R v Benjamin James Murphy

[2018] NSWDC 203

District Court

New South Wales

Medium Neutral Citation:	R v Benjamin James Murphy [2018] NSWDC 203
Hearing dates:	30 January 2018, 27 April 2018 and 30 April 2018
Date of orders:	08 June 2018
Decision date:	08 June 2018
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	1 The Offender is convicted. 2 The Offender is sentenced to 7 years imprisonment from 4 May 2016 to 3 May 2023. 3 The Offender is to serve a non-parole period of 4 years and 9 months to date from 4 May 2016 and to expire on 3 February 2021. Thereafter, the Offender is to serve an additional term of 2 years 3 months to date from 4 February 2021 and to expire on 3 May 2023. 4 The Offender’s earliest possible release date is 3 February 2021.
Catchwords:	CRIMINAL LAW – Offence committed whilst subject to conditional liberty – wounding or grievous bodily harm with intent   SENTENCING – Aggravating Factors – Offence was committed while the Offender was on conditional liberty in relation to an offence – offender has a record of previous convictions – remorse not established – commission of offence whilst under influence of illicit substances – plea of Guilty – utilitarian value of plea – 12.5% discount on sentence – medium risk of reoffending – prospects of rehabilitation guarded
Legislation Cited:	Crimes Act 1900 (NSW) ss 33(1)(b), 192E(1)(a) Crimes Act (Sentencing Procedure) Act 1999 (NSW) ss 12, 21A, 22, 28, 44
Cases Cited:	R v Chisari [2006] NSWCCA 19 R v Pitt [2005] NSWCCA 304 WW v R [2012] NSWCCA 165 Alkanaan v R [2017] NSWCCA 56 R v Thompson; R v Houlton [2000] 49 NSWLR 383 R v Burkowski [2009] NSWCCA 102 R v Gerald Thomas Martin [2002] NSWSC 577
Category:	Sentence
Parties:	Regina (Crown) Murphy (Offender)
Representation:	Counsel: Ms S Gul (Crown) Mr B Brassil (Offender)   Solicitors: Office of the Director of Public Prosecutions (Crown) Vanessa Jeavons & Associates Solicitors (Offender)
File Number(s):	2016/0070071
Publication restriction:	N/A

REMARKS ON SENTENCE

1. Benjamin James Murphy appeared for sentence before me on 1 charge, being cause Grievous Bodily Harm with Intent to Cause Grievous Bodily Harm contrary to s 33(1)(b) of the Crimes Act 1900. [1]

   1. Hereinafter referred to as the “1900 Act”

2. On 9 February 2017 the matter was initially listed for trial commencing on 25 September 2017. The trial dates were confirmed on 20 September 2017. On 25 September 2017 however, a plea of Guilty was entered before His Honour Judge Pickering SC. The matter was thereafter adjourned for sentence submissions on 17 November 2017. There were Orders made for preparation of reports.

3. That date was subsequently vacated and the matter first came before me in Parramatta on 30 January 2017. On the latter occasion, I was informed that a report from Justice Health had not yet been obtained. To facilitate this the matter was adjourned for sentence to 27 April 2018. On 19 April 2018, Dr Gerald Chew Consultant Psychiatrist from Justice Health informed the court that the Offender declined to consent to participate in an interview because he was he informed he had “a private psychiatric report.”

4. In these circumstances, the matter proceeded with submissions on the part of the Crown heard on 27 April 2018 and submissions on behalf of the Defence heard on 30 April 2018. The matter was thereafter adjourned for sentence to this day.

Facts

5. The Agreed Facts were that on Friday, 26 February 2016, the Offender commenced work at the Tasman Tank Warehousing Company. He had been working with that business for 2 months. The Offender and the victim had not met prior to the Offender commencing employment. [2]

   2. Exhibit A at tab 2, p. 1

6. Both the victim and the Offender were working on Tuesday, 1 March 2016. Prior to the victim arriving at work, the Offender asked a co-worker whether the victim was working that day, and stated that the victim had been a “fuck-wit” to him on the previous Friday. [3]

   3. Exhibit A at tab 2, p. 1

7. The victim was asked by the supervisor to move a pallet. He went to move the pallet and the Offender became angry with him. The Offender went to walk past him and said “what, do you want to have a go?” The victim told him to keep walking. The Offender ran towards the victim who got off the forklift he had been driving. The Offender attempted to hit the victim in the face. Witnesses employed at the company observed an argument and some shoving between the Offender and the victim. From his pants, the Offender produced a knife and stabbed the victim in the stomach area.

