R v Connors; R v Laurie

[2020] NSWDC 613

District Court

New South Wales

Medium Neutral Citation:

R v Connors; R v Laurie [2020] NSWDC 613

Hearing dates:

21 February 2020

Date of orders:

28 February 2020

Decision date:

28 February 2020

Jurisdiction:

Criminal

Before:

Judge Priestley SC

Decision:

See Page 16 Orders Connors

See Page 9 Orders Laurie

Catchwords:

CRIME — Violent offences — Reckless wounding in company

Legislation Cited:

Crimes Act 1900 (NSW)

Crime (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bugmy v The Queen [2013] HCA 37

Fernando v The Queen - [2017] VSCA 208

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (Crown)
Connors (Offender)
Laurie (Offender)

Representation:

Clark for the Director of Public Prosecutions
Cochrane Counsel for the Accused Persons

File Number(s):

2019/00095087
2019/00107824

Publication restriction:

Unrestricted

Judgment

1. Jerome Tyrone Connors and Gregory Lawrence Laurie each appear for sentence in respect of one charge of reckless wounding in company in contravention of section 35 (3) of the Crimes Act.

2. The maximum penalty for this offence is 10 years imprisonment. There is a standard non-parole period of four years imprisonment. There are no charges to be dealt with on a form one.

3. I will first set out the facts of the matter and assess objective seriousness. I will then turn to the subjective features of each of the offenders separately and determine sentence based on the overall circumstances of each case.

Facts

4. The facts are set out in the Crown sentence summary which in each case was marked as exhibit A. The following statement of the facts draws on the essential aspects of the agreed facts which as just noted are in evidence.

5. The offence occurred on 25 March 2019. The victim of the offence was staying at an address in Coffs Harbour which is the home of a Mr Smith and his partner. Mr Smith is a cousin of Connors, as is the victim. The people whose home it was knew Laurie but the victim did not.

6. At about 10:30 PM the victim was drinking water at the kitchen table at the home and the other occupants had gone to bed. At this time the two offenders let themselves into the home. The offenders yelled at the victim “you’re a dog”. Connors had a machete which he passed to Laurie; it had a long silver blade. Laurie walked over to the victim and swung the machete at him. The victim raised his arms defensively and was struck on the right wrist area causing him to bleed and he screamed out “no”. This woke the other occupants who came out and recognised the offenders.

7. Smith screamed words to the effect of “put the machete down” and “get out of my house”. The offenders saw Smith and his partner and appeared shocked to see them, had wide-open eyes and appeared to be affected by a drug.

8. The victim got up and went towards Smith and his partner. Laurie, still with the machete, walked towards the front door and left. Connors stayed longer and stood over the victim saying something to him and then walked past the kitchen and said to Smith’s partner “sorry sis”.

9. The victim, Smith and his partner went to Smith’s bedroom, closed the door and sat against it and the police were called from inside the bedroom. As the facts read Connors then left.

10. Whilst waiting for police the victim held his arm to stop the flow of blood. There was a hole in his right forearm which he wrapped with a tea towel. The bedroom door was marked with blood of the victim. When the police arrived he was subsequently taken to the hospital. The injury was described as a 1.5 cm laceration and was not actively bleeding by the time he was examined by ambulance offices at 11.04 PM. Later the injury was described as a laceration, not deep and with no visible tendon damage.

11. The police looked for but could not find Laurie that night but located him the next day and placed him under arrest. He denied any knowledge of the events of the night before. On 7 April the police located Connors. When Connors saw the police he ran to avoid arrest. He participated in an electronically recorded interview and when the allegation was put to him he exercised his right to silence. Connors was charged and refused bail.

Objective seriousness

12. It was submitted for the offenders and not gainsaid by the Crown that a significant factor impacting on the objective seriousness of this offence is the damage done. The offence it was said is a “result offence”. I accept that submission. At the same time the fact that the injury to the victims wrist occurred because he was defending himself cannot be ignored so that but for the action of the victim the blow of the machete may well have struck him on a more significant part of his body. The recklessness of the act is marked. The use of a weapon is a conceded matter of aggravation, which I take into account in assessing objective seriousness, but not otherwise.

