R v Benjamin Sean McGuiness

[2020] NSWDC 496

District Court

New South Wales

Medium Neutral Citation:

R v Benjamin Sean McGuiness [2020] NSWDC 496

Hearing dates:

7 and 13 May 2020

Decision date:

26 May 2020

Jurisdiction:

Criminal

Before:

Hoy SC DCJ

Decision:

The Offender is convicted and sentenced to imprisonment. See Orders [79]–[85].

Catchwords:

CRIME — Violent offences — Aggravated robbery — With corporal violence

SENTENCING — Relevant factors on sentence — De Simoni/double counting — Special circumstances — Fernando/Bugmy principles

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Brown (aka Davis) v The Queen [2020] VSCA 60

Bugmy v The Queen (2013) 249 CLR 571

Callaghan v R [2006] NSWCCA 58

Fernando v R (1992) 76 A Crim R 58

Melvain v R [2019] NSWCCA 274

R v Despotovski [2020] NSWDC 110

R v Di Simoni (1981) 147 CLR 383

R v Elias [2013] 248 CLR 483

R v Henry (1999) 46 NSWLR 346

R v Lobsey [2012] NSWCCA 239

R v Simpson [2001] NSWCCA 239

R v Thomas [2007] NSWCCA 269

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)

Benjamin Sean McGuiness (Offender)

Representation:

Solicitors:
Ms I Kimber (Crown)
Ms S Hedberg (Offender)

Counsel:
Mr E Anderson (Offender)

File Number(s):

2019/00169981

Publication restriction:

Nil

Judgment

1. The Offender, Mr Benjamin McGuiness, is 29 years old. He appears before me today for sentence having pleaded guilty to one count of “aggravated robbery and inflict grievous bodily harm” as against s 96 of the Crimes Act 1900.

2. The circumstance of aggravation is that the Offender used corporal violence on the victim, Mr Yuanato Huo. The maximum penalty is 25 years imprisonment. There is no standard non-parole period. The maximum confirms the seriousness of the offence and is reserved for those that fall into the worst category. The punishment must fit the crime. The gravity of the offence is to be assessed by reference to its objective seriousness. Maximum penalties and standard non-parole periods where applicable are “legislative guideposts” to be considered along with other established sentencing practices both at common law and legislatively, including those matters identified in ss 3A, 21A, 22, 22A and 23 of the Crimes (Sentencing Procedure) Act 1999 (“the Act”) where applicable.

3. There should be reasonable proportionality between the sentence and circumstances of the crime and the relative importance of the objective facts and subjective features will vary in every case. Due weight must be given to the objective circumstances.

Form 1 Matters

4. The Offender also asks that I take into account three further offences under s 32 of the Act. They are three counts of “dishonestly obtain property by deception” as against s 192E(1)(a) of the Crimes Act 1900. The maximum for these offences is ten years imprisonment. Again there is no standard non-parole period. Consequently they are included in what is called a Form 1. By dealing with the matters in this way the Offender has the advantage of not facing separate punishment for each.

Submissions and Material Tendered

5. The Crown has provided a bundle within which there are Agreed Facts, relevant Court Attendance Notices, the Offender’s criminal and custodial records, material as to his recent breaches of parole together with a comprehensive Victim Impact Statement from Mr Huo dated 3 May 2020. On behalf of the Offender I received a psychiatric report from Dr Adam Martin dated 20 March 2020. Both Crown, Ms Kimber (solicitor) and Mr Anderson, counsel for the Offender have provided helpful written submissions and both have addressed me orally. The Offender also gave evidence.

Record

6. The Offender’s record does not help him. There are matters in the Children’s Court which I disregard. Since turning 18 however, he has accumulated a number of convictions for various offences, primarily of dishonesty, including charges of goods in custody, larceny, destroy or damage property, possess housebreaking implements and steal from a dwelling house.

7. As these matters accumulated he eventually received relatively short sentences of imprisonment. Notably for his first adult matters in 2011 he received a s 9 good behaviour bond with conditions as to drug rehabilitation, which regrettably was breached and resulted in a short custodial sentence.

8. In 2016 there was a supply prohibited drug charge with a series of obtain property by deception matters again on a Form 1 and for which he received 12 months imprisonment with six months non-parole. His release included conditions as to drug rehabilitation programs. Just over a year later, November 2017, there were further fraud charges and then an arson charge, all resulting in an overall aggregate sentence of 18 months imprisonment with nine months non-parole. It is that parole which he was on when he committed the present offence.

9. The Offender’s record, therefore, does not assist him. Furthermore and regrettably, past opportunities at rehabilitation were plainly unsuccessful. I do note however that there are no past offences of violence. When one looks at his custodial record it is apparent that since just before he turned 21, August 2011, he has spent nearly six of the last nine years in custody, roughly only two and a half years at liberty, that is in the community. The longest period was nine months out in 2015.

