R v Benjamin

[2019] NSWDC 190

District Court

New South Wales

Medium Neutral Citation:	R v Benjamin [2019] NSWDC 190
Hearing dates:	1 April 2019
Decision date:	01 April 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Sentenced to a term of imprisonment of 3 years with a non parole period of 18 months.
Catchwords:	CRIMINAL - recklessly causing grievous bodily harm to a law enforcement officer - special circumstances
Legislation Cited:	Crimes Act 1900 (NSW), s.60A(3).
Category:	Sentence
Parties:	Regina (Crown) Jacob Awuo Benjamin (Offender)
Representation:	Mr Belcher (ODPP) Mr Hancock (Counsel)
File Number(s):	2018/161383
Publication restriction:	Nil

Judgment

1. Jacob Benjamin, you appear for sentence today in relation to one offence, that is causing grievous bodily harm to a law enforcement officer, whilst being reckless as to actual bodily harm.

2. This involves a contravention of s 60A(3) of the Crimes Act. The maximum penalty for the offence is 12 years imprisonment and there is no standard non-parole period.

3. The facts surrounding your offending are agreed and contained in a document called Agreed Facts, which you have signed. Recast by me as to style but not substance, the facts are as follows.

4. On 23 May 2018, you were serving a sentence of assault police and you were due for release to parole, in respect of that sentence, the next day. You were in the mental health screening unit at the Metropolitan Remand and Reception Centre at Silverwater.

5. At about a quarter to one in the afternoon, one of the officers who was on duty, Mr Khatil, spoke to you and, as he walked away from you, you followed him and, from behind, you delivered at least three punches to his head.

6. This caused Mr Khatil to fall to the floor, where he sustained serious injury.

7. Fortunately, two other inmates, who were working in the Mental Health Screening Unit as sweepers, came to the officer’s assistance and prevented you from inflicting any further injury to him.

8. Mr Khatil was knocked unconscious for a time but, when he recovered, he felt pain in his head especially in the area of his nose and jaw. He was taken to hospital where he was diagnosed with a fractured jaw. Four surgical plates have been placed in Mr Khatil’s jaw, which will be there for the rest of his life. Following the surgery, he was on a puree diet for six weeks and was off work for six months.

9. Mr Khatil has given me a victim impact statement, telling me, in more detail, about: how he came to this country from overseas, just as you have done; and how he and his wife and daughters have appreciated the opportunity to work and live in this country. Even now, almost a year after the incident, he is still seeing a psychologist for the psychological injury that you did to him, over and above the physical injuries that you inflicted on him.

10. In terms of the objective seriousness of this offence for an offence of its kind, it is slightly below a midrange offence.

11. It has been submitted by the Crown that the fact that he was a correctional officer is an additional aggravating factor. I do not agree - that is part of the definition of the offence.

12. You were 27 years old when you hit that officer. You are now 28.

13. You were born in Sudan. Unlike many other Sudanese born people who come before the Court, you seem not to have been adversely affected by the consequences of the civil war in that country.

14. Before you came to Australia, you had some time in Uganda, where you went to primary school. You went to high school here and, whilst in high school and at the age of 14, you started to smoke a very considerable quantity of cannabis. At age 15 you started to drink a very considerable quantity of alcohol. And in your twenties, you began using methylamphetamine.

15. When you were 17, you were charged with murder and convicted of that offence. You were held in custody for almost seven years before your conviction was quashed in the Court of Criminal Appeal.

16. Although you came to Australia with the members of your family, you have had no real contact with them for quite a long time, even though at least one of your siblings, a sister in Perth, has been trying to communicate and be in contact with you.

17. You are a socially isolated person with no work skills, no work experience and little education.

18. When you hit that officer in May 2018, you were in the grips of the mental illness known as schizophrenia. It did not surprise me when reading of that diagnosis to also read that, as a young teenager, you had smoked a very significant quantity of cannabis. The psychiatrist who examined you for the purpose of the sentencing report does not express any opinion as to why, in 2018, you were showing signs of schizophrenia. I have seen enough reports to know that schizophrenia can be organic - that is, something which is inherently within you. But, I have also seen enough psychiatric reports to know that teenagers, who consume large quantities of cannabis, are at a very real risk of developing schizophrenia. I am unable to say today whether your schizophrenia was something that you inherited from your family, or whether it is because you have consumed, as a 14 year old and afterwards, large amounts of cannabis - or a combination of both.

19. I will say that any person who suggests that cannabis is a harmless drug has absolutely no idea what she or he is talking about. This Court, and the Local Court, every day of the week see young men, like you, and young women, who have a mental health diagnosis of schizophrenia and, in their background as young teenagers, a large consumption of cannabis.

20. The fact that you were highly psychotic on 23 May 2018 means that considerations of general deterrence and denunciation are reduced and, to an extent, the consideration of specific deterrence is reduced. On the other hand, offsetting both those reductions, is an increased need to protect the community.

21. You have been treated whilst in custody for schizophrenia. It concerns me, Mr Benjamin, that you were able to tell Dr Eagle in March of this year that you thought you were now better and that you did not believe you needed medication in the future. You are wrong. One of the dangers of schizophrenia, Mr Benjamin, is this: it can never be cured. The officer whose jaw you broke, he will recover the use of his jaw. If you break your arm, it can be fixed with a cast. If you have cancer, it can be cut out and, hopefully, cured. But one of the dangers, Mr Benjamin, of schizophrenia is that it is never cured. If you stop your medication in the future (as you are thinking of doing because you think you feel better) you will have more psychotic experiences and you will re-offend. You have to understand, Mr Benjamin that you, in order to live a long life or any life, must continue, for the rest of your life, to take the medication that the doctors tell you to take. They will tell you this: when you stop the medication, the voices will come back - and what will happen next time?

22. You have expressed remorse for what you have done to the officer, now that you are in a better place in your head. But I think your prospects for rehabilitation are guarded - largely because of your attitude to the medication.

23. Although I do not have high confidence about your prospects of rehabilitation, I am concerned that you are at risk of being institutionalised; and I believe that, whatever prospects you have, would be enhanced by a longer period on parole. Therefore I accept the submission that Mr Hancock made to me this morning that I should vary the ratio of the head sentence to the non-parole period.

24. I shall backdate the start date of the sentence to 24 May 2018.

25. I intend giving you a discount of 25 per cent because of the early plea of guilty.

26. No sentence other than one of full time custody is appropriate.

27. If you had not pleaded guilty, Mr Benjamin, the term of the sentence would have been 4 years imprisonment. Because of the discount of 25 per cent, the term of imprisonment is 3 years. The non-parole period is 18 months and it dates from 24 May 2018.

28. At the expiration of that period, you will eligible for parole. Whether or not you are granted parole will be a matter for the parole authority. If they do grant you parole, the balance is 18 months. 

29. You will now go downstairs, thank you.

Decision last updated: 21 May 2019