parole at the end of the non-parole period for another 16 days. It will not be of significant hardship of itself as might be for someone who can expect a minimum term far greater than the one that I will now fix for the prisoner.

65. Thus, hopefully in the course of this matter, having addressed particular issues raised by the parties in the absence or the benefit of a transcript of the earlier proceedings today, I propose to make the orders.

66. Mr Awad in relation to the offence to which you pleaded guilty you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of one year three months, commencing on 19 January 2019 and expiring on 18 April 2020. I fix the balance of sentence of one year three months expiring on 18 July 2021. You will be eligible for release to parole on 18 April 2020. Until about 20 months ago I had the power to direct that you be released to parole on 18 April; that has now been removed from the Judges of this Court. Once we had power under ss 50 and 51 of the Crimes (Sentencing Procedure) Act 1999, to direct and offender sentenced to a term of imprisonment less than three years to be released to parole at the expiry of the non-parole period.

The total sentence is two years six months commencing on 19 January 2019. The non-parole period is one year three months expiring on 18 April 2020.

67. You will be eligible to release to parole on 18 April. That leaves you, on my calculation from today, 16 days. I trust that your health situation will not be worsened by that further period of custody.

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Decision last updated: 17 November 2020