Time in Custody

10. The Offender was arrested on the present charge on 30 May 2019 and has been in custody for that matter bail refused ever since. The parties agree that time served for these matters alone dates at least from 25 November 2019 and any sentence I impose should be backdated to incorporate or include that period of time. That equates to a backdate or credit of about five months and three weeks.

11. Upon commission, arrest and charging for these offences he had his parole revoked. He has thus served three months and 23 days as balance of revoked parole. At the time of the present offence there were also apparently some pending criminal charges in the Local Court. They too were subsequently dealt with and short sentences of imprisonment were imposed. These equated to an aggregate total of four months fixed term which was also backdated and served partially concurrent with the revoked parole.

12. Whilst in custody Mr McGuiness has also accumulated quite a few internal disciplinary offences although I note that since his most recent arrest there are none. That is to his credit.

Early Plea

13. It is agreed the Offender pleaded guilty at the earliest reasonable opportunity and in accordance with s 25D(2) of the Act he is entitled to the maximum discount of 25%. This also acknowledges the utilitarian value of his plea and is pragmatically evidence of contrition and remorse. It is also a mitigating factor under s 21A(3)(k) and s 22 of the Act.

Facts

14. On the evening of Wednesday 29 May 2019 the Offender was with a Co‑offender, Mr Martin, at The Lakes Hotel, Eastlakes from about 9.30pm. Later at around 11:00pm they were walking along Middle Lane, Kingsford. The victim Mr Huo, a university student at the University of New South Wales, had left university and was walking home. He was talking on his mobile phone to his uncle in China. The Offender approached him from behind. He demanded the victim stop talking. The victim did so and turned around. The Offender was two to three metres away from him. The Offender told him not to move or do anything. Mr Huo immediately agreed, saying something like “Of course”. The Offender then started bouncing around him and demanded his wallet and phone. Mr Huo cooperated, presented his wallet and asked the Offender to just take his cash and leave his credit cards. The Offender responded by striking Mr Huo numerous times to the head and face. He fell to the ground unconscious. The Offender’s companion, Mr Martin, removed the victim’s wallet and phone. They both fled and left the victim lying there. They caught a bus to Circular Quay. They swapped clothes on the way. They then used the victim’s credit card. The Offender used the stolen China Merchant Bank credit card that night and/or into the early hours of the next morning to purchase three sets of goods at three separate retail outlets: $86.28 at 3.41am, $324.75 at 5.32am and $181 at 5.35am. These constitute the Form 1 matters.

15. He was arrested later that morning at about 9:10am. He still had the credit card. He was with a young lady. She had the victim’s phone. Fortunately, the victim Mr Huo was found by others and taken to hospital. He suffered awful injuries; multiple lacerations, subdural haematoma, a fractured skull, a fractured lower right jaw and a fractured left lateral orbital wall, that is his left eye. He was in hospital for three weeks. He had to have surgery on his jaw. This was on 11 June 2019. It was then openly reduced and repaired with what are called internal fixations, plates and screws. His left orbital wall fracture, the left eye, was reviewed and managed by the Sydney Eye Hospital. His scalp and ear lacerations were sutured, stitched and repaired by hospital Emergency personnel and plastic surgery teams. His skull fracture and related subdural haematoma, that is bruising, was managed non-operatively by neurosurgical teams.

16. I have also been provided with a comprehensive Victim Impact Statement to which I will later refer. As to the Co-offender Mr Martin, I am told he was charged and dealt with in the Local Court having pleaded guilty to one count of conceal serious indictable offence, that is the present aggravated robbery and five counts of dishonestly obtain property by deception, apparently also derived from the use of stolen credit cards. As to the former count, he received a sentence of 15 months imprisonment with a non-parole period of ten months. The credit card offences were dealt with via s 10A, i.e. conviction with no further penalty. Whilst I note the role played by the Co-offender as deposed in the Agreed Facts, I am advised by the parties that there is no issue as to parity to be considered.

17. I now turn to the seriousness of this offence. In doing so, it is appropriate to confirm that the Agreed Facts to which I referred a moment ago are the second version tendered and replace the first which recited the Offender having used a metal pipe to inflict the grievous bodily harm and constituting the corporal violence which of itself is pleaded as the circumstances of aggravation. These Amended Agreed Facts have been marked Exhibit D.

18. When the plea was first before me I raised concerns during submissions as to assessing the seriousness of the offending behaviour and potential infringement of the principles of R v Di Simoni (1981) 147 CLR 383. Both learned Crown and Mr Anderson for the Offender indicated I ought not pay any regard to the use of the metal pipe in the commission of the offence; see also s 21A(4) of the Act. Simply put, to do otherwise exposes the Offender to a sentence for a more serious offence than that to which he has pleaded guilty.

19. I adjourned the matter. Crown took further instructions and has provided supplementary submissions acknowledging this approach and attached the Amended Agreed Facts which have been tendered by consent and to which I earlier referred in these Remarks. As indicated, I propose to sentence this Offender based on the Amended Agreed Facts now marked Exhibit D.

