R v El Hajjar

[2021] NSWDC 116

District Court

New South Wales

Medium Neutral Citation:

R v El Hajjar [2021] NSWDC 116

Hearing dates:

11 March 2021

Decision date:

09 April 2021

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full-time custodial sentence. For Orders see [84]

Catchwords:

One count of wound with intent to cause grievous bodily harm; offence committed whilst offender in custody; principle of totality

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Evidence Act 1995

Cases Cited:

AM v R [2012] NSWCCA 203

Banks v R [2018] NSWCCA 41

Beil v R [2015] NSWCCA 120

Dixon v R [2019] NSWCCA 85

El Masri v R [2014] NSWCCA 13

Hillier v DPP [2009] NSWCCA 312

Imbornone v R [2017] NSWCCA 144

Kiernan v R [2016] NSWCCA 12

R v Jeremiah [2016] NSWCCA 241

R v Tuuta [2014] NSWCCA 40

Touhifalou v R [2018] NSWCCA 283

Veen v R (No 2) (1988) 164 CLR 465

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Ahmad El Hajjar (Offender)

Representation:

Counsel:
D Waldmann (Crown)
M Coroneos (Offender)

Solicitors:
H Kamib (Offender)

File Number(s):

19/311774

Publication restriction:

Nil

REMARKS ON SENTENCE

1. The offender is to be sentenced in respect of one count of wound with intent to cause grievous bodily harm pursuant to s 33(1)(a) of the Crimes Act 1900.

2. The offence occurred on 5 October 2019 whilst the offender was in custody at MRRC Silverwater, and he was serving a sentence of 9 years and 6 months with a non-parole period of 6 years and 6 months, from 21 April 2016, being an aggregate sentence in respect of offences including use of offensive weapon with intent to commit indictable offence, fire firearm in or near a public place, robbery while armed with dangerous weapon, possess unregistered and unauthorised pistol in a public place, together with several driving offences.

3. The maximum penalty for the offence is 25 years imprisonment and there is a Standard Non-Parole Period of 7 years imprisonment.

The sentence hearing

4. The sentence hearing took place on 11 March 2021. The Crown Sentence Summary became Ex A and it included a Statement of Agreed Facts which referenced CCTV footage of the incident, which was played in court (Ex B). The following is a fair summary of those facts.

5. The offender was 28 years of age at the time of the offence. There was a co‑accused, Hassan Ali, who was 25 years of age at the time. The victim was Hilal Merhi, who was 37 years of age at the time of the incident. All three men were inmates at MRRC Silverwater.

6. On 4 October 2019, the victim was transferred to pod 10 at MRRC from another pod within the prison. He was placed in a room on the upper level of the pod and the offender was in the next door cell.

7. On 5 October 2019 at around 2.13pm, the victim was sitting alone at a set of table and chairs in the general common area of pod 10. Shortly after the victim sat down, the offender came downstairs from the upper level into the common area and stood a short distance away and behind the victim for about two minutes. At 2.15pm, the offender ran towards the victim holding a light-coloured object in his right hand. When he arrived behind the victim’s right side, he raised his right arm and reached out with his left hand to hold the left side of the victim’s head and torso. The offender then stabbed the victim in the side of the neck with the implement held in his right hand, approximately six times, to the victim’s right neck and shoulder, before the victim raised his right elbow to try and stop the blows.

8. The victim then attempted to stand up whilst the offender continued to stab him from behind. He stabbed the victim a number of times to the back and side of his neck and shoulder, as the two struggled while standing, and eventually both fell to the ground with the offender on top of the victim.

9. The offender stood up and the victim, who was lying on his back, attempted to use his legs to stop the offender from lunging towards him again with the implement. The offender then moved around to the side of the victim and commenced numerous stabbing motions again towards the victim’s head and neck.

10. A number of inmates intervened, and following that the offender stood over and walked around the victim on the ground for a few seconds. The victim sat up on the ground with his hand up towards the offender, and attempted to back away whilst seated. The offender lunged at him again and stabbed towards the victim’s head. When the offender stepped back, the victim stood up and walked towards the guard’s office. Altogether, the offender stabbed at the victim approximately 20 times, however, the attack was over in less than 30 seconds.

11. The offender then walked towards the cell directly behind the table setting, and bent over and placed his hands into the toilet of that cell, leaving behind the weapon.

12. The co-accused, Ali, was later seen retrieving the weapon from the toilet and placing it in a plastic bag. He then ran into the laundry. Following a search, the weapon was located by Corrective Officers within the laundry, hidden behind a washing machine.