8. A photograph of the knife used can be found in Exhibit A at tab 4. One witness heard the Offender say “I will stab you now cunt” in an argument about half an hour prior to the stabbing. The stabbing was witnessed by two co-workers. [4]

   4. Exhibit A at tab 2, p. 1

9. After the stabbing, the victim sat on the floor of the warehouse. Emergency services were called. One of the two witnesses, Jay Court then grabbed a metal bar and chased the Offender out of the factory. Mr Court asked the Offender “what did you stab him with?” The Offender did not respond and went out to his car. At his car, he rolled a cigarette and was observed by some witnesses to be “calm.”

10. The Offender returned to the factory and said he needed his lunch bag. The witness who had earlier chased him asked him where he put the knife. The Offender said “I didn’t have a knife.”

11. Witnesses then approached the Offender’s car and saw a knife with a black handle behind the driver’s side front wheel. A witness said to the Offender “you stabbed him with the knife that’s under your car there” and the Offender responded that that knife had been there all morning. The warehouse supervisor took the knife and later gave it to police. The knife was subsequently examined by a Scene-of-Crime Officer. The handle of the knife was wrapped in black tape. A tape lift was taken of the tape and no DNA profile was obtained. The black tape was removed from the handle and a tape lift was taken of the handle of the knife. A DNA profile consistent with the profile of the Offender was found on the handle. Blood was detected on the tip of the knife. A DNA profile consistent with the victim was found on that part of the knife. [5]

    5. Exhibit A at tab 2, pp. 2-3.

12. On 4 March 2016, the Offender attended Mount Druitt police station as requested. He was arrested and cautioned. The Offender participated in an interview with police on 4 March 2016. He said that prior to the stabbing, the victim had threatened his daughter and sister with sexual assault, that the victim produced a knife, that the victim punched him and that he had wrestled the knife from the victim and stabbed him in self-defence. He said that someone had placed the knife under his car to incriminate him. He said that on the day in question, he was under the influence of methylamphetamines and that he had been using the drug for approximately a year and a half. He said that he had an episode of paranoia, became delusional and “ice-raged angry” under the effects of methlyamphetamines. [6]

    6. Exhibit A at tab 2, p. 2.

13. The victim arrived at Westmead Hospital Emergency Department by ambulance. Officers observed the stab wound to be 2-3 cm wide and 4-5cm deep. Photographs of the injury are attached and incorporated as part of Exhibit B.

14. According to the Agreed Facts the stabbing resulted in a penetrating injury to the abdomen which was deep, breaking through the lining of the abdominal cavity and injuring critical structures. The victim was taken to the operating theatre for a six hour emergency keyhole exploratory surgery. During the surgery, large amounts of blood was seen in the abdominal space and a laceration in the right side of the liver was seen which was actively bleeding. The operation then required a large vertical cut to the victim’s abdomen to repair the laceration to the liver.

15. The Agreed Facts record that approximately 600-1000 millilitres of blood and blood clots were removed from the abdominal space. Packs were placed around the liver to control the internal haemorrhage. The liver laceration was the only injury and the only source of bleeding. The bleeding was controlled with a combination of sutures and Surgiflo - a special material to mitigate and help stop the bleeding. The abdominal space was closed and a large drain was left in near the liver to drain the fluid. [7]

    7. Exhibit A at tab 2, p. 3

16. The Agreed Facts record significant force was used to cause the injury to the victim and that the injury was life-threatening. The victim was taken to the High Dependence Unit following the surgery. He was transferred to a hospital ward on 4 March 2016 before being discharged from hospital on 5 March 2016. [8]

    8. Exhibit A at tab 2, p. 3

Victim Impact Statement

17. The victim, provided a victim impact statement, marked Exhibit B, attaching photographs of his injuries and sutures. He states that the actions of the Offender completely impacted on and changed his life and he could not “begin to explain the hurt and haunt the attack has had on him, with numerous counselling and psychologists’ appointments to relive the moment over and over.” He states that he suffers from anxiety, cannot sleep and has become hypervigilant. He finds it difficult to allow people around him in secluded places and is not the hardworking person he once was. He spent days hospitalised, endured surgery and nearly lost his life. He referred to the complications of care, the financial burden on his family, the stress of not being able to work and struggle to get assistance. He also made mention of the presence of a scar estimated at 10cm in length on his body. [9]

    9. Exhibit B, p. 1

18. The victim stated that he suffered pain whilst hospitalised and after, which was unbearable and that at time he wished that his life was over and the scars were a constant reminder to him of what happened. He stated that he has been taught to forgive but never to forget, life goes on, all make mistakes and he accepts that whether the Offender was remorseful or not. [10]

    10. Exhibit B, pp. 1-2

19. The victim expressed hope that the Offender has learnt, since his days in gaol, the impact his actions, the pain and suffering that he has caused to an innocent life and that he is remorseful for his actions. The victim states that he cannot change what the Offender did and nobody can do that, and he has tried to find ways to cope and stay strong for his children.

