R v David Morris MACINDOE

[2006] NSWDC 146

CITATION:	R v David Morris MACINDOE [2006] NSWDC 146
HEARING DATE(S):	15/12/2006
JUDGMENT DATE:	15 December 2006
EX TEMPORE JUDGMENT DATE:	12/15/2006
JUDGMENT OF:	Berman SC DCJ
DECISION:	See Paragraphs [23] & [24]
CATCHWORDS:	Criminal Law - Sentence - Mental Illness - Assault - Malicious Wounding - Form 1
LEGISLATION CITED:	Crimes Act 1900 Mental Health Act 1990
CASES CITED:	R v Thompson and Houlton (2000) NSWLR 383
PARTIES:	Crown David Morris Macindoe
FILE NUMBER(S):	06/11/0844
SOLICITORS:	NSW DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: David Morris Macindoe appears for sentence today having committed a number of offences of great concern to the community. He committed those offences whilst under the influence of a mental illness from which he has suffered for sometime. That fact suggests that less weight should be given to general deterrence and that the offender will do his time in custody harder than he might otherwise. It also has implications for the offender’s moral culpability, but it also works the other way, because the very factors which suggests that less weight should be given to general deterrence require that more weight be given to the protection of the community due to the danger that Mr Macindoe poses to its members.

2 On the evening of Friday 14 April 2006 the offender was in the vicinity of the Art Gallery of New South Wales. It is apparent that he spent a great deal of time in that location. A young woman, Nicole Livesley, and her boyfriend, Daniel Mussen, were sitting in that area when the offender walked up to them. They did not speak and they saw the offender going through rubbish bins and walked in a northerly direction. Without warning the offender came at Ms Livesley. He was armed with a bottle and swung it at Ms Livesley. The bottle broke, causing significant wounds to Ms Livesley's face and shoulder. After that the offender went towards Mr Mussen. He waved the broken bottle in close proximity to Mr Mussen, saying “Come on cunt come on.” He then began to run away. Another person in the vicinity, Mr Lunetta, had heard the commotion and he ran towards Ms Livesley. As he did this the offender pointed the broken bottle at Mr Lunetta. He was screaming at Mr Lunetta as he did so. Ambulance officers were called and Ms Livesley was taken away for treatment. The offender was located a short time later and he was taken to the police station, where he participated in an interview with them.

3 The offender pleaded guilty at an early opportunity to maliciously wounding Ms Livesley and assaulting Mr Mussen. When I sentence him for the malicious wounding matter he asked that I take into account the offence of assaulting Mr Lunetta.

4 He also asked that I take into account a matter that occurred two days earlier, when he committed the offence of assault occasioning actual bodily harm upon a Ms Badby. She was walking near the Art Gallery of New South Wales on 12 April 2006, when, for no apparent reason, the offender punched Ms Badby to the side of her face. Ms Badby suffered from bruising to the left side of her cheek. At the time she was with her fourteen year old daughter and another fourteen year old friend of her daughter’s. The impact thus of this offence was not only on Ms Badby, but also it represented a significant breach of the peace, causing distress to two young girls.

5 The matters on the Form 1 indicated a greater need for retribution and personal deterrence than would otherwise be the case.

6 What was it that led Mr Macindoe to commit these violent offences upon complete strangers? As I mentioned at the beginning of these remarks on sentence Mr Macindoe has for a number of years suffered from a mental illness. It is a condition of that mental illness that he hears voices. It appears that he perceives that people are subconsciously or telepathically communicating with him, calling him racist names such as nigger. On 14 April 2006 he perceived that some people were calling him nigger using their subconscious, although apparently Ms Livesley was not.

7 Dr Westmore, who saw the offender, has assessed him as suffering from chronic schizophrenia of the paranoid type. He actually considered that on the balance of probability Mr Macindoe was not guilty, suffering from a mental illness which would have totally deprived him of his capacity to know that he should not do the act.

8 The Crown asked me to disregard this, because of statements in the interview that Mr Macindoe had with police which indicate to the contrary and which it is apparent Dr Westmore was not aware of.

9 Mr Evenden, who appeared for Mr Macindoe, also asked me to disregard that insofar as it suggested that Mr Macindoe was not guilty. He made it clear that the offender admitted his guilt and thus as part of that admitted that he knew in a moral sense that what he was doing was wrong. That is a significant matter in assessing the moral culpability, because although the offender’s moral culpability is lessened by the circumstance that he perceived people to be insulting him telepathically, as the crown has pointed out this morning, there are clear indications in the interview with police that the offender knew very well what he was doing and knew that what he was doing was wrong. He was provoked by the words he believed he heard, but he was certainly not acting in self defence to the situation as he perceived it. He simply, as Mr Evenden said, “Lost it.” That explains why he would smash a bottle into the face of Ms Livesley even though he did not perceive her to be one of those people telepathically insulting him. Thus, although the offender, of course, is deserving of considerable sympathy because of the fact that he suffers from his mental illness he is not deserving of sympathy when he chooses to angrily retaliate against those who in his mind call him racist names, and, more importantly, those who happen to be nearby those who as he perceives things call him racist names. He told police that he assaulted Ms Livesley and Mr Mussen because they were easy prey.