13. I also consider the act more serious than it would otherwise be due to the apparent targeting of the victim. The offenders have attended this particular building, immediately accused the victim of being a dog and attacked him with a machete. Further the fact that this occurred in somebody’s home is a matter which is an aggravating feature which I consider appropriate to take into account in considering the objective seriousness of the matter provided it is not further taken into account, that is not double counted. The other inescapable feature of the matter is this is no butter knife that is being used in the offending; the implement is a machete being wielded upon another person recklessly.

14. More favourably for the offender is that the whole incident was very short lived being literally more like a matter of seconds rather than minutes and also that at the first sign of being confronted by Mr Smith they ceased their conduct.

15. Whilst the “result” of the attack assists the offender it is not something that is trivial. The victim’s arm was bleeding and the victim was in severe pain and whilst the blood had stopped by the time ambulance officers arrived the initial bleeding required a tea towel to stem the flow. I note however it was only 1 to 2 cm wide not deep and had no visible tendon damage.

16. Taking these matters into account I conclude this cannot be considered to be at the lowest level of objective seriousness but would rather express it as being below the mid range.

Other matters - Connors

17. Although Connors sought to evade the police he nevertheless pleaded guilty at the Local Court and in my view it is appropriate that the 25% discount for his guilty plea should apply.

18. At the time of the offending Connors was on two 12 months section 9 bonds which is a matter of aggravation under section 21A. As mentioned above another aggravating factor is that this offence occurred in a home but I do not take it into account here as I have already done so above.

19. Mr Connors relied on a psychological report dated 3 February 2020. It provides his personal history. Mr Connors was born on 5 April 1991 and so is now 28 years old. The report notes a criminal history which I will refer to below. Suffice to say for present purposes his adult offending is dominated by property and violence offences. Mr Connors grew up in Newcastle living with his parents and nine siblings and identifies with his aboriginal heritage. His parents were both unemployed and frequent drinkers of alcohol typically leading to physical conflict in the home. On one occasion he saw his father fracture his mother’s jaw and skull. When Mr Connors was 12 his parents separated and he remained with his siblings in the care of his mother who ceased drinking alcohol at that time. During adolescence Mr Connors drank alcohol heavily and whilst I note his juvenile offending I do not take it into account adverse to him. Whilst he has had some employment he has been largely unemployed in his adult life with his most recent employment being in September 2017. Mr Connors has two children, a 12-year-old son and a three-year-old daughter to 2 former partners. There is no contact since 2017 with the elder child; there is regular contact with the younger child, his daughter. The relationship of Mr Connors and the mother of his daughter was characterised by methamphetamine use.

20. As to substance use Mr Connors drinks heavily, and has regularly used cannabis, MDMA and sporadically used heroin when in custody as well as the methamphetamine use referred to above which was a habit of up to 1 g per day. It is of concern that Mr Connors said that at the time of the offence being considered he was using methamphetamine to remain awake on rotating shifts with his brother-in-law to protect his daughter from potential harm from the victim. Mr Connors has suffered auditory hallucinations, paranoia and substance induced psychosis as a result of his drug use which would explain his rotating shifts to protect his daughter.

21. Mr Connors expressed regret for his offending despite maintaining his belief of the victim’s intention to cause harm to his daughter. The report states he was remorseful that he had caused distress to the bystanders who witnessed the offence.

22. With respect I find the opinion and recommendations of the psychologist Ms Dombrowski very thoughtful and realistic. These are found at paragraphs 17 through to 20. I will not set them out in full but the main points are:

1. it notes the environment in which he grew up. This includes the alcohol and violent environment he was brought up in particularly up to the age of 12, the fact that he has limited vocational experience and a general lack of structure or direction in his life. As was conceded by the Crown this is a case of a man with a background of social disadvantage which needs to be properly taken into account on sentencing in the manner acknowledged by cases such as Fernando and Bugmy. In arriving at the sentence set out below I have taken this factor into account.