20. At this juncture and in light of my expressed concerns, it is apposite to acknowledge that which was stated in R v Simpson [2001] NSWCCA 239 at [17]:

“The prosecution has the onus of ensuring that the facts and evidence placed before the court both support and are appropriate to the offence to which the accused pleaded guilty”.

21. The substantive offence is clearly very serious. It was an unprovoked attack, the Offender repeatedly striking the victim to the head and face, the wallet and mobile phone taken and the victim abandoned, left unconscious on the ground. The victim was alone at night heading home from his studies. A young man who, as with all of us, is entitled to be able to walk the streets at night without fear of threat, violence or robbery. Upon the encounter, the victim surrendered to the demand, merely asking to retain his credit cards and was then brutally attacked in the way that he was. A sudden, gratuitous and sustained violent attack. The injuries were serious, multiple fractures to the head and hospitalisation for three weeks.

22. I am not informed of any ongoing disabilities or permanent consequences, no doubt due to good luck and chance. That being so, however, it falls to the Offender’s favour. Whilst the offence appears opportunistic with limited planning, there is also a sense of stalking and targeting an individual late at night and on his own.

23. In submissions I have been helpfully reminded of the characteristics of the guideline judgment R v Henry (1999) 46 NSWLR 346. Albeit referable to an offence of armed robbery it is also relevant to offences such as the present, see R v Thomas [2007] NSWCCA 269. In Henry the NSWCCA identified a number of common characteristics consequent to which the guideline range of sentences are four to five years. That head sentence was nominated, noting it related to a young Offender and with a discount of only 10% for a late plea.

24. Upon analysis the present facts have some overlap with Henry, although can be distinguished from most of the characteristics. These include firstly and, with respect, the present Offender is not young and has a criminal history albeit no matters of a similar nature. Furthermore and again unlike Henry the offence was not confined to a threat or limited actual violence. It constituted a violent and aggressive attack with numerous blows to the victim’s head and face. I also entirely disregard any reference to the use or presentation of a weapon, as this too is contrary to the Agreed Facts and basis for sentence.

25. Whilst there were certain vulnerabilities attaching to the victim alone at night, walking home from his studies and attacked on the street, he does not, to my mind, fit within one of the suggested classes of “vulnerable” persons. The plea of guilty was not late. Indeed, it was acknowledged as being given at the earliest reasonable opportunity. Additionally, I have no further information as to whether this was against the background of a strong prosecution case or otherwise.

26. The parallels with the guideline characteristics seem to be that the offence is one of limited planning and only a relatively small amount of money and/or items were taken. No specific or nominated amount of cash has been suggested or specified but the mobile phone and wallet including credit cards were taken.

27. The Court in Henry also acknowledged these characteristics do not represent the full range of relevant factors and of themselves contain inherent variability. I accept also in considering this guideline that it has been described as being not necessarily prescriptive and throughout the sentencing exercise I retain a broad sentencing discretion.

28. The learned solicitor for the Crown submits the matter falls above the mid-range of seriousness although not at the highest level. Mr Anderson for the Offender circumspectly agrees, noting his submission that the offence is one of significant objective gravity and to the extent that Henry is apposite a head sentence exceeding that stated in Henry may well be appropriate.

29. I think the matter is very serious and falls above the mid-range. The violence was excessive, repeated and brutal. The victim had acquiesced, that is cooperated, no doubt in fear, but to no avail. The Offender had another person with him. He chose to strike the victim about his head and face with such ferocity so as to result in most serious injuries and hospitalisation for three weeks. It was merciless, unprovoked and ferocious and despite compelling subjective features to which I will shortly refer, considerations of punishment, denunciation, accountability and recognition of harm done to the victim requires stern punishment.

Section 21A of the Act

30. I have considered both aggravating and mitigating factors. As to aggravators, no factor that is an element or otherwise an inherent characteristic is to be included.

31. As to matters aggravating, it is submitted by the Crown and not disputed that the Offender has a record of previous convictions, s 21A(2)(d), and committed this offence whilst on conditional liberty, s 21A(2)(j), noting that he was on parole at the time. He had been released to parole on 20 December 2018, just three months prior. His parole was for similar counts to those now constituting the Form 1 matters.

32. As to vulnerability I make no further finding other than, as I previously stated, a general constituent in my assessment of seriousness of the offence.

33. As to mitigating factors, limited submissions are made. I accept the Offender’s plea of guilty. I am also prepared to accept in this Offender’s favour that his remorse is genuine and that he accepts responsibility for his actions and acknowledges the injuries suffered by the victim. He has, perhaps ineloquently, stated this in evidence. This is a finding I barely come to, having regard to, at one stage, his retort suggesting that the victim must have done something for him to then strike him the way he did. Simply put, I give him the benefit of perhaps naivety and/or misunderstanding. I thus make the finding as to remorse on balance in his favour.

34. As to unlikelihood of re-offending and/or good prospects of rehabilitation, no positive submission has been made on his behalf. Rightly so. I do, however, more generally acknowledge that there are glimmers of both having been demonstrated, particularly from his evidence to me. He is to be commended at least for his present commitment and proposing to embark on such a path in the future. All of this is presently untested. However, the intention is a good start.

