R v Carroll

[2025] NSWDC 284

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Carroll [2025] NSWDC 284

Hearing dates:

23 April 2025

Date of orders:

29 April 2025

Decision date:

29 April 2025

Jurisdiction:

Criminal

Before:

R Tupman DCJ

Decision:

The offender is convicted. He is sentenced to a non-parole period of 4 years, to commence on 9 July 2023, expiring 8 July 2027, with a period of parole thereafter of 2 years, commencing 9 July 2027, expiring 8 July 2029, giving rise to an overall term of imprisonment of 6 years commencing 9 July 2023, expiring 8 July 2029.

Catchwords:

CRIME – Violent offences – Domestic violence – Substantive Offence – Wound with intend to cause grievous bodily harm – Stabbing – Injuries to victim requiring surgery – Serious weapon – 20cm knife

Form 1 Offences – Reckless wounding – Serious domestic violence offence against partner – Almost amputated finger

Contravene apprehended domestic violence restriction x 3 – 2 related to main offences and 1 later – Phone calls to victim from gaol in contravention of non-contact order

EAGP scheme negotiations criticised – contravene ADVO involving same facts and 2 main offences unnecessary – but very serious Form 1 offence of reckless wounding means no proper sentence able to be imposed for that offence

SENTENCING — Extensive criminal history – Largely break and enter type offending – History of violence against same victim – General deterrence – On conditional liberty at the time of offending

SENTENCING – Subjective considerations on sentence – Childhood sexual abuse in juvenile custody – Poor education – Disrupted employment history – Frequent incarceration – Substance abuse issues

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Category:

Sentence

Parties:

Rex (Crown)
Jason Robert Carroll (Offender)

Representation:

Ms K Reardon (Crown)
Mr A Terracini (Offender)

File Number(s):

2023/00220978

JUDGMENT

1. The offender, Jason Carroll, is before the court for sentence on one charge pursuant to s 33(1)(a) of the Crimes Act, 1900 of wounding with intent to cause grievous bodily harm. This offence carries a maximum penalty of 25 years’ imprisonment with a standard non-parole period of 7 years. Specifically, the charge is that on 9 July 2023, at Maroubra, the offender wounded Curtis McDonnell intending to cause him grievous bodily harm.

2. He asks that four additional matters be taken into account when sentencing for this offence, as are set out in the schedule to a form 1, signed by him, and on behalf of the DPP. Those offences are as follows:

3. Offence number 1, a charge of contravening an apprehended domestic violence restriction, also committed on 9 July 2023. This is contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act, 2007 and if sentenced separately, would give rise to a maximum term of imprisonment of two years.

4. Offence number 2 is a charge of recklessly wounding the named victim, Julie Spittori, on 9 July 2023 at Maroubra, being reckless as to causing her actual bodily harm. This is an offence contrary to s 35(4) of the Crimes Act, 1900. It was originally certified for sentence to the District Court, but is now to be taken into account as a form 1 offence.

5. Offence number 3 is a further charge of contravening an ADVO prohibition, also committed on 9 July 2023. Offences 1 and 3 appear to relate, respectively, to the offences against victims Curtis McConnell and Julie Spittori.

6. Offence number 4 is a further charge of contravening an ADVO, committed between 11 August 2023 and 11 October 2023.

7. All of the three breach ADVO charges were originally sent up to this court, pursuant to s 166, to be dealt with as related offences, but are now to be dealt with as form 1 offences. The matters first came before this court on 11 February 2025 when most of the documentation was tendered. It was adjourned for further psychiatric evidence to last week. There is now a psychiatric report from Dr Furst, dated 9 April 2025, in addition to the original documentation.

8. The facts before the court are by way of agreed facts. From those, I accept that the offender and Ms Spittori had been in a domestic relationship for about ten years. They lived together at an address in Maroubra. The victim of the substantive offence, Curtis McDonnell, is Ms Spittori’s adult son, who also lived with them at the relevant time. At the time of the offending, the offender was 54, Ms Spittori was 64, and Mr McDonnell was 21. The offender was subject to an apprehended domestic violence order, protecting both victims at the time of offending. This order included a condition that he not assault or threaten either of them.

9. In the fortnight leading up to the offending, the offender and victims had been arguing a lot. On 9 July 2023, in the afternoon, Mr McDonnell arrived home. No one else was there, and he went upstairs to his bedroom. The offender and Ms Spittori arrived about 20 minutes later. The offender walked upstairs and went to the door of Mr McDonnell's bedroom. They exchanged words, and the offender walked away to his own bedroom, with Mr McDonnell following him, who then stood in the doorway of the offender’s bedroom and watched him. Ms Spittori was also standing in the doorway, facing the offender, between the two men. She asked the offender to stop, not to worry about whatever it is that they were talking about, but he did not reply.