2. The offending behaviour is largely driven by his unstable personality structure and his poorly controlled substance use. It is not suggested though that substance induced psychosis is a contributing factor to the offence and no submission was made to that effect.

3. The offender will require long-term treatment management and support over several years to achieve lasting behavioural change. His completion of the IDATP course in custody is encouraging though further treatment is required. This includes further treatment upon release and possibly the completion of the EQUIPS program which is available in custody. Further psychiatric treatment is also recommended.

23. In considering matters of social disadvantage it is important that there is evidence of it. In this case there is not only the history in the report just outlined but there was also evidence from the offender’s mother, Julianne Porter. She confirmed on oath the accuracy of the family history in that report. She confirmed that she had left her relationship with the offender’s father and then stopped drinking “pretty much”. The evidence was that the older siblings had trouble similar to the offender but that the younger children, and there were 10 in all, did not have the same disadvantages or troubles. One of those younger siblings attended court to support her brother.

24. A further report, a sentencing assessment report was also tendered as exhibit B in the case of Mr Connors dated 5 December 2019. It notes Mr Connors as being willing to engage with interventions to address his mental health and addiction issues. It records that he had responded satisfactorily to the supervision of his parole order from 30 January 2016 until 30 January 2018. This persuades me to think that an extended period on parole with a view to engaging in appropriate programs as recommended is more than just a hopeful aspiration in terms of compliance, despite the fact that this current offending occurred whilst on a bond. Despite this however and in light of the offenders record realistically the risk assessment was of medium high risk of reoffending. He was considered unsuitable for community service work due to his mental health and addiction issues.

25. In the submissions made on his behalf by Mr Cochran it was requested that this judgement in effect record a recommendation of residential rehabilitation with a dual facility which I took to mean a facility to deal with both the mental health issues and substance abuse issues. This was to add to the offender’s prospects of being so dealt with upon reaching the parole date. I accept that submission as being appropriate in this case and make that recommendation.

26. I have referred to the offender’s criminal history above in broad terms. To support the references that have been made to it I note that it is contained in exhibit A. From the age of 18 that record shows offences of affray, aggravated break and enter in company, aggravated break and enter and commit serious indictable offence, numerous take and drive conveyance matters, robbery with an offensive weapon and stalk/intimidate intend fear. This record clearly denied him any leniency. The record is lengthy and of serious offences. When scrutinised it reveals he has spent more than half of the last 10 years in prison, and possibly more depending on how much of the parole period may have been spent in custody (the custody record was not part of exhibit A). In 2014 and 2016 there were terms of imprisonment for the offence of assault occasioning actual bodily harm.

27. This record plainly does support a view that prospects are promising. Nevertheless, there has been a successful period of supervision on parole ending in 2018, and there is evidence of willingness to engage in interventions. For these reasons I consider there is a basis to justify orders that would facilitate rehabilitation.

Sentencing options

28. As noted above the maximum sentence for this offence is 10 years imprisonment, and there is a standard non parole period of 4 years. I take those statutory matters into account, utilising them as a yardstick.

29. Section 3A of the CSPA sets out the purposes of sentencing. Those purposes are punishment, deterrence, protection of the community, rehabilitation, to make an offender accountable for his or her actions, denunciation and to recognise the harm done to the community.

30. There was no argument in this case that there was no appropriate penalty other than a term of imprisonment. The argument for the offender focused on establishing special circumstances so as to allow a longer period of supervision to aid in the rehabilitation of the offender.

31. This case has the not uncommon characteristic of the purposes of sentencing stretching in different directions. The offending conduct plainly has no place in a civilised society and must be condemned and punished. At the same time the subjective case of the offender is a compelling one for a need for rehabilitation to be as assisted as possible. Long-term this has obvious community benefits. I have remarked on the rehabilitation prospects of the offender above, and to that I would also note the fact that whilst his work history is not good it is more than just a lifetime of unemployment with various periods of employment in different styles of work. This offender also has some family support from at least one younger sibling, and his mother who provides a good example of overcoming the very disadvantage the offender struggles from.