20. That statement together with a number of photographs of the victim in hospital and post recovery is a powerful reminder to this Court of the impact the offending has had on the victim. I take it into account to the extent that the law allows pursuant to s 28 of the Crimes (Sentencing Procedure) Act 1999. [11] No submission was made by the Crown in terms of s 21A(2)(g) of the 1999 Act.

    11. Hereinafter referred to as the “1999 Act”

Assessment of Objective Gravity

21. In assessing the objective gravity of the offence, the Crown submits that it falls within the mid-range of objective seriousness for the following reasons:-

1. The Offender went to his workplace armed with a knife;

2. The knife was capable if used of causing significant damage;

3. There is some evidence of planning – in the half hour prior to the stabbing, the Offender was heard by a witness threatening to stab the victim;

4. The Offender stabbed the victim in an unprovoked attack to the stomach area causing lacerations to his liver. Description of the medical evidence combined with the photographs tendered [12] showed that the wound was significant and it required lengthy emergency surgery and was life threatening; and,

5. The Offender had agreed to facts that significant force was used to carry out the injury.

   12. Exhibit A at tab 4

22. I accept the salient features of the offending are as described by the Crown.

23. To the extent that a weapon was used, this is an aggravating factor to be taken into account in sentence pursuant to the provisions of s 21A(2)(b) of the 1999 Act; a matter acknowledged by the Defence. [13]

    13. R v Chisari [2006] NSWCCA 19 at [31]

24. The Defence argued that the offending was not the subject of long-term planning and I accept that this was so. Although some planning was involved the Crown did not contend that the offence was aggravated by reason of s 21A(2)(n) of the 1999 Act. The Defence did not dispute that the offending fell within the mid-range of objective seriousness and I am satisfied that the offence falls within the mid-range of objective seriousness.

Aggravating Factor on Sentence

25. The Offender was subject to a bond pursuant to s 12 of the 1999 Act at the time of the commission of this offence. The bond was imposed on 3 December 2015 for 6 months.

26. The facts relating to the offence, the subject of the bond have been tendered [14] together with a transcript of the Magistrate’s remarks on sentence. [15]

    14. Exhibit A at tab 10

    15. Exhibit A at tab 11

27. The relevant offence occurred on 17 June 2015 and involves stealing a speargun to the value of $109.00. The bond was revoked on 17 March 2016 following the Offender being charged on 4 January 2016 for using a credit card to obtain goods by deception contrary to s 192E(1)(a) of the Crimes Act 1900. A plea to that matter was entered on 27 January 2016 and consequently when the bond was revoked on 17 March 2016, the sentence of 6 months was backdated to 27 January 2016. At that stage, the Offender had been arrested in relation to the matter for which he is to be sentenced and remained in custody from 4 March 2016 to date.

28. The fact that the index offence was committed on conditional liberty is an aggravating factor to be taken into account in determining the appropriate sentence pursuant to s 21A(2)(j) of the 1999 Act.

SUBJECTIVE CASE

Background

29. The Defence tendered a report of Emma Hubner, Psychologist dated 12 December 2017. [16] Whilst the Crown did not object to the tender of this report, both parties submitted as to the use to be made of its contents.

    16. Exhibit 1

30. The Offender was born on 21 December 1992 and is currently 25 years old. He is the youngest of 2 children born of his parents union and his older sister is aged 28. The Offender is recorded as having informed Ms Hubner that his parents had an interrupted relationship and that he has a maternal half-brother aged 26 born during the period that they separated. Shortly after the separation, the Offender informed Ms Hubner that he was kidnapped by his father who kept him before police were able to locate him. [17] Thereafter, he had no further contact until they re-connected via social media when he was 21. The Offender described meeting his father once. Thereafter, he is recorded stating that “the circumstances” prevented the development of their relationship. [18]

    17. Exhibit 1 at [2]-[3]

    18. Exhibit 1 at [8]

31. The Offender advised that his mother went on to become involved in other violent relationships and he witnessed her being assaulted on more than one occasion. He described feeling protective during these times and recalled an instance when he was 6 years old in which he “stabbed” his mother’s partner with a fork in an attempt to intervene. When he was 12 years old, he reported that his sister “had ran away” to live with their grandparents. Within a short time, his half-brother also left home after an argument with their mother and he asserted that his mother was concerned that he would do the same, so she let him do whatever he wanted and he took advantage of it.