10. He walked back towards Mr McDonnell with his right hand behind his back and his left arm down by his side. He swung his right arm around, from behind his back, towards the left side of Mr McDonnell’s body. Mr McDonnell felt a sensation like an electric shock, and stepped back. He then saw that the offender was holding a 20-centimetre-long kitchen knife in his right hand, with which he had wounded Mr McDonnell. Ms Spittori shouted, “It’s a knife.” She was standing between the two men, trying to protect her son, who ran back to his room to try to escape. The offender followed him, still holding the knife. He moved towards Mr McDonnell with the knife.

11. Ms Spittori stood between the two men, facing the offender, trying to protect her son. The offender swung the knife at Mr McDonnell several times, trying to stab him again, and Ms Spittori pushed him back out of the bedroom, past the hallway stairs. At some point during this attack, the offender swung the knife and cut Ms Spittori’s finger. She called out, “My finger,” and Mr McDonnell noticed that one of her fingers was almost detached. He then noticed blood coming from his left side, and realised he had been stabbed by the offender earlier. Ms Spittori pushed the offender away, and Mr McDonnell ran down the stairs, out of the unit, with the offender following him.

12. During this process, Mr McDonnell’s dog got out of the house. He chased them down a nearby street and caught them. When he did so, he saw the offender running down the same street. The police arrived, and the offender fled the scene. When they did arrive, the police found Mr McDonnell standing in the middle of the road screaming, and holding the left side of his body, which was covered in a large amount of blood. He told police he had been stabbed. Police also found a large amount of blood on the wall in a bedroom of the offender’s unit. Mr McDonnell was taken to St Vincent’s Hospital. He was found to have three wounds which were:

1. A left upper-limb wound of four to five centimetres;

2. A left-flank wound of two and-a-half centimetres; and

3. A left posterior lateral chest wall wound of two to three centimetres.

13. All wounds had subcutaneous fat visible. A CT scan showed he had a soft tissue haematoma on the left flank, with evidence of active arterial bleeding. He underwent surgery to clean and close the stab wounds, and was discharged the following day.

14. Ms Spittori attended Sydney Hospital for treatment. She was found to have suffered a partial amputation of her right index finger and laceration to her middle finger. She underwent surgery to reattach the right index finger and repair the damage to both fingers. I can only assume that this was successful, as there is no evidence in relation to any ongoing disability or anything whatsoever in relation to either of the two victims of these offences. The wounding of Ms Spittori is the subject matter of the second form 1 offence, and, as I have said, his attack on both her and Mr McDonnell would appear to be the subject matter of the other two form 1 offences committed on 9 July, of breaching the ADVOs which were then in place.

15. Quite why these two offences need to be treated separately in any way at all, even if only as form 1 offences, is hard to understand. They are, in fact, an integral part of determining the objective criminality of the substantive offence, that at the time he was subject to an ADVO not to assault Mr McDonnell, which therefore elevates the seriousness of his offending. Equally, the fact that he was subject to an ADVO not to assault Ms Spittori also elevates the seriousness of the other form 1 offence of wounding her, which will ultimately inform an assessment of how that offence is to be taken into account in a meaningful way. But neither of them, in my view, was a necessary additional offence.

16. Each of them is, in fact, part of the overall circumstances of committing either the substantive offence or the serious form 1 offence. Leaving them to be decided, even as form 1 offences, separately, causes unnecessary extra administration and could not, in this case, make any difference whatsoever to the appropriate sentence for the only matter for substantive sentence. The fact that they have come to be considered as form 1 offences only, is at least a relatively sensible outcome in circumstances where they were initially to be sent to this court as related offences, all of which would have had to attract and be given separate sentences. This, and the fact that the other form 1 offence, a serious offence of reckless wounding involving Ms Spittori, was all part of a negotiation in the Local Court, pursuant to the provisions of the  Early Appropriate Guilty Plea (EAGP) scheme, it seems to me, is indicative of the many ways in which that scheme is no longer working as intended.

17. The offender was not arrested until 4 August 2023. He was refused bail and has been in custody ever since. On 10 July 2023, before his arrest, police issued a new ADVO for Ms Spittori’s protection, which included a condition that he not approach or contact her in any way except through a lawyer. This was served on him when he was arrested on 4 August 2023. Between 11 and 20 August 2023, whilst in custody, he made 20 phone calls to a number which was apparently registered as Ms Spittori’s number. Eleven of these calls connected, and there were conversations between them. Quite how he was permitted to make calls, by Corrective Services, to the victim of such a serious offence, in the face of an ADVO preventing any contact, in circumstances where the number was apparently registered to her, is hard to understand but, regrettably, is common in the court’s experience.