32. I was provided with some sentencing statistics. Those statistics have a well-known shortcoming, namely not knowing the facts of the offences they represent. One statistic does however stand out and that is that approximately 37% of cases which are dealt with by way of imprisonment have a term of three years. That provides some guide without being in any way more than that.

33. The sentence that I will impose takes account of the 25% discount.

34. Bearing in mind the objective seriousness of this matter taken together with the range of other factors discussed above, and also bearing in mind the principle of proportionality the conclusion I come to is that the non-parole period for the sentence should be 15 months.

35. Pursuant to section 44 CSPA, absent special circumstances the balance of term must not exceed five months. However I have found for the reasons set out above that there are special circumstances which justify a balance of term of a further 15 months. The basis of this is not just to assist in rehabilitation as discussed, but the above discussion bears out the concern of institutionalisation of the offender, who at 28 is still a young man, and so far as possible this should be sought to be avoided as becoming entrenched.

36. The offender has been in custody since his arrest on 7 April 2019 however has been in custody in respect of this matter only since 6 October 2019.

ORDERS – CONNORS

1. The offender is convicted of the charge of reckless wounding in company in contravention of section 35 (3) of the Crimes Act.

2. I impose a non-parole period of 15 months to commence from 6 September 2019 and expiring on 5 December 2020.

3. There shall be a balance of term of a period of a further 15 months expiring on 5 March 2022.

4. I note the recommendation made in these reasons intended to assist the offender upon his release on parole with residential rehabilitation.

Other matters - Laurie

37. Despite his initial denials Mr Laurie also entered his plea in the Local Court and so is also to benefit by a 25% discount for his early plea.

38. The Crown conceded that Mr Laurie also has a background of social disadvantage. This was evident from the history contained in the psychological report tendered on his behalf dated 19 December 2019. It was also evidenced by evidence given by his mother Vernice Laurie. She gave evidence that she was an alcoholic and confirmed the history given in the psychological report as being accurate.

39. That report gives the following history. Mr Laurie is a 33-year-old aboriginal man. He tended to minimise his traumatic childhood experiences and gave the impression of not recognising how abnormal some of those experiences and his behaviours have been. He said his mother was 16 when he was born and he was raised by his maternal grandparents in Coffs Harbour. At that time his mother engaged in heavy alcohol consumption. His mother visited regularly but he never had a mother son relationship with her in his childhood and never had any contact with his father. He told of a loving relationship with his grandmother and denied witnessing violence between his grandparents but agreed his grandfather was a heavy drinker. His grandfather worked and the financial needs were generally met but there were times of limited food. He told of witnessing domestic violence due to relationships of his mother with violent men. There were occasions when the offender took to his mother’s partners with knives. Despite this he said he felt safe of the child but also felt the constant need to protect himself from potential harm.

40. In approximately his mid-teens his grandparents had passed away resulting in him residing with his mother which the report writer suggests contributed to further emotional dysregulation and increased substance abuse by Mr Laurie. Mr Laurie said he felt he never really had any guidance in his childhood which certainly matches up to the facts after the death of his grandmother.

41. He had some difficulty at school and was expelled in year 7 for stabbing the principal and the author again notes that Mr Laurie does not appear to recognise how unusual this is. He did complete a year 10 equivalency whilst in detention and is said to no longer have literacy difficulties and has completed other courses in custody such as motor mechanics. His longest period of employment was about eight months and he has been engaged in a range of work. He had not worked in the two years prior to the offending and said he needs to get himself together first.

42. In terms of his health there was a history of head injuries including being hit by a rock and being hit by a mattock. He began binge drinking alcohol from as early an age as 10 but reduced this significantly after his first period of juvenile detention. Drug use also started at 10 with cannabis, mushrooms in his teens and early 20s as well as the occasional use of heroin with methyl amphetamine or ice use commencing at age 17 which continued so that by his mid-20s he was using it daily.