Evidence from the Offender

35. Mr McGuiness gave sworn evidence before me. He adopted the contents and accuracy of the psychiatric report. He confirmed his background, familial and school information together with a description of his circumstances at the time of the offence and his reasons for it. He spoke poignantly as to his upbringing. He spent his first five years in the care of his mum’s father, “Pop”, because his parents were unable to care for him. This is the same man with whom he was more recently living and caring for at the time of these offences, some 30 years later. It is a part of the Offender’s plea that he now realises how much his Pop needs him to care for him and look after him.

36. The Offender’s parents were apparently troubled with drugs, alcohol and committed various abuses, physical and emotional. He also has an older brother and two older sisters. He told me he has a very close relationship with one of the sisters, Sarah. He was eventually reunited with his mum and dad after turning five although sadly this all fell over again when he was about 13. He was then again essentially left on his own, this time living with his older brother. He also spoke briefly, understandably, of being sexually abused by his father.

37. Despite all this, he went through primary school at Waterloo and he then obtained his School Certificate in year 10, doing his high school firstly at St Marys Cathedral School and then transferring and concluding at Tempe High. He spoke with pride, appropriately so, at having obtained his School Certificate. He started some TAFE courses, however did not finish them. He has in the past worked in both demolition and construction.

38. As to drugs he said he started out when he was about 13 or 14, firstly with marijuana then escalating through ecstasy, speed and at 17 onto ice. He told me that at one stage he thought things would turn around. Ironically, perhaps sadly, he was also involved in a motor vehicle accident and received a payout of $10,000. Unfortunately this did not turn him around or resolve his problems and he started sliding downhill again. He apparently reverted more heavily into the drugs in about 2010. It became even worse when his uncle passed away. He told me that the passing of his uncle hit him particularly hard because he was one of the closest adults that he now realises he ever had. Added to this he also now reflects on the passing of his mum only three years ago, indeed when last before me the anniversary of her passing and her birthday.

35. As to his recent criminal history he says that he constantly has problems upon release from custody. He told me that despite all good resolve upon starting out, once released he feels insecure and lacking support or family and then struggles with things on his own. He told me that he almost always then defaults into using drugs, re-establishing contacts with perhaps disingenuous friends and thereafter committing crime. He told me in evidence that he now realises he has wasted the last ten years of his life. He tells me that this time in custody he has avoided illicit substances and feels that this is the first time he has truly weaned himself off drugs. I must say, his presentation both previously and today suggests that change. He probably feels and looks the best he ever has in his adult life.

36. He attributes this primarily to the recent COVID-19 lockdown whereby visits to gaols have been restricted and hence, positively, no drugs then being available in custody. He even gave me an example of rejecting some bupe in the last couple of weeks. He says he has taken advantage of these changed circumstances to desist, that is quit and wean himself off drugs. He asked me to accept this, that he is genuine and has proper, newfound resolve. He tells me that he now thinks more clearly, my words, not his, has greater focus and goals and aims for the future. These again are fine ideals and aspirations.

37. As to his offending behaviour, he cannot explain why he would have done such a thing other than being under the influence of ice. He says to me that it is not what he does. In support, he reminded me that he has no matters of violence or robbery on his record. He apologised to the victim and our community for his actions. I think he does actually appreciate how he could have inflicted even worse injuries upon this young man with ongoing consequences, having regard to the ferocity of what he did. He acknowledged several times how awful his behaviour was and particularly so after the victim volunteered to hand over that which was demanded.

38. He did, albeit obliquely and maybe naively, suggest there might have been some sort of excuse in that encounter, perhaps that the victim resisted in some way. I suspect this was offered to me to explain the excessiveness of his actions, although quickly realising perhaps the limited benefit attaching to such a claim he repeated his sorrow and apology for his offending behaviour and again acknowledged that it was all his fault and that he only had himself to blame.

39. He understood when I raised it with him how the victim must have felt that night. He understood if one of his relatives had been so challenged, how awful it must have been. He tells me that for the future he wants to re‑establish himself away from drugs and, my words, be a proactive member of the community. He tells me he now has that resolve and is prepared to go into any rehabilitation programs available both in custody and upon release. As I say, he cannot explain why he committed such a horrid act and says he will never do it again. His parting words to me in evidence were that I will never see him again.

Psychiatric Report

44. I have a report from Dr Adam Martin, Forensic Psychiatrist dated 20 March 2020. He interviewed the Offender via AVL. He confirms much of the Offender’s background and particularly notes his difficult upbringing. He confirms the Offender was primarily brought up by his mother who was involved in drugs and incarcerated during his childhood and that he also had an apparently alcoholic, violent and sexually abusive father. Dr Martin also advises that the Offender showed no signs of psychomotor disturbance nor psychotic phenomena and demonstrated some insight into his drug problem, expressing remorse and disavowing his violence. He confirmed the Offender has had some difficulty, apparently owing money to other inmates for drugs in gaol. He also confirmed his future pro-social plans to “settle down”, find a job and have a family.