32. Ms Hubner records that there was involvement by Family and Community Services in the Offender’s early teens after he “attacked” his mother when she intervened between him and a couple of her associates. The Offender is recorded as stating that he attacked his mother’s friend with a baseball bat. He discussed spending time with his brother before ending up on the street at the age of 16 and 17 and advised that he was homeless and met other antisocial associates who encouraged his early offending. [19]

    19. Exhibit 1 at [4]-[6]

33. The Offender is reported further to Ms Huber as having had a motorbike accident when he was 17 years old involving a penetrating wound to the left thigh and other injuries. The Offender also reported suffering Goodpasture’s Syndrome (a rare but serious autoimmune disease that attacks the lung and the kidneys) and can be life threatening as a result of acute pulmonary and respiratory failure. He was said to have associated anemia and vitamin B12 deficiency. At the time of the assessment, he had spent some time in Long-Bay hospital as a result of the medical condition.

34. Also at 17 years of age, the Offender described moving to Tasmania with his mother when she married. There, he experienced relationship problems and a failed apprenticeship. At 18, he returned to NSW where he lived with a person who he described as having sexually assaulted him. The Offender then moved and found himself without stable accommodation, spending nights with his grandparents and others with friends. During this time, he stated that his substance abuse rapidly escalated.

35. The Offender described a long-term relationship with a similar aged peer, however, this was marred by his drug-use and violent behaviour and he continued to spend his late teens and early twenties using drugs with antisocial associates.

Education and Employment

36. The Offender was educated to the equivalent of Year 9. Mr Hubner records him as a slow learning who was placed in special-classes at school and notes that there was a failed attempt at the School Certificate in year 10 and an incomplete carpentry apprenticeship in Tasmania. [20]

    20. Exhibit 1 at [10]-[11]

37. So far as work is concerned, the Offender was reported as working for 18 months in his late teens via a labour hire company, labouring and warehousing. Furthermore at the time of the offence, he was employed as a Forklift driver for the Tasman Tank Co. in Glendenning.

Substance Abuse

38. According to the pre-sentence report, the Offender primarily led a transient lifestyle until he was able to secure his own accommodation in 2012. He noted that his most significant relationship of approximately 7 years ended in March 2016. The Offender is recorded as having told Danny Velebit, community corrections officer that he attributed his leaving school to his drug-use, learning difficulties and associated anti-social peer network. He noted that his employment had also been adversely affected by drug-addiction. [21]

    21. Exhibit A at tab 14

39. The Offender reported that his drug-use commenced at 15 years, with Cannabis every few days and then increasing to daily use by the age of 16 years. He commenced alcohol-use at the age of 16, claiming that he would often drink to excess on weekends, however ceased problematic alcohol use at the age of 17. The Offender stated that at the age of 21, he used heroin at a few months prior to the use of methlyamphetamines. The Offender told Ms Hubner that he ceased heroin and benzodiazepines, after a year but continued to use amphetamines into his early twenties. [22]

    22. Exhibit 1 at [18]

40. The pre-sentence report records that the Offender appears to have experienced episodes of auditory hallucinations and paranoid delusions resulting from methylamphetamine use. The Offender admitted that Methlyamphetamines remain problematic and until his incarceration in 2016, he was under the influence of that drug during the commission of the offences. However Ms Hubner notes that there was no report of “the voices” directing his behaviour or of him offending due to delusional beliefs. [23]

    23. Exhibit 1 at [52]

41. To the extent that drugs and alcohol had a role at the time the offences were committed, this is not a matter that can be taken into account pursuant to s 21A(5AA) of the 1999 Act.

Moral Culpability

42. Ms Hubner noted that when the Offender was 19 years of age, he was assessed using the Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV) by psychologist, Peter Champion. [24] Mr Champion concluded that the Offender had “significant measures of intellectual limitations in many key areas of cognitive functioning though his scores were above the level which would allow for a diagnosis of mild developmental disability, as per DSM criteria.