37. He has engaged in drug and alcohol courses but not an intensive rehabilitation program. When it was suggested he do this he said he “wouldn’t mind being free” from drugs. On this point the Crown made a submission that that did not encourage hopes of rehabilitation and I consider that is a fair submission. The comment of the psychologist that his insight and motivation needs support is a more positive way of expressing that point.

38. In addition to the obvious signs of social disadvantage referred to above the evidence was that Mr Laurie’s grandfather was removed from his home in that process referred to as the “stolen generation”. It is suggested that the offender has been impacted by his childhood experiences, and also by his grandfather’s removal albeit that most likely occurred before Mr Laurie was born. It may well be there is a connection though the evidence is a little vague on this point and in my view it does not matter because I am satisfied in any event that this is a case, as considered by the Crown, where the impact of social disadvantage is a mitigating circumstances to be taken into account.

39. In terms of relationships it seemed Mr Laurie has four children to 4 different partners and has no contact with three of the four children. His first relationship involved him being violent towards his partner. The next relationship involved mutual drug abuse and violence. There was a child born to each of these relationships. The next child was from a brief relationship and Mr Laurie was unaware his girlfriend was pregnant when they stopped dating. Following that there was another brief relationship and another child. The child’s mother died of a drug overdose. Mr Laurie Story does not know where that son is.

40. The psychologist addresses the criminal history of Mr Laurie which is extensive. It is described as primarily violent offences with no gaps in offending whilst in the community. This history was attributed by Mr Laurie to the fact that he “keep picking drug addicted women”. The psychologist’s comment that this indicates limited insight is an understatement to say the least.

41. Medical records show an admission to a psychiatric ward in August 2017 and a diagnosis of drug induced psychosis. A later episode of psychosis is said to be related to ice abuse. He has been on antipsychotic medication.

42. The psychologist asked whether the offender felt institutionalised. Based on the criminal record it was calculated in submissions that since 2004 Mr Laurie had spent 8 ½ years in custody. He told the psychologist that when he goes to prison he is quick to accept he is there and does not experience significant distress and also said he views life as easier in prison as his laundry is done and he is provided with his meals. The comment is made that the offender is likely to need intensive support to live pro socially in the community.

43. In the concluding paragraphs of this report it is offered that Mr Laurie appears to have been exposed to a modelling of violence and substance abuse throughout his early life which likely normalised these behaviours for him. He has engaged in violence in response to his own dysregulated anger and has developed justifications and minimisations for this behaviour. The report states that “from his early teens he entered into a pattern of substance abuse violence and custodial sentences that has been maintained over time by his justifications and minimisations, his difficulties regulating anger, his distorted belief about the appropriateness of violence and a lack of skills for pro social living. It appears that Mr Laurie’s index offending was a continuation of this pattern”.

44. The positive identified by the report is an apparent acknowledgement by the offender that he has a problem with anger. More realistic however is the ending sentence of paragraph 30 of the report, which states that his “antisocial attitudes and behaviours appear to be entrenched and he will require intensive support and intervention to avoid further offending”. This view is supported by his lack of insight commented on above.

45. The psychologist makes a recommendation that the offender be referred to the violent offenders treatment program and I propose making that recommendation which is designed to improve skills and to develop a comprehensive release plan which suggests that it will occur in custody. I would also recommend that whatever assistance that can be given in line with the same recommendation made in the case of Mr Connors occur upon Mr Laurie’s release. Any psychological counselling available on release in addition to this involving an aboriginal service should also occur if possible which may depend on where he resides upon release.

46. There was also a justice health report in respect of Mr Laurie dated 6 March 2018. It records a mental state examination which noted there was a degree of grandiosity and suspiciousness about the offender, expressing delusional ideas of being pursued by police and others using sophisticated camouflage / altering prime colours and people trying to kill him. This was on 5 February 2018. A week later on 12^th February 2018 Mr Laurie was reported to be more settled but remained deluded. On 26^th February 2018 the report indicates nil formal thought disorder with gradual improvement in persecutory delusions but remained convinced about conspiracy prior to incarceration with periods of irritability. There was gradual improvement but he remained paranoid including of most other inmates and he remained a risk of harm to cellmates.