18. Then, between 29 August and 11 October 2023, he made 293 other phone calls to a number which Ms Spittori had given the police as her best contact number. These calls were also made from custody, but there is no evidence about whose name was given as the contact person connected to that number when he was permitted to call that number 293 times over a period of two months. So, in total, between 11 August and 11 October, he made 313 phone calls from custody, to Ms Spittori, in breach of the condition that he not contact her. Again, how this was allowed to continue and continue by Corrective Services is hard to understand.

19. This is the subject matter of the fourth form 1 offence. Like all form 1 offences, it must be taken into account in a meaningful way when sentencing for the only substantive matter before me, namely, the offence involving Mr McDonnell. The breach here involves the contact only. There is no evidence that any of those phone calls were attended by any threats or violence, and the evidence overall would seem to indicate that Ms Spittori took the phone calls willingly, albeit in the face of the ADVO condition protecting her.

20. They are matters that take into account, ultimately, in deciding the extent to which, if at all, taking this matter into account in a meaningful way ought increase the appropriate sentence for the substantive matter. In fact, the offender had been the subject of ongoing ADVOs protecting Ms Spittori since 2017, as a result of a number of separate incidents of domestic violence against her. The facts for each of those are tendered. All offences occurred in the same premises, in Maroubra. 

21. The first was on 7 October 2017 at about 6 in the morning, when the offender came into the victim’s bedroom and began yelling at her about her having contacted his son.  He threatened her with rape by others, and raised his clenched fist close to her while screaming at her.  As she started to yell for help, he would move back one to two metres away from her and say that he was not touching her and that he was not doing anything.  He made threats to her in the event that she reported anything to police.  He picked up mobile phones and threw them at the wall.  This incident occurred for about 40 minutes.  She contacted police.  There were criminal charges as a result, and an ADVO was put in place, protecting her.  He behaved violently and manipulatively during this incident.

22. The second incident occurred on 2 January 2018 in the same premises, where there was another argument. He told her he was leaving and was ending the relationship. During the argument, she was in her bedroom and he walked in, grabbed her by the shoulder, and bit her right earlobe, which pierced the skin and drew blood. Police attended the next day. At the time, the offender was on bail and subject to the pre-existing ADVO. One of his bail conditions was that he lived in different premises, not the address at Maroubra, but in fact, he had been living there in breach of both his bail conditions and the ADVO. There were criminal proceedings in relation to this assault and breach.

23. The third incident occurred on 26 January 2018. Police were conducting patrols and saw the offender and Ms Spittori around 1.25 in the afternoon, sitting on a fence in Maroubra. They were talking. He was arrested because he was in breach of the ADVO, specifically, a condition that he not have any contact with her. He seems to have spent a day or two in custody, bail refused, but I cannot find anything on his record to indicate any criminal outcome as a result of this breach.

24. The fourth incident occurred on 28 May 2018. A final ADVO was made on 2 May 2018, the usual conditions were attached, and there was also a condition that the offender not approach Ms Spittori for at least 12 hours after drinking alcohol or taking illicit drugs, and that he not live at the same address. On 28 May 2018, at night, police were called to the residence by a third party who said that the offender was refusing to leave and was behaving aggressively. Police attended and found him there in breach of the ADVO. He was charged again. This was the fourth time since early 2018 that he had been charged with breaching an ADVO protecting Ms Spittori.

25. The fifth incident occurred after a further ADVO was put in place on 13 June 2019, protecting Ms Spittori. One of the conditions was that he not assault or threaten her. On 5 July 2019, at about 8 in the morning, the accused and the victim were in bed at the address in Maroubra. There was an argument between them. He stood over her, pointing his finger close to her face and yelling at her. She pushed his finger from out of her face. He put both his hands onto her face and, in the words of the facts, “squished it.” His fingers were digging into her right eye socket and the side of her nose. Her eye socket and side of her nose began to bleed, and there were a number of cuts to it due to his actions.

26. She bit his fingers in self-defence. He yelled at her to stop. She eventually let go, and he grabbed a pillow and placed it over her face, applying pressure to the extent that she felt out of breath. She managed to get the pillow off her face and ran outside, yelling for help. The offender ran out of the house and ran away before police arrived, and when they apprehended him nearby, told them lies about not having assaulted the victim. The victim suffered actual bodily harm as a result of this assault, and he was charged with that and breaching the ADVO.

27. These are the historical offences of violence against the same victim by this offender, which he had committed whilst he was the subject of ongoing ADVOs. He has been sentenced for at least four of these events, and punished, and it is not my role to punish him any further in relation to these particular offences. They are before the court on this occasion to place his offending in its proper context, which I accept is the context of ongoing and escalating physical violence against his domestic partner in circumstances where he has done so, many times in the past, always in breach of conditions of ADVOs, and on occasion, in breach of a bail condition, all of which were designed to protect her. This is relevant not only to determine the seriousness of his offending, but also particularly relevant in deciding his real prospects of rehabilitation and his risk of reoffending.