45. He advised of a past history which included Attention Deficit Hyperactivity Disorder, schizophrenia, depression and drug-induced psychosis and confirmed that he had been admitted to the Concord Mental Health Unit some time in 2015–2016. He also reported one possible suicide attempt involving a motor vehicle sometime in early 2019.

46. He reported having used methylamphetamine and drinking heavily since age 12 and more recently immersing himself in opiates, heroin, buprenorphine and suboxone. One past effort at rehabilitation in 2011 at “The Glen” failed. However, the Offender confirmed with Dr Martin that he is now prepared to resume any custody-based or post-custody rehabilitation as recommended. As to physical health, he reported having hepatitis C as well as some complications from being seriously assaulted in the past including having been stabbed in 2013.

47. As to the present offences, the Offender reported having been drug-affected and not slept for two to three weeks and apparently spurred on by a recent break-up. He said he had paranoid thoughts about the victim following him and arguing about handing over the phone, which caused him to strike the victim and then of course using the credit card to buy goods for drugs.

48. The psychiatrist opines that the Offender has a substance use disorder. He says his symptoms are not consistent with schizophrenia but may reflect occasional drug-induced psychosis. He further diagnoses the Offender with probable anti-social personality disorder owing to his childhood and/or developmental experiences. Dr Martin recognises that further drug use remains a clear vulnerability, however he notes the Offender does have what appears to be genuinely goal-oriented direction.

49. I note as an aside that the matters referred to as childhood and/or developmental experiences are those relied upon in separate submissions concerning Fernando/Bugmy principles. Dr Martin also reminds the Court of ongoing difficulties in managing inmates with mental health issues in a custodial environment, however did not consider imprisonment would weigh more heavily on this Offender relative to others. Overall, he opined that the Offender does not have any enduring psychotic condition and recommends drug and alcohol intervention be a priority both in custody and out of custody. He expresses what he describes as “therapeutic optimism” and again emphasises assertive drug and alcohol rehabilitation and post-release residential rehabilitation. I propose to embrace those recommendations in the Orders that I make.

50. Overall, I accept the Offender’s remorse and contrition for both the offence and to the victim and that it is genuine. This was relayed personally and within the report from Dr Martin.

51. A submission is made that the Offender’s drug addiction and related mental health issues have combined and contributed to him committing the offence so as to fund his drug addiction, as he stated to the psychiatrist and as stated in evidence. The relevance of drug addiction, in particular not being an excuse but a choice, was also addressed in Henry, see Wood CJ at CL, ([236] and [273(a)]). I accept, however, that this was a part of the Offender’s overall motivation, particularly against the background of no similar offences in the past and the overarching need he has for his ongoing endeavours at rehabilitation.

52. It seems to me the principal submission on behalf of the Offender is acknowledgement of what is often described as Fernando/Bugmy principles, both generally and as a constituent of a finding of special circumstances. This is reference, of course, to Fernando v R (1992) 76 A Crim R 58 and Bugmy v The Queen (2013) 249 CLR 571. It is submitted I take into account the disadvantages to this Offender in his development against the background of what is oft described as dysfunctional childhood and upbringing. Reliance is placed on the psychiatrist’s view that the Offender’s anti-social history and related personality disorder most likely stem from his chaotic developmental and childhood history. This in turn impacts on his decision-making skills and when challenged prompts relapses into drug abuse and subsequent anti‑social behaviour.

53. Reliance is also placed on the evidence from the Offender and that disclosed to Dr Martin, particularly as to his parents with their substance abuse issues, violence between themselves and upon him and the instances of sexual abuse committed upon him as a boy. Coupled with these factors, there also appear to me to be significant periods of abandonment by his parents and interacting mental health admissions and/or issues. Overall, it is submitted that these features in combination give added weight to reducing the Offender’s moral culpability and thus diminish the role of general deterrence when considering all other sentencing factors.

54. I propose to take these factors into account and make allowance for such dysfunctionality over and against the Crown’s contrary submissions. I do also, however, acknowledge there is a strong need to protect our community.

Risk of Institutionalisation

55. No particular submission was initially made as to the Offender being at risk of institutionalisation. Reference was made indirectly by the Offender himself in evidence. He explained that when released from custody, he generally could not survive for very long because he found it difficult to re‑assimilate, find accommodation and settle into a routine and when stressed, he would then fall back into his old habits.

56. When one looks at his more recent record this has some truth or clarity, at least as to his custodial history. It seems that since turning 21, noting that he is now 29, he has been in custody for six of the last eight years. Whilst not a factor established by mere mathematical analysis, there does appear to be a recidivist nature to his conduct. When I consider this Offender having been incarcerated multiple times for increasing periods over past years, there is a developing trend and argument that he is, or is at risk of, becoming institutionalised. His re‑offending has a certain element of self-destruction about it and is corroborated to a degree by Dr Martin where the Offender there says he knew he would be caught for the offences but did not care. Added to this, of course, is his apparent pride in having stayed out of gaol for at least six months at that time.