    24. Exhibit 2

42. Further tests carried out by Ms Hubner found the Offender to be below-average range overall with a score equal to a percentile rank of 14, meaning that he performed better than 14 percent of the general population. Ms Hubner noted that these results were not supportive of severe cognitive impairment or intellectual disability as defined by DSM-5. [25]

    25. Exhibit 1 at [39]

43. In order to assess for the presence of personal pathology that may have contributed to his offending, the Millon Clinical Multiaxial Inventory –III (MCMI-III) was administered orally and clarification of items was provided on request. This was described as a psychometric personality test that describes entrenched characteristics of behaviour as well as any current reactive mood states or behaviours that may be occurring in response to recent and contemporary life events and circumstances.

44. Ms Hubner noted that the Offender’s profile showed 3 elevations on severe personality pathology scales, Paranoid, Schizotypal and Borderline. She noted that this combination of personality pathology was suggestive of an individual who is suffering severe personality disorientation and is extremely uncommon in the general population. [26] Ms Hubner concluded:-

“[45] Antisocial personality traits are often indicative of impulsive acting-out of antisocial feelings. The actions of those with these traits are often hasty and short-sighted, and they generally ignore the consequences of their actions even to the extent of disregarding the safety of themselves and others. They can be interpersonally irresponsible in that they will violate the personal rights of others. Frequent expressions of callous competitiveness are justified by pointing out the exploitative nature of others, or otherwise conceptuali[s]ing the world as functioning according to the "law of the jungle". Because of these attitudes, they are mistrustful, suspicious, guarded and reserved. They might also be intimidating, spiteful and aggressive.

[46] The combination of schizoid and avoidant traits is suggestive of an individual who desires social involvement but who is unskilled at interpersonal relationships, and fears rejection and humiliation. A corresponding elevation of the passive-aggressive scale indicates conflictual feelings and possible resentment towards the few interpersonal relationships they possess. This centres around a wish that someone will nurture and guide them contrasted with fears of rejections; resulting in frequent moodiness and anxiety.” [27]

26. Exhibit 1 at [43]

27. Exhibit 1 at [45]-[46] (citations omitted)

46. Ms Hubner stated that the Offender’s profile contained elevated scores on the drug dependence and alcohol dependence sub-scale on the section of the test that measures reactive behaviours. She observed that the history that the Offender provided of exposure to multi-deleterious factors during childhood (poor parental attachment, exposure to violence and residential and educational instability) is considered to have left him vulnerable to the development of personality pathology later in life, and to the associated problems of emotional dysregulation, substance abuse and criminal behaviour. She observed that the Offender has experience poor emotional and behavioural control since childhood; evidence by his episodes of intense emotional distress and violent acting out prior to the age of 15. She noted that the Offender attempted to cope with this by using alcohol and drugs with anti-social peers, which exposed him to negative social influences.

47. The Offender is also noted to have developed ingrained anti-social attitudes, which ultimately perpetuated his drug-use and criminal tendencies.

48. So far as the offence is concerned, Ms Hubner opined:-

“[51] On testing, Mr Murphy verbal abilities were found to be in the Average range, however his non-verbal skills were found to be on the cusp between the Borderline Impaired and Below Average ranges. This suggests difficulties with analysing novel problems, identifying patterns and relationships that underpin these problems, and extrapolating on these using logic. Mr Murphy’s overall cognitive functioning was found to be within the Below Average range; which is not supportive of severe cognitive impairment or intellectual disability as defined by the DSM 5. Nonetheless, there is an association between low intelligence and criminal behaviour/delinquency which is stronger for repeat offending and violent crime.

[52] It appears that Mr Murphy was suffering from symptoms of Amphetamine Dependence (specifically, methamphetamines) DSM 5 Code 304.40 at the time of the index offence. Although; there is indication of episodes of drug induced psychosis in the past, it was not obvious from Mr Murphy’s reports that these types of symptoms caused him to offend. There was no report of “voices” directing his behaviour, or of him offending because of delusional beliefs. However, it is possible that his already limited reasoning skills were further impaired by his chronic methamphetamines use.”

[53] It is also my opinion, taking into account his personality attributes identified on the MCMI-III, that Mr Murphy’s involvement in the index offence was an impulsive means of acting-out his antisocial feelings. His actions appear to have been hasty, short-sighted, and it seems that he largely ignored the potential consequences of his actions.” [28]

28. Exhibit 1 at [51]-[53]

49. The Offender’s Counsel sought to employ the conclusions of Ms Hubner to contend that general deterrence was less of a consideration in sentence, in light of the decision of R v Pitt.[29] As I understood the submission, this was so as the Offender’s moral culpability was said to be reduced.