28. I now turn to the issue of the objective seriousness of the substantive offence before me, and relevantly, the reckless wounding offence which is a form 1 matter. The substantive offence is clearly a serious offence in its own right, given the maximum penalty of 25 years’ imprisonment with a standard non-parole period of seven years, and the form 1 offence of reckless wounding is also serious, which, if sentenced separately, would give rise to a maximum penalty of seven years with a standard non-parole period of three years. Both of these offences fall into the category of domestic violence related offences, and the second offence, the form 1 offence, is a domestic violence offence committed by him against his intimate partner.

29. Domestic violence offences in Australia, committed largely by men against women, currently amount to something of an epidemic. They are a scourge on the community. Women die every week in Australia at the hands of their domestic partners. That, of itself, renders all domestic violence offences serious, and there must be a significant element of general deterrence factored into the appropriate penalties to take that into account. No one deserves to be assaulted by anyone in our community, less so by those who profess to love them, and with whom they live in a domestic relationship. The objective seriousness of the substantive offence, however, in this case, is informed by a number of factors in addition to those general matters, as follows:

1. Mr McDonnell, in fact, was stabbed three times, giving rise to three wounds, one of which caused arterial bleeding requiring surgery. These were serious wounds, albeit apparently not life-threatening, but nonetheless, more than one stab;

2. A serious weapon was used, namely, a 20-centimetre-long knife, to inflict the wounds, and the facts allow for an inference which I make, that the offender approached the victim with the real intention of wounding him this way, more or less concealing the knife behind his back before the stabbing occurred;

3. The wounding was, in large part, unprovoked. Whilst there had been a verbal altercation about something, the victim was standing at the offender’s doorway, talking, when the offender approached him from inside the bedroom with this knife concealed behind his back, and stabbed him;

4. It was a spontaneous attack, not planned, which is a relevant factor in determining the objective seriousness. It is submitted on behalf of the DPP that there ought be a finding that there was some planning, and a finding in particular that the offender went back to his bedroom to obtain this knife after the initial altercation. There is no evidence, however, on which I would make such a finding, particularly so because it was the victim who actually followed the offender to his room;

1. This offence is a domestic violence offence committed in a domestic situation, namely, against his partner’s adult son with whom he was residing;

2. It was committed in the victim’s home where he was entitled to feel safe; and

3. After the stabbing, after the wounds had been inflicted, when the victim was trying to escape to his own bedroom, the offender followed him and continued to swing the knife at him, during the course of which he ultimately inflicted the wound on Ms Spittori.

30. These factors overall inform the objective seriousness of the substantive offence. It is, in my view, at about the mid-range in terms of objective seriousness, possibly a little above, as a result of this combination of circumstances. But, because of the plea of guilty, the standard non-parole period of seven years does not apply strictly, but operates as a guideline to be taken into account when determining the appropriate sentence.

31. The offender’s offending is rendered more serious because he was, at the time, subject to an ADVO protecting Mr McDonnell and also Ms Spittori, and in relation to Ms Spittori, had been subject to a series of such orders since 2017. I also must, when sentencing for this substantive offence, take into account the form 1 offences to which I have referred, which, in real terms, means taking into account the serious offence of recklessly wounding Ms Spittori. That, of course, is itself a serious offence, and I must take that into account in a meaningful way which of course, means that I must assess the seriousness of that offence itself.

32. The injury suffered by Ms Spittori was extremely serious, almost severing her finger. Many of the same factors surrounding the objective seriousness of the substantive offence apply to this form 1 offence, namely, that it is a domestic violence offence and committed in her home. It was completely spontaneous, and was reckless, not intentional, but committed whilst the offender was in pursuit of the person who he had just stabbed. As I have said, he was also subject to an ADVO at the time, for her protection, which had been the case since 2017. Taking this offence into account in a meaningful way in this case means that the appropriate sentence for the substantive offence must be higher than it might otherwise be.

33. The parties here have negotiated an outcome during the course of EAGP negotiations, which means that this offence of serious domestic violence by the offender, against his partner, who he had assaulted many times in the past, can never be appropriately sentenced because it is not a separate offence. That is a byproduct of the fact that the parties, including the DPP, were involved in negotiating this outcome in the Local Court, subject to what, in my view, is incorrectly referred to as the Early Appropriate Guilty Plea scheme.