Sentencing considerations

53. The case of Mr Laurie from a social perspective is tragic. Based on the evidence just reviewed he currently has very little prospect of being able to lead a pro social life in the general community. He plainly needs rehabilitation though to be frank it would appear that he does not have the insight to appreciate that is the case. His comments about being in prison bear out not just a risk of institutionalisation but the fact of it having already occurred to a significant extent.

54. I have canvassed the purposes of sentencing as set out in section 3A above in relation to Mr Connors. In the constant balancing that is carried out in sentencing between the protection of the community and rehabilitation it is difficult to conclude here other than the balance favours protection of the community. The likelihood of Mr Laurie reoffending is very high in my view. I made reference to his criminal history above when discussing the psychological report. His criminal history forms part of exhibit A. Mr Laurie was born on 3 September 1986 so he is now 33. He reached 18 in 2004. The first offence as an adult appears to have been on 7 November 2004 when he escaped police custody. In 2005 was a common assault count followed by a contravene apprehended domestic violence order by way it would seem of another common assault. In 2006 was assault occasioning actual bodily harm. In 2008 there was cause grievous bodily harm to a person with intent to which he pleaded to the alternative defence of recklessly cause grievous bodily harm for which he received a 4 ½ year sentence with a non-parole period of two years. The next recorded offence is 2014 which suggests there may have been some period of no offending of significance contrary to the psychological report however regular offending resumes from 2014 and then in 2016 of various matters such as assault, destroy property possess drug and contravene apprehended violence orders and assault occasioning actual bodily harm.

55. I would not in this case despair of attempts at rehabilitation. My view is that there should be an extended period on parole to facilitate that purpose. The difficulty is that I am also of the view that the need to protect the community is stronger in the case of Mr Laurie that it is in the case of Mr Connors. Whilst they are definitely on parity in terms of the objective seriousness of the offending they have carried out involving the machete, and whilst they also have almost parallel lives in the aspects of social disadvantage, exposure to violence and drug and alcohol abuse they are able to be distinguished on this point. That is, I consider Mr Connors to have a better case for rehabilitation and of being a lesser threat to the community.

56. As with Mr Connors there is of course the need to ensure proportionality and that the minimum amount of time spent in prison reflects the seriousness of the crime committed and not be some sort of anticipated preventative measure. The reality is that I do not consider a sentence can be structured which would have the effect of being proportional and yet at the same time allow for an extended period on parole. There was a suggestion in submissions that it would take as much of the year of rehabilitative measures to assist Mr Laurie to achieve the ability to lead a life if not free of offending or at least one that is an improvement on his past. The psychological report makes it clear that it will be a longer period than that, which I consider in any event to be self-evident. It is to be hoped that if the period of parole that I set is utilised towards rehabilitation that Mr Laurie will continue thereafter with the assistance of such services as are available to him along a path of rehabilitation.

57. Having considered the objective seriousness of this matter and having considered the subjective circumstances of Mr Laurie and having taken into account each of the matters discussed above I come to the conclusion that there should be a non-parole period of two years, with a balance of term of one year. This involves a finding of special circumstances which I make for the reasons discussed above including the issues of rehabilitation and institutionalisation.

58. The sentence will date from the date of his arrest of 26 March 2019 since when he has been in custody in respect of this matter only.

Orders-Laurie

1. The offender is convicted of the charge of reckless wounding in company in contravention of section 35 (3) of the Crimes Act.

2. I impose a non-parole period of 2 years to commence from 26 March 2019 and expiring on 25 March 2021.

3. There shall be a balance of term of a period of 12 months expiring on 25 March 2022.

4. I note the recommendation made in these reasons intended to assist the offender upon his release on parole with residential rehabilitation.

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Decision last updated: 15 October 2020