57. Overall and whilst the facts and circumstances speak for themselves, it is the Offender’s adult life and behaviour that has brought about its own sad consequences. Regrettably there is little left in the criminal justice arsenal other than ongoing custodial sentences. That said the risk, even in the face of entrenched and serious recidivism and in this case in combination with other factors, may well justify a finding of special circumstances.

58. On behalf of the Offender it is properly, if not realistically, conceded that he faces a lengthy custodial sentence, albeit modified in both length and ratio due to the various subjective factors raised. It was submitted that the matter, by way of term, falls greater than that nominated in Henry. On behalf of the Crown it is submitted the Offender is disentitled to leniency having regard to his past criminal history and that this offence demonstrates a significant escalation in criminal activity and violence. No concession as to special circumstances has been made nor any finding of causal relationship between any mental condition and/or social deprivation and the offending behaviour. It is also submitted that the prospects of rehabilitation are at best minimal if not non‑existent.

Victim Impact Statement

59. I turn now to the Victim Impact Statement. I have received what I consider to be a comprehensive and poignant Victim Impact Statement from Mr Huo. It is dated 3 May 2020. He there recounts a compelling account of the incident and consequences. He provides texture to the Offender’s criminal actions so as to afford a greater understanding of the hurt and consequences that flowed from the violence imposed upon him that night. He describes with clarity the events and his hopes and aspirations, being a doctoral student in chemistry at the University of New South Wales and excited to attend the Faculty Ball two days after the incident. A chance to see fellow students, friends and no doubt teachers, celebrating his academic success. It was not to be. He explains that he was walking to his apartment after studying that night when the attack occurred. He immediately thanks those who found and rescued him, Emergency Services who took him to hospital and the doctors and medical staff who, to his mind, saved his life. He explained he was left on the ground in a pool of blood and upon awakening in Emergency twelve hours later, could not speak or move. His life in hospital was in slow motion; three days before he could get out of bed, five days before he could shower and two weeks before he could walk, scarring on his skull, he lost 20 kilograms in three weeks, unable to eat solid food for three months post-jaw surgery, almost until the end of 2019.

60. There were also academic setbacks. He was planning to study for a PhD, a pinnacle of tertiary studies. This opportunity was lost. He beats himself up for walking home the back way against the advice of his family and friends. He blames himself and I pause for a moment to say he should not. He did nothing to invite the crime that was committed upon him. To his credit, he again thanks all HHhospital and Emergency staff and the support from his family and friends, particularly, he says, from those here in Australia. He expresses positives arising from this incident. He now has more confidence and is hopefully able to face future unexpected challenges. He also again unselfishly expresses hope that no one else should face the traumas that he has.

61. One need only pause for a moment to acknowledge the grace of his response. Not one word of blame or retribution, just a calm, low-key and understated account of the physical and emotional consequences that he suffered. This statement provides insight into the magnitude and impact of this offence upon the victim. I take it into account but make it very clear I have done so not to aggravate the Offender’s culpability or indeed the sentence to which he is justly exposed but to mark the impact of this appalling behaviour to which the victim was subject. Presentation of statements such as this with its calm, unemotional reflection is a compelling reminder of what follows for victims of offences such as the present and the strength of character and dignity that attaches to so many in our community, particularly in such difficult and challenging circumstances.

Statistics

62. I have considered statistics as to matters such as the present, general profiles and those most appropriate to this Offender, both pre and post-sentencing reforms of 24 September 2018. Prior to the sentencing reforms and using a profile best suited to the Offender: one offence, Form 1 matter, priors of a different type, guilty plea and aged between 26 and 30, there are no recorded cases. Take away the profile factors reveals 76 cases of which 69, 91%, received fulltime custody. Aggregate sentences range from two years 11 months to 14 years and the related non-parole periods 12 months to 10 years and three months. Sentences for this as the principal offence ranged from two and a half years to ten years with corresponding non-parole periods of 12 months to six years.

63. Post-sentencing reforms and again applying the suggested profile, no recorded cases. Absent the profile factors there are only four cases, all of which received custodial sentences. Only one was an aggregate sentence, seven years and nine months with a non-parole period of four years and nine months. Sentences for this as the principal offence range from three years to eight years and six months with non-parole periods of one year and eight months to five years and nine months.

64. Whilst I have not been referred to any specific comparative cases, two arise through an analysis of the statistics. In R v Lobsey [2012] NSWCCA 239 the Appellant was there sentenced to seven years with a non-parole period of five years for a similar offence which on its facts involved a bag snatch from a 73 year old woman on New Year’s Day in 2009. The snatch resulted in her falling to the ground and the neck of her left femur was fractured. Her bag with $400 cash, keycards, cheque book, keys and diary were taken. The Appellant pleaded guilty at the earliest reasonable opportunity. He gave evidence and his contrition was accepted as genuine. He apologised for the injuries and said that he did not intend to cause that harm. He said he took the money to support his drug addiction. He had a past criminal history including matters of violence. A part of the complaint on appeal was that the sentencing Judge described the Applicant’s actions as constituting “a vicious cowardly attack”. The Applicant described it as a “forceful bag snatch”. This was described as being overly charitable and failed to give proper recognition to the objective seriousness of the offending, which left an innocent and elderly victim with significant injuries. The Court there considered the offending called for significant specific deterrence together with general deterrence and the need to protect the community. The appeal was dismissed.