34. In those circumstances, it is not open to me and would be wrong to elevate the sentence for the substantive offence for anything like what would be the appropriate sentence for this matter if sentenced alone, but that is the outcome which the parties here have negotiated themselves, which included the DPP, and this court is bound by that negotiation. I express my own view, on the record, that it is not appropriate to deal with so serious an offence of domestic violence in this way, let alone by a person against his intimate partner. That, however, is what I am confronted with. It would be open to the court, as I understand the law, to refuse to accept the negotiated agreement and refuse to take that into account as an additional offence, but that would just delay the sentence proceedings which have already taken long enough since the date of the offence in July 2023.

35. I am conscious that, before adopting this negotiated outcome, both victims have been consulted, and the evidence of that is before the court. I repeat, however, that in my view, this is not an appropriate disposition of so serious an assault of domestic violence by a man against his intimate partner, where the injury was as serious as it was. I will, however, take that into account as requested, and I repeat that it would be wrong to deal with it as if it were a separate sentence.

36. For all offences, the substantive offence, and the form 1 offences, the offender was on a form of conditional liberty at the time, namely, two community correction orders, from July 2022 and December 2022. I will refer to those soon. There has been a decision by the court that no action be taken on the breaches of those community correction orders, which is represented by the matters before me.

37. The offender pleaded guilty to these matters at the first available opportunity in the Local Court, and is thus entitled to a 25% discount on the substantive offence from what would otherwise be the appropriate penalty.

38. I now turn to the circumstances surrounding the offender himself. He is now 56 and he has an extensive criminal history, particularly so in New South Wales. He has one older matter in 1989, in Queensland, involving possession of a drug, dealt with by way of fine. His relevant criminal history is to be found from the New South Wales criminal history tendered on this sentence. That history commences in 1988 and 1989, when he was 19 and 20, and convicted of stealing, and fined. In 1991, when he was 22, he was convicted of break, enter, and steal, and placed on a community service order. He was also convicted of stealing and making and using a false instrument, and placed on a bond.

39. In 1992, he was convicted of having custody of an offensive implement, and fined. In 1994, he was convicted of larceny and again placed on a bond. In 1995, when he was 26, he was convicted of three counts of break, enter, and steal, which had occurred in 1993, and a charge of stealing a motor vehicle, and imprisoned for 12 months. In July 1993, he also committed offences of robbery in company, break and enter, assault and armed robbery, and was sentenced in the District Court overall to five years’ imprisonment with an overall non-parole period of two years and six months, together with a further concurrent term of imprisonment of 18 months for an offence of break, enter, and steal. There are other fixed terms of imprisonment at the same time for offences in February 1995, attempted break, enter, and steal and possessing housebreaking implements.

40. In 1998, he was sentenced in the District Court to a term of imprisonment overall of six years, with a three-year non-parole period for an offence of using an offensive weapon to prevent lawful detention, and assault with intent to rob, with a number of offences taken into account as form 1 offences. His appeal to the Court of Criminal Appeal was dismissed. In December 2004, he was sentenced to an overall period of imprisonment of six years, with a non-parole period of four years and six months, for a series of offences including break, enter, and steal, and steal from dwelling house. He was released to parole on those sentences on 29 May 2007.

41. In August 2013, he was sentenced in the District Court to six years’ imprisonment with four years and six months’ non-parole period for a series of offences committed in August 2011, including two counts of robbery in company, steal from dwelling house, dishonestly obtain property by deception. There were conditions attached to his parole at that stage which indicate that he was addicted to drugs, and requiring him to undergo relevant counselling and be subject to random urinalysis. His appeal to the Court of Criminal Appeal against that sentence was dismissed. He was released to parole from this sentence on 23 February 2016.

42. He went back into custody briefly on 7 October 2017 for the first of the domestic violence offences against Ms Spittori, to which I have already referred. Despite his extensive history, he was ultimately sentenced by way of a s 9 bond for contravening the ADVO then in place, with an order that he comply strictly with any ADVO in place to protect Ms Spittori. He breached that and was called up. The bond was extended for 18 months. The second offence of domestic violence against Ms Spittori then occurred on 2 January 2018, together with the ADVO contravention. He spent a day in custody, but was ultimately sentenced to a s 9 bond, with another condition that he comply strictly with the ADVO in place to protect Ms Spittori. That bond was also called up for breach and extended for a period of 18 months in September 2018. Ultimately, in August 2019, it was again called up because of further offending and he was sentenced to 12 months imprisonment, with a six-month non-parole period, by way of re-sentence.

43. On 23 August 2019, he was sentenced in the Local Court to a term of imprisonment of 12 months, with a six-month non-parole period, for the offence of domestic violence against Ms Spittori which occurred on 5 July 2019, and the corresponding breach of the ADVO. He was in custody from 5 July 2019 until being released to parole on 3 January 2020. He has a number of other summary offences on his record, including driving and motor vehicle offences, for which he has received short periods of imprisonment. He was, at the time of the offences before me, subject to two community correction orders. One of those was for offending that occurred in mid-2022, for the offence of bringing a prohibited drug into a place of detention and also for shoplifting.