    29. [2005] NSWCCA 304

50. R v Pitt was a case in which there was evidence to suggest that there had been frontal lobe damage demonstrated on a CT scan following frontal lobe atrophy which can affect judgment and may be related to the development of psychotic symptoms. Hall J held that this was a case where there was evidence that established that the mental disorder was causally related to the commission of the malicious wounding and armed robbery offences. [30] Hall J stated:-

“[35] The central issue arising from ground one is whether the sentencing judge failed to assess the diminution that should have been applied to the sentence having regard to the effect of the applicant’s mental condition on her ability to appreciate the gravity of her actions and her impaired volition. The subset to this submission is that general deterrence was not a factor that ought to have been accorded the weight given to it by the sentencing judge.”[31]

30. [2005] NSWCCA 304 at [41]

31. [2005] NSWCCA 304 at [35]

51. His Honour ultimately concluded that he did not consider that variation in the statutory ratio under s 44 of the 1999 Act, provided sufficient allowance of the applicant’s reduced culpability due her mental condition as disclosed by the medical evidence such that intervention was warranted. [32]

    32. [2005] NSWCCA 304 at [57]

52. Grove J held the view that intervention was provoked by the requirement to consider the collateral possibility that the appellant’s knowledge of the actions was in anyway impaired or reduced by mental disorder. According to Grove J, the issue was not whether the appellant acted without any knowledge or with a full understanding, but whether her appreciation was diminished. [33]

    33. [2005] NSWCCA 304 at [3]

53. A number of observations are to be made in this regard in the context of the instant case.

54. Firstly, in this case, the evidence presented is that of a psychologist. The Offender declined to participate in a psychiatric assessment notwithstanding that an Order to this end having been made and proceedings being adjourned on 6 February 2018 by myself to this end. The limitations of psychologists’ reports and psychological testing have been referred to in previous decisions by the Court of Criminal Appeal. [34]

    34. WW v R [2012] NSWCCA 165 at [58]-[59] per Hoeben JA (with whom Johnson and Button JJ agreed)

55. In my view, it was open to Ms Huber to test the Offender for indications that at the time of testing he was suffering from a personality pathology as she has sought to do. She can describe the characteristics of the personality attributes identified on MCMI-III. However, I do not accept that as a psychologist, she can express an opinion as to whether and to what extent that condition affect the Offender at the time of the offence. [35]

    35. WW v R [2012] NSWCCA 165 at [60]

56. Secondly, Ms Huber’s conclusion that taking into account the Offender’s personality attributes his involvement was an impulsive means of acting-out his anti-social feelings (appearing hasty and short-sighted) was not based on nor accords with the agreed facts. The facts on which Ms Huber’ opinion was based was that the Offender described having been in a verbal altercation with a colleague that escalated to violence. He stated that “I knew that he would start something” and “he threatened to break my nose, so he kind of antagonised me.” When asked why he was carrying a knife at the time, he said “I always have it on me, being fried on ice, I thought people were out to get me.” Given the opportunity to discuss his current feelings regarding the offence, Ms Hubner records that the Offender told her “I should have told the boss what was happening, but I wasn’t in the right state of mind.” [36]

    36. Exhibit 1 at [24]

57. That account is to be contrasted with the agreed facts that identify the source of the Offender’s grievance as having arisen on 26 February 2016. The Offender asked a co-worker on 1 March 2016 whether the victim was working and that the victim had been a “fuckwit” the previous Friday. Thereafter, the victim went to move a pallet and the Offender is noted to have become angry with him and said “what do you want to have a go?” The victim told the Offender to keep walking and thereafter the victim was attacked.

58. Thirdly, to the extent the offending occurred in the context of the use of illicit substances at the time, this is not a mitigating factor by reason of s 21A(5AA) of the 1999 Act.

59. Fourthly, the evidence demonstrates by reference to the Offender’s criminal antecedents that during the period from 2012 to 2015, there was a period of stability. The pre-sentence report records that it was apparent that during this period, the Offender had stable accommodation, a supportive relationship with his partner and reasonably stable employment. Accordingly despite the Offender’s low intelligence and impaired cognitive functioning the evidence demonstrates the Offender’s capacity to live a relatively normal life despite any diminution to reason. [37]

    37. Alkanaan v R [2017] NSWCCA 56 at [109]

60. Finally Ms Huber noted that the Offender denied any history of psychiatric hospitalisation or treatment.

61. Although the evidence is limited, it may be accepted that the Offender’s childhood deprivation and exposure to violence, had associated ongoing consequences for his mental health. [38] Such are relevant matters to be considered both in determining his moral culpability for the offending and on the question of whether he was an appropriate vehicle for general deterrence. So, too however was his resort to violence needs to be acknowledged in the context of importance of the protection of the community from similar offending. [39]

    38. See also [69] below

    39. Alkanaan v R [2017] NSWCCA 56 at [111]

Plea of Guilty

62. The plea of Guilty was entered on 25 September 2017, being the first day of the trial.

63. In the circumstances, I would accept that a discount of 12.5% is appropriate pursuant to the provisions of ss 21A(3)(k) and 22 of the 1999 Act and the principle in R v Thompson and R v Houlton [40] and R v Burkowski. [41] Both parties accepted that a discount of between 10 and 15% was appropriate.