65. In Melvain v R [2019] NSWCCA 274 the Court dismissed an appeal based on manifest excessiveness for a sentence of eight and a half years with a non-parole period of six years. This too was a like offence to the present. The victim was aged 76 and walking from his house to buy the newspaper. He had his wallet and pension money, $400 cash. The Appellant approached and punched him to the side of the face. He fell against a fence and was repeatedly punched to the face. The Appellant took his money. The victim suffered severe facial injuries, required operative treatment and spent nine days in hospital followed by physiotherapy and assistance to walk.

66. At first instance, the objective seriousness was described as being of an extremely high order. The Appellant had pleaded guilty, albeit late and received a discount of 15%. It was there accepted the victim was vulnerable, the violence significant and the sum taken significant to the victim. The Appellant at the time was on conditional liberty, had a prior record and received the benefit of Bugmy factors in mitigation. The NSWCCA determined no error and the appeal was dismissed.

67. These are only two examples of past cases and the facts and circumstances of offending behaviour and related Offenders will always be varied. Even so, cases decided by intermediate Courts of Appeal provide useful guidance as do statistics, which of themselves assist in establishing a range of sentences but do not constitute the outer bounds of permissible discretion. They, statistics, are more a yardstick upon which to examine the proposed sentence and are of less value where the offences are not frequently prosecuted or where there is a small number making up the set. They have also been referred to as a “blunt instrument” and/or an “opaque tool”. Overall, to my mind the statistics and cases are of some limited assistance and the present case must be considered in light of its own unique circumstances.

68. Section 3A of the Act sets out the purposes for which a Court may impose a sentence on an Offender. They are:

(a) to ensure that the Offender is adequately punished for the offence,

(b) to prevent crime by deterring the Offender and other persons from committing similar offences,

(c) to protect the community from the Offender,

(d) to promote the rehabilitation of the Offender,

(e) to make the Offender accountable for his or her actions,

(f) to denounce the conduct of the Offender,

(g) to recognise the harm done to the victim of the crime and the community.

69. Importantly, these include both general and specific deterrence. The factors to which I earlier referred, however, do afford some leniency and adjustment with respect to both the sentence and more particularly a finding of special circumstances to which I will return in a moment.

70. Section 5 of the Act also requires me to be satisfied that imprisonment is the last resort and having considered all possible alternatives, no penalty other than imprisonment is appropriate. For the reasons expressed, I have come to the view that no penalty other than imprisonment is appropriate. No submission to the contrary has been put by the Offender.

71. Factors bearing on the determination of sentences often pull in very different directions and in balancing all those factors there is a process of what is oft called “instinctive synthesis”. I have to balance those many different and conflicting features, see R v Elias [2013] 248 CLR 483.

Parity

72. I am informed that the other person involved in the present offence, Mr Martin, was charged with various deception offences arising from use of the stolen credit card and conceal serious indictable offence, that is the present offence and was dealt with summarily and sentenced to 15 months imprisonment with a non-parole period of ten months. The deception charges were dealt with by way of s 10A with no further penalty.

73. I was advised by the parties that there is no element of joint criminal enterprise nor any further issues of parity to be considered with respect to the present Offender and/or Mr Martin. Consistent with the parties’ submissions and acquiescence, I take this aspect no further.

Revocation of Parole

74. On behalf of the Offender it is submitted I backdate the current sentence to not just accommodate time served solely for the present offence but also into some of the revoked parole and other sentences of imprisonment. I have already referred to this revocation and subsequent sentences. Essentially, revoked parole of nearly four months and overlapping additional sentences of four months. The latter sentences commenced on 26 July 2019 and expired on 25 November 2019. Those sentences related to offences of shoplifting and goods in custody and apparently occurred on 1 and 10 May respectively. This was within a month of the present offence and occurred during the Offender’s parole.

75. Having regard to the separate nature of the offences, I think there should be some accumulation, although noting these various matters all occurred in the same month I propose to backdate the present sentence to within part of the more recent sentences and revoked parole. That is a discretion which rests with sentencing judges, see Callaghan v R [2006] NSWCCA 58. The sentence is to be backdated to commence 21 August 2019.

COVID-19 Pandemic

76. A further aspect requiring consideration is the current COVID-19 pandemic and in particular consequences to those in and facing custody. I accept that prisoners are not able to practice that which is presently required in our general community, that is social distancing. They are entirely dependent on the custodial authorities. Furthermore, there is the added stress of reduced if not zero visits from family and/or friends. These factors would no doubt cause additional stress and concern for prisoners and their families, as it is otherwise to all in the community. These are relevant factors to be taken into account in the overall sentencing exercise. See Brown (aka Davis) v The Queen [2020] VSCA 60 at [48] and whilst not binding, the very helpful decision of Haesler SC DCJ of this Court in R v Despotovski [2020] NSWDC 110, 15 April 2020.