44. This was a CCO of 24 months, which commenced on 29 July 2022 and was due to conclude in July 2024, with supervision. It included a condition that he remain abstinent from alcohol and drugs. A further CCO was in place for a later offence of shoplifting, which occurred in November 2022. It was for 12 months and commenced on 7 December 2022, and also had a condition requiring abstinence from drugs and to undertake counselling, testing, and mental health counselling. Both of these CCOs, with the relevant conditions, were in place at the time he committed the offences before me, on 9 July 2023.

45. His criminality is increased because he committed these offences while subject to this form of conditional liberty and also places serious questions over his real prospects of rehabilitation, given that they were subject to conditions of abstinence, and I accept that he committed the offences before whilst under the influence of the drug known as ice. His criminal history is extensive, albeit the instances of violence, until this offending, would appear to have occurred only towards Ms Spittori, and the bulk of his offending would appear to be break and enters and similar type offending. 

46. But, he has been to prison many times. It is clear that many of the conditions imposed by the court had, at their crux, the need for him to remain free of the use of illegal drugs, and I infer from that, the connection between his offending, probably all of his offending, and his use of those drugs. The criminal record obviously disentitles him to any leniency, and it is close to becoming an aggravating factor.

47. There have been a number of documents tendered to the court on behalf of the offender, including his own letter to the court, a forensic psychological report from Mr McLean, forensic psychologist, a somewhat older, namely, 12 months older, psychiatric report from Dr Chu, not compiled for these proceedings but, nonetheless, of use to the court, and a more recent psychiatric report from Dr Furst, dated 9 April 2025.  As I have said, there is also his letter written to the court, and some certificates of courses that he has undertaken in custody.  He also gave evidence to the court on the last occasion.

48. From this combination of evidence, I accept that he was meant to be using prescribed medication for his psychiatric condition at the time of the offending, but had stopped doing so. He was self-medicating with illegal drugs, including ice, heroin, and Xanax. The forensic report from Dr McLean is of value to the court, albeit slightly lengthy and, to an extent, repetitious. I do accept, however, from the history given by the offender to Mr Mclean that he has had a poor relationship with his father as a child, and was repeatedly assaulted by him as punishment for his own poor behaviour.

49. His father has subsequently passed away, but his mother remains alive. He has a good relationship with her, and she has continued to provide support and be available for him. That, of course, assists his prospect of rehabilitation; however, her support has always been available for him, and in the past has never been sufficient to prevent his frequent criminal offending and relapse into drug use.

50. He disclosed an episode of sexual abuse, apparently as a 13-year-old, whilst in juvenile custody, and I accept that he is currently seeking financial compensation for that. I accept that this episode has had a significant impact on him, and that it is only in recent times that he has started to deal with it. He has a poor educational history, largely because of his poor behaviour in class. He was frequently suspended and ultimately dropped out of school in year 8. He has worked in various entry-level jobs, but struggled to maintain steady employment because of his drug use and repeated incarceration. He anticipates receiving some financial compensation as a result of his abuse in juvenile detention, and has a plan to buy a van and undertake handyman services in due course. If this were to come to fruition, then that would assist his prospects of rehabilitation. His employment history is significantly disrupted, as was his education. His employment history is disrupted because of his frequent incarceration.

51. The most significant part of the material before me by way of background surrounds what I accept to be his addiction to substances, which I accept began with his use of cannabis at the age of 11, which continued until he was 49, his abuse of alcohol which started at the age of 19 and continued for two years, his use and abuse of heroin which was for two years from 23 to 24, but probably was also being used at the time of this offending. He also used GHB from the age of 46 for about four years, and then, from the age of 33, he started to use methamphetamine, the drug known as ice, which I accept he was using at the time he committed the offences before me, and for a period of time after he went into custody. He has given evidence about this in court.

52. The punishment details section of his custodial record would indicate that he was using drugs in custody until at least April 2025, and I accept, perhaps a little after that. But, I accept the evidence he gave that, as at Wednesday last week, 23 April, he had been 234 days abstinent from the use of drugs. I accept that his criminal offending is largely connected to his drug use and addiction. His circle of friends, as he has admitted, was almost entirely connected with this milieu. He has had three periods only of abstinence in the past, for three months each, but he always relapsed. As I said, he continued to use drugs for a period in prison on this occasion, but I accept that he is now abstinent for about the last 240 days.