10 It is be noted that it is a matter of obvious aggravation that on 14 April 2006 the offender was on bail for the matter committed on 12 April 2006.

11 Although the offender has suffered from a mental illness for a significant period of time, as was pointed out to me, his criminal history records on it only some infrequent and relatively minor matters. However, things appear to have escalated considerably in recent times. The crown tendered to me, over objection, information concerning other actions of the offender, where he was violent towards people for no apparent reason. He was dealt with on those occasions under s 33 of the Mental Health Act.

12 I am more concerned with the offender’s actions than the way they were disposed of, because one of the most important, in fact, the fundamental rationale of sentencing is to protect the community.

13 There are clear elements in the material before me suggesting the offender’s dangerousness, especially if he is not treated for his mental illness. I do not mean to suggest any element of moral blameworthiness when I say that there are indications that the offender has a lack of insight into his condition. He has told the Probation and Parole officer that whilst he is willing to continue fortnightly injections for the treatment of his schizophrenia illness he saw no need to have regular consultations with a psychiatrist.

14 The offender’s parents separated at a very early age and he has been raised by a variety of carers. He has seen his natural mother only once and has a very strained relationship with his natural father, who was imprisoned in 1990 after being convicted of having sexual intercourse without consent of the offender’s sister. He was raised in a home with his natural father and then with foster parents as well as other relatives. For many years he has lived on the streets.

15 He was diagnosed with schizophrenia about ten years ago and has been hospitalised on occasions, both as a voluntary and involuntary patient. One of the complications in this case involves the fact that the offender, as well as having an underlying mental illness, exacerbates his condition by consuming illegal drugs. He does not agree with the precise record of his drug consumption, as contained in the Pre-Sentence Report, but does agree that he has consumed drugs in the past, including the drug Ice.

16 The protection of the community due to an offender’s dangerousness is a matter which a sentencing judge is entitled to take into account, provided, of course, that he does not receive a longer sentence than would objectively be required. Within that constraint I am able to increase a sentence to reflect the need to protect the community. I am satisfied that it is necessary to do that in this case.

17 The attack on Ms Livesley was a very serious one, involving a nasty weapon. She has been left with entirely foreseeable consequences. They are both psychological and physical. She now has an unsightly scar on her arm and as recorded in her Victim Impact Statement she is embarrassed by this and is unable to wear clothes she would otherwise wear, because she needs to hide that scar.

18 The psychological impact on Mr Mussen is also significant and again is entirely understandable and foreseeable.

19 The offender pleaded guilty at an early opportunity. That is a matter which carried both with it a utilitarian benefit and also a suggestion of remorse. The utilitarian benefit for an early plea is, according to Thompson & Houlton, usually to be accorded a discount of somewhere around 25 per cent, but that is a matter which is the subject of discretion. There will be cases, as Thompson & Houlton recognises, where to allow a discount of twenty-five per cent for an early plea of guilty leads to an inadequate sentence. I have not discounted the sentence I would have imposed on the offender by twenty-five per cent, because I consider that to do so would lead to an inadequate punishment upon him and would inadequately protect the community.

20 One thing is clear, and that is this: the offender will be released from custody. It is in the community’s interest that he be supervised upon that release for an extended period. I will, therefore, vary the ratio between non parole period and head sentence from a statutory ratio in order to provide that extended period of supervision on parole.

21 Mr Evenden asked that I impose concurrent sentences, because these two offences were committed during the one episode. That is true, but it must be recognised that two people have suffered, one more so than the other, of course, by the offender’s two separate offences and so there will be a slight element of accumulation in the sentences I will shortly announce.

22 The crown did ask me to find that it was an aggravating circumstance that a weapon was used. It is not an element of the offence of malicious wounding that a weapon was used, but it would almost always be the case. So I will not increase the sentence merely because a weapon was used on this occasion.

23 For the offence of assault committed on Mr Mussen the offender is sentenced to imprisonment. I impose a fixed term of one year, to commence on 14 April 2006. That is a fixed term because of the sentence I will now announce.

24 For the offence of malicious wounding, taking into account the two matters on the Form 1, the offender is sentenced to imprisonment. I set a non parole period of two years, to commence on 14 July 2006. It will expire on 13 July 2008, on which date the offender is to be released to parole. I set a head sentence on the malicious wounding matter of four years so the offender is eligible to be released to parole on 13 July 2008.

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