Special Circumstances

77. It is submitted I consider a finding of special circumstances. In particular, reliance is placed on totality/accumulation having regard to time served in conjunction with the time served for revocation of parole and the other short sentences imposed for other lesser offences together with risk of institutionalisation, the Offender’s relative youth and recognition of what are often described as Fernando/Bugmy principles. It seems to me and with great respect to the Crown, that these factors in combination, coupled with potential rehabilitation, are appropriate and satisfy me that an adjustment ought be made to assist this Offender to rehabilitate and hopefully eventually re‑assimilate back into the community.

78. Quite obviously, there is a strong public interest in the rehabilitation of Offenders, even at this late stage and it seems to me that this may well be this man’s last chance. It will, however, be a matter entirely for him both in custody and more particularly upon his release as to whether he, Mr McGuiness, has the wherewithal, skills and commitment to seek help, to say no to temptation, distraction, disingenuous friends, illicit drugs and what might often seem to be the easy way out. He has told me he intends to keep his head down the right path and has thus far taken some very small and tentative steps. He should not be discouraged. However, I confirm again it is a matter for Mr McGuiness, the Offender alone, to continue down that path. As I say, I propose to make some Orders hopefully to facilitate and promote that commitment, both in custody and upon his release.

79. In all the circumstances, Mr McGuiness, you are convicted. You are sentenced to six years imprisonment commencing 21 August 2019 and expiring 20 August 2025. I set a non-parole period of three years and nine months imprisonment commencing 21 August 2019 and expiring 20 May 2023. The balance of term is two years and three months commencing 21 May 2023 and expiring 20 August 2025.

80. I find special circumstances pursuant to s 44(2) of the Act as earlier described: relative youth of Offender, risk of institutionalisation, totality and accumulation, Fernando/Bugmy and necessity for an extended period of rehabilitation and re-assimilation back into the community.

81. I confirm the Form 1 matters have been taken into account.

82. Whilst in custody, it is recommended Corrective Services Commission assist the Offender as follows:

(a)  Receive counselling and treatment including relevant medication from NSW Health, Justice Health and Forensic Mental Health Network for his mental health including conditions of substance use and anti-social personality disorder, drug-induced psychosis, possible post-traumatic stress disorder and a previous instance of self-harm.

I direct a copy of the report of Dr Adam Martin dated 20 March 2020 attach to the Offender’s custodial warrant for the assistance of Justice Health and Corrective Services.

(b)  Receive counselling and treatment as to substance and alcohol abuse and relapse prevention, anger management and impulse control, pro-social peer development and literacy based programs, Think First Program, EQUIPS Program, Smart Recovery Program, Addictions Program, Aggressions Program and/or such other programs as available.

(c)  Obtain access to educational, training, work related skills and vocational programs.

(d)  Assessment for eligibility/placement in the Compulsory Drug Treatment Program operated at the Compulsory Drug Treatment Correctional Centre, Parklea Correctional Complex and/or the Intensive Drug and Alcohol Treatment Program, (IDATP) operated at the John Morony Correctional Centre and/or if unavailable, some similar program.

(e)  As the Offender’s release to parole approaches, obtain an assessment as to his suitability for admission and participation in a residential drug and alcohol rehabilitation program. Such assessment is to be conducted shortly prior to his release to parole so as to facilitate admission into such program immediately upon release and integration into the community.

(f)  As the Offender’s release to parole approaches, obtain assistance as to appropriate residential accommodation and appropriate work/training courses. Such assessments are to be conducted shortly prior to his release to parole so as to facilitate admission into accommodation and work/training with minimal dislocation.

83. The Offender is eligible for release to parole at the expiration of the non‑parole period.

84. Parole is to be subject to the supervision and guidance of the Parole Authority and as provided for in the standard conditions under the Regulations. Upon release to parole it is recommended that the Parole Authority direct the Offender accept the supervision and guidance of Community Corrections generally and specifically as to:

(a)  Admission into a drug and alcohol residential rehabilitation program.

(b)  Identification of and access to relevant social services and welfare agencies to facilitate assimilation back into the community and workplace.

(c)  Counselling and treatment as to substance and alcohol abuse and relapse prevention, mental health issues and related ongoing treatment and medication including, if appropriate, implementation of a Mental Health Treatment Care Plan, anger management and impulse control, household, domestic and financial management skills, pro-social peer development and literacy based skills, Think First Program, EQUIPS Program, Smart Recovery Program, Addictions Program, Aggressions Program and/or such similar programs as available.

(d)  Appropriate residential accommodation.

(e)  Vocational, educational, training and/or work related skills programs and related qualifications.

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Decision last updated: 01 September 2020