53. He had a relationship before Ms Spittori, from which he has a 34-year-old son, but he does not have a good relationship with him because of his own drug use. He has been with Ms Spittori for 14 years. In his interview with Mr McLean, he denied being violent to her, except for this offence. That is clearly not true, and causes a concern not only in relation to his lack of insight, but in particular, for his prospects of rehabilitation. He has frequently been violent towards her, as is clear from those previous instances to which I have already referred.

54. He has been diagnosed, in the past, with schizophrenia and bipolar disorder, and has been prescribed drugs for them. There is a useful report from Dr Furst, analysing all of the reports from those who have treated him. He was not using the prescribed drugs at the time of offending, but using prohibited drugs himself. As I have said, his history of violence in the community seems to be largely confined to those against Ms Spittori, but his custodial record indicates assault offences in custody, in other words, more generally in the community. He has undertaken anger management programmes in the past, and on this occasion, and his prospects of rehabilitation would be improved if he were able to take advantage of those in the future. It is of concern that he also minimised his offending to Mr McLean, saying that he only poked Mr McDonnell with the knife on one occasion. He also gave Mr McLean a different version of how Ms Spittori was injured, compared to the agreed facts. This indicates a degree of minimisation which, in my view, cannot be explained by an asserted lack of memory.

55. Whilst I accept that the offender’s long-standing drug use makes a mental health diagnosis difficult, I do accept Mr McLean’s opinion that he has underlying disordered personality traits, namely, antisocial traits. I also accept the opinion of Mr McLean and others that there is a connection between his antisocial personality traits, which themselves, would seem to pre-exist both the institutional sexual abuse and also largely his drug use, and the fact of his ice dependency, and there is a connection between that and his offending.

56. I also regrettably accept Mr McLean’s opinion that the offender may in the future be violent to both those with whom he is familiar, and also those with whom he is unfamiliar, but accept the balance of the opinion in paragraph 51 of Mr McLean’s report that it is likely he would be most violent, whether towards those with whom he is familiar or those with whom he is unfamiliar, while affected by drugs, predominantly ice. So, his ability to remain free of prohibited drugs is vital to his ongoing rehabilitation.

57. His violence risk, I accept, is more than twice as high as a typical offender, and there is a real risk that he will engage in violence in the future unless there is, in effect, intervention and case management. As I have said, however, it is almost completely connected to his use of illegal drugs. If he maintains his current state of drug abstinence on his release on parole, then I accept that his high risk of further violent offending, and therefore any risk to the community, is much lower. He will be released from custody into the community in due course. It is to be hoped that he will be provided with effective intervention and case management whilst he remains in custody, and effective supervision and treatment in the community on his ultimate release to parole, to decrease the likelihood of relapse into drug use and, therefore, effect a real protection of the community. He will need close supervision on parole for these reasons.

58. As I have said, there is a recent report from Dr Furst, psychiatrist, who has seen him and reviewed all of the documentation and, as a psychiatrist, he is in a position to make appropriate psychiatric diagnoses. I accept from the report that, in fact, the offender suffers from a psychotic disorder, substance use disorder, personality disorder, namely, borderline and antisocial traits, and epilepsy. Without referring to any of that report in detail, I accept Dr Furst’s summary, as appears on p 9 of his report, under the heading “Diagnosis.” I accept that his psychotic illness, or disorder, is likely to be caused by a combination of drug use, epilepsy, and stress, but without an exact foundation being able to be determined.

59. From the overall material, I accept that the offender had a troubled background, together with a history of sexual abuse in juvenile custody. I accept that this played a part in precipitating his unstable personality structure and maladaptive means of coping under stress, especially being an initial causative factor of his use of illicit drugs.

60. When he went into custody, the offender was prescribed and used buprenorphine and has used that, and methadone, in the past. He now refuses to use either of those drugs and has indicated in his oral evidence that he will not do so when released from custody on parole. His reasons would seem to be because he sees these as just another drug, and he sees himself now as drug-free in custody and wants to stay that way. I accept Dr Furst’s opinion that the offender’s psychotic symptoms, particularly the auditory hallucinations, would be better controlled if he were to use these opioid substitute medications, however, it is a balancing exercise, one which he believes he is able to control whilst he remains in custody, and more particularly, when he is released to parole. It does, however, cause some concern about the chances that he will relapse when he is released to parole.

30. I accept the recommendations regarding future treatment, set out by Dr Furst, on p 10 of his report. He will need input from Justice Health in relation to a prescription for antipsychotic medication, antidepressant and anticonvulsive medication whilst he remains in custody, and that will need to be monitored and kept under control when he is released to parole. I have already made the comments I have in relation to his view in relation to opioid substitute medications. He will need, I accept, psychological therapy and programmes to address his personality deficits and tendencies toward anger and aggression, and I accept that his referral to a violent offenders’ therapeutic programme would benefit his rehabilitation. He also needs drug and alcohol counselling with a focus on preventing relapse and with the aim of acquiring complete abstinence.