    40. [2000] 49 NSWLR 383

    41. [2009] NSWCCA 102

64. The Defence conceded that it cannot be argued that the Offender was of prior good character pursuant to s 21A(f) of the 1999 Act and that by reason of his prior criminal record, it could not be said that his sentence is to be mitigated pursuant to s 21A(3)(e) of the 1999 Act.

Remorse

65. It was asserted that it was open for the Court to find the Offender remorseful in terms of s 21A(3)(i) of the 1999 Act. The Defence drew attention to the contents of the letter signed by the Offender in which he states that he is sorry for the pain and suffering caused to the victim and his family and he hopes that they can find a way to forgive him for what he has done. He acknowledges that he has been in the grip of drugs but asserts that this does not excuse his actions but gives an idea of where his head was at the time of the offence.

66. In the pre-sentence report, the Offender is reported as having stated that he agreed with the police facts but disputed some minor aspects. He stated that he had time to think about the offence and its impact upon the victim. It was noted that he appeared to hold some insight of the consequences of this actions, although he did attribute partial blame to the victim for his aggression associated with his drug-use. This is reiterated in his account to Ms Hubner, [42] where he says that he knew that the victim would “start something” and “he threatened to break [the Offender’s] nose and thus antagonised him.

    42. Exhibit 1 at [24]

67. In the interview conducted with Police on 4 March 2016, the Offender was recorded as stating that he committed the offence because the victim had threatened his sister and daughter and the victim had produced a knife.

68. The Offender’s accounts of his actions varies. I accept Ms Hubners’ report that there was no report of voices directing the Offender’s behaviour or that his offending was because of delusional beliefs.

69. The statements made by the Offender recorded in his letter, in Exhibit 4 are unable to be tested. [43] I have noted the comments of Ms Hubner, that given the Offender’s personality characteristics, he would likely find it difficult to take responsibility for his violent behaviour and that he could initially benefit from individual counselling to address the causes of his offending. [44] Whilst I accept the Offender has expressed some regret for his actions, in the circumstances I am unable to be satisfied as to remorse within the terms of s 21A(3)(i) of the 1999 Act.

    43. R v Gerald Thomas Martin [2002] NSWSC 577 at [21]

    44. Exhibit 1 at [55]

Likelihood of Reoffending and Prospects of Rehabilitation

70. In terms of the Offender’s prospects of rehabilitation, and likelihood of reoffending, Mr Peter Champion, psychologist, stated:-

“[22] In relation to the issue of anxiety related disorders he spoke of a particular fear of sharks as a result of seeing the victim of a shark attack at a beach; and also a wariness with some dogs, this flowing from his experience of being bitten by a number of dogs. He spoke of tending to like neatness and order, and that at time this lead him to bouts of house-cleaning, though whether this reflects a tendency to obsessive-compulsive disorder is not clear. While he has experienced a range of traumas, for instance being abducted by his Father (though he was very young), seeing his mother beaten by a partner, attempting suicide, being in a MVA, being assaulted, it was not obvious that this had resulted in a clinical form of post-traumatic stress disorder (PTSD) or the like.” [45]

45. Exhibit 2 at [22]

71. Ms Hubner stated that apart from individual counselling to address the causes of offending such as anti-social attitudes and criminal tendencies, drug-use and antisocial associates, the Offender would benefit from intensive drug and alcohol treatment programs such as that provided by corrective services at John Moroney Correctional Centre. She also suggested that he would benefit from placement in the violent Offenders’ treatment program at the Long Bay Correctional Centre so as to manage difficult life events and minimise his aggressive behaviour. She states that in the months prior to, and post release, the Offender may benefit from referral to case management with connections, Salvation Army Services or through care support programs, where available. [46]

    46. Exhibit 1 at [55]-[57]

72. The Offender has no skills, serious substance dependencies which are noted to be a direct factor in his violent behaviour. Danny Velebit, Community Corrections Officer states in the Pre-sentence report that the Offender would benefit from admission into a residential rehabilitation service or regular individual AOD counselling. I accept that this would be appropriate. [47]

    47. Exhibit A at tab 14

73. I have noted that the Offender’s intention as expressed was to reside with his mother in Casino. Enquires undertaken by Community Corrections state that there is limited AOD counselling services in the town and the nearest services are in Lismore which is 25-30kms away. Nonetheless, I have noted that the Offender is receptive to treatment and dedicated to making positive changes in his life, which are protective factors against recidivism. [48]

    48. Exhibit 1 at [54]; Exhibit 4

74. I have earlier referred to the evidence of the Offender’s criminal antecedents shows that during the period from 2012 to 2015, there was a period of stability. There was also another period between the age of 19 and 22 when he is not recorded as committing offences.

75. The Offender has had a history of substance abuse issues dating since he was 15 years of age. The reported evidence of intervention was when he attended a brief detoxification program in 2010 with limited success. There is no evidence in his custodial history that he has incurred penalites for institutional misconduct since he came into custody on 27 January 2016, except for one matter of destroying/damaging property on 5 September 2016. In particular, there was no reference to any drug related matters.

76. Overall, I would accept that the Offender should be assessed as a medium risk of reoffending; and criminogenic needs being drug problems, attitude/orientation, emotional/personal. [49]

    49. Exhibit A at tab 14

77. I further accept his prospects of rehabilitation must be regarded as guarded at the present time.

Special Circumstances

78. The Crown did not wish to be heard on the question of special circumstances, although it referred to what it described as scant material before the court to make such a determination.

79. The Offender is a relatively young man. I have noted his pre-existing illnesses and accept the need for him to proximate to health services. I also note the level of his intellectual impairment will make it more difficult from him to serve time in custody.

80. Whilst he has served previous sentences of imprisonment, between 11 August 2012 and 25 January 2014, and in relation to the matters, the subject of his incarceration, since 27 January 2016, he did have a period of 3 years between 2012 and 2015 without offending. Further this seems to be the first occasion where he has breached conditional liberty. Overall, I am satisfied that by reason of his youth, health needs and the need for an extended period of parole, some allowance should be made and I make a finding of special circumstances to this end.

Commencement of the Sentence   

81. The Offender came into custody on 4 March 2016 following his arrest for the index offence.

82. The s 12 Bond he was on was called up on 17 March 2016 and was revoked to commence 27 January 2016.

83. At the time that he came into custody, the Offender was not sentenced in relation to offences of shoplifting and dishonesty, for which he had been arrested and charged with on 5 January 2016 and entered a plea on 27 January 2016. His sentence in relation to those matters was backdated to correspond with the commencement of the sentence for the now revoked s 12 Bond.

84. As such it cannot be said that the Offender’s custody from 4 March 2016 to 26 July 2016 related exclusively to him being bail refused in respect of this matter. Concurrency between the sentence for the other offending and the revocation of the Bond reflected an application of totality principles.

81. Notwithstanding this, the Crown did not oppose a further level of concurrency for the matter for which the Offender is to be sentenced to accord with totality principles. In the circumstances, I would propose to commence the sentence on 4 May 2016.

Sentence

86. Needless to say, this is a serious offence. I bear in mind that it carries a maximum penalty of 25 years imprisonment and a standard non-parole period for an offence in the mid-range of objective seriousness of 7 years imprisonment.

87. The sentence needs to provide for general and specific deterrence. Whilst his past offending does include offences of violence, no submission was advanced that the circumstances are such that the sentence for this offence requires any particular emphasis on specific deterrence.

88. It is necessary to ensure that the Offender is adequately punished for the offending and his conduct is denounced, that he is made accountable for his actions, and that the harm to the victim of the crime and to the community is acknowledged.

89. Whilst providing for the protection of the community is an important consideration the sentence must also recognise that the Offender remains a relatively young man, such that the need for rehabilitation to the extent possible cannot be overlooked.

Orders

90. The Offender is convicted.

91. But for his plea of Guilty, I would have imposed a sentence of 8 years imprisonment.

92. In light of the plea I would impose a sentence of 7 years imprisonment from 4 May 2016 to 3 May 2023.

93. The Offender is to serve a non-parole period of 4 years and 9 months from 4 May 2016 and to expire on 3 February 2021. Thereafter, the Offender is to serve an additional term of 2 years and 3 months to date from 4 February 2021 and to expire on 3 May 2023.

94. The Offender’s earliest possible release date is 4 February 2021.

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Endnotes

Decision last updated: 26 July 2018