31. When he is released to parole, there ought to be a follow-up through a community mental health team, and a referral to local drug and alcohol services. He also requires a case manager and regular psychiatric treatment to optimise his care, reduce the risk of drug relapse and improve his prospects of rehabilitation. I accept the opinion given by all of the medical professionals in this case, that his prognosis is guarded and that his chances of recovery are relatively limited, but that they are likely to be improved if the services suggested by Dr Furst are put into place, particularly all of those designed to limit the possibility of his relapsing into drug use again. His risk of reoffending is in the moderate to high range.

32. The evidence given by the offender on this sentence is that his reason for now remaining abstinent from drugs for such a long period is because, in his words, he has “seen the light” and decided to change his life. He gives as a reason his desire to have an ongoing relationship with his young granddaughter, and to start living a normal life in the community. He has expressed a desire to resume his relationship with Ms Spittori, who has been in court, supporting him every day that these matters have been before the court. However the existing ADVO will remain in place when he is released to parole, and he will be prevented from doing so, as a result of that, in the absence of any variation being made. He appears to accept that on this occasion, albeit that he has not accepted it in the past, and he does have accommodation available to him with his mother. I accept that he has expressed remorse and contrition, but that itself must be taken with a grain of salt, given the comments that he has made to Mr McLean, which minimise his offending.

33. He has, however, undertaken courses in custody and, on the face of it, done everything towards his rehabilitation that might be required of him on this occasion. Whilst the court is guarded about his real prospects of rehabilitation and accepts the opinion of the psychiatric experts, he must be given credit for the efforts he has undertaken towards his own rehabilitation, and they must not be set at naught, because they do amount to a significant step towards the possibility, however remote, that he will remain free of drugs when he is released, which will have a significant impact on his likelihood of ever offending again.

34. I then turn to the issue of the appropriate sentence. I take into account all of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act, 1999. Promoting rehabilitation is one of those, and I take that into account. It ought not be ignored, even in the face of the findings that have been made about him and his significant history. He has voiced his intentions, and at least that can be taken at face value. A matter of significant concern, however, is the fact that he has always relapsed into drug use, and perhaps even more troubling, he has almost completely ignored any of the ADVOs put in place to protect Ms Spittori. His violence towards her is escalating and, on this occasion, extended to another person with whom he had a domestic relationship.

35. If he relapses into drug use on his release to parole, in my opinion, that violence is likely to return, and the court is in particular concerned for the welfare of Ms Spittori, who seems determined to remain with him. Ms Spittori is at risk from this offender after he is released if he relapses into drug use.

36. I do not make those comments because of any view that I have that he ought not to be released to parole at the end of his non-parole period. He ought to be released with appropriate resources. But I make those comments in order to underline the interventions and case management that need to be put into place for his benefit, to prevent him from relapsing into drug use and to protect Ms Spittori in particular, and the community in general. It is to be hoped that when he is released to parole, these proper interventions are put in place because the court does not want to see Ms Spittori become a statistic, like others have become, regrettably, on an almost weekly basis over the last several years.

37. I accept that his ongoing psychiatric condition renders him a slightly lesser vehicle for general deterrence than others, and that his moral culpability is somewhat reduced because of the deficiencies of his upbringing and, in particular, the impact on him of the sexual abuse whilst in detention. That having been said, he is now 56, and he has been given many opportunities over many years to deal with all of these issues, and I accept that he does clearly understand the issues and knows what needs to be done to deal with the problems.

38. When sentencing for the substantive offences I must take the additional reckless wounding offence into account in a meaningful way, which I do by increasing what would otherwise be the appropriate sentence. The threshold here, pursuant to s 5, is clearly crossed. Only fulltime imprisonment is appropriate and there has been no argument to the contrary in relation to either of those propositions.

39. Taking into account the form 1 offences, overall, I have determined that there should be an overall term of imprisonment of 6 years, with a non-parole period of 4 years, on the finding of special circumstances which are largely his need for a longer-than-normal period of supervision in the community to deal with his mental health issues, and prevention of drug relapse.

40. For those reasons, then, I make the following formal orders. On the substantive offence, he is convicted. He is sentenced to a non-parole period of 4 years, to commence on 9 July 2023, expiring 8 July 2027, with a period of parole thereafter of 2 years, commencing 9 July 2027, expiring 8 July 2029, giving rise to an overall term of imprisonment of 6 years commencing 9 July 2023, expiring 8 July 2029. I have taken into account four offences on a form 1 when sentencing for this matter. No ADVO is necessary, there being one already in place.

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Amendments

04 August 2025 - Amendments to formatting

05 August 2025 - Amendments to formatting

06 August 2025 - Amendment to representation field

Decision last updated: 06 August 2025