13. The victim suffered the following injuries:

- a 1cm stab wound to the left occiput which breached the dermis and epidermis, reaching down to the galea which was bleeding.

- on the right forearm there was a 2cm stab wound on the medial side which breached the dermis and epidermis, reaching the subcutaneous fat. On the lateral side of the same forearm there was a 1cm stab wound breaching the dermis and epidermis.

- on the right shoulder there were four stab wounds, each approximately 1cm in length, all four breaching the dermis and epidermis.

- on the upper back there was a 1cm stab wound breaching the dermis and epidermis.

- in all there were seven stab wounds, each of which required washing.

- the three deeper stab wounds (left occiput, right medial forearm and right shoulder) required sutures under local anaesthetic.

- there was bruising adjacent to the right clavicle as well as the left nipple.

14. Exhibit A contained the offender’s criminal history which had commenced in the Children’s Court. In 2009, he was convicted of drive whilst under the influence of alcohol or other drugs, never licenced 2nd + offence, state false name, assault officer in execution of duty (2 counts), and resist officer in execution of duty.

15. In 2010, the offender was sentenced to terms of imprisonment for offences of armed with intent to commit indictable offence (6 months) and stalk/intimidate intend fear of physical/mental harm (12 months with a non-parole period of 6 months) to be served concurrently. In 2011, the offender was sentenced to a term of imprisonment of 2 years and 3 months with a non-parole period of 1 year for an offence of break and enter house and steal goods to the value of more than $15,000.00. That related to an offence on 26 December 2008. The offender was sentenced to a term of imprisonment of 9 months with a non‑parole period of 3 months for a similar offence that had occurred on 4 April 2011.

16. In November 2012, the offender was sentenced to terms of imprisonment for offences that occurred on 18 September 2012 of destroy or damage property (6 months) and break and enter house (23 months with a non-parole period of 16 months).

17. In 2014, the offender was convicted of possession of a prohibited drug for which he was fined, and on 17 December 2014 he was sentenced to terms of imprisonment for further offences of dishonesty, namely, goods in personal custody suspected being stolen (6 months), larceny (18 months with a non-parole period of 7 months), and break and enter house (18 months with a non‑parole period of 7 months) to be served concurrently.

18. On 8 June 2018, the offender was sentenced to the aggregate sentence referred to above of 9 years and 6 months with a non-parole period of 6 years and 6 months commencing on 21 April 2016.

19. In addition, there were numerous other traffic, drive whilst disqualified, and possession of prohibited drug offences, for some of which, the offender was sentenced to short terms of imprisonment.

20. Exhibit A included the offender’s custodial history, together with the Remarks on Sentence of Judge Lerve at the Wagga Wagga District Court on 8 June 2018.

The offender’s evidence

21. The offender tendered a report of Mr J Machlin, clinical psychologist, dated 3 March 2021. Mr Machlin set out the family and personal history of the offender. The offender reported early recollections of domestic violence in the family home and that his mother left the home when he was aged 10. As the eldest of four children, thereafter the offender bore the brunt of his father’s violent habits. Recurrent problems with the law led to a series of admissions to juvenile and adult detention. He has recently reconnected with his mother.

22. The offender reported using cannabis at age 11 and at age 13, he discovered Xanax. He described forming a heroin habit at age 21 and had used cocaine, MDMA and ice regularly since age 24. In prison, he had habitually used un‑prescribed Buprenorphine and Xanax.

23. Under the heading “Mental health”, Mr Machlin recorded no formal history of mental health intervention. The offender had abused drugs to cope with troubled emotions from a young age. He had suffered paranoid thoughts since the age of 26 or 27, which were more enduring and compelling than auditory experiences. The author noted repeated placement in segregation whilst in custody for past aggressive acts. He estimated having spent a combined three and half out of the past five years in segregation. He had attended the EQUIPS aggression course in prison, but “it doesn’t sink into my head”.

24. The author noted the offender’s extensive criminal history.

25. Under the heading “Discussion of offence and surrounding factors”, Mr Machlin set out what the offender told him was the reason he carried out the attack.

26. On the Crown’s objection to that part of the report on the basis of hearsay, it was not read.

27. Mr Machlin recorded that the offender expressed remorse and regret for his actions.

28. Under the heading “Diagnosis”, the offender showed signs of personality dysfunction and reported long-standing poly-drug habits consistent with a Substance Use Disorder. The offender was prone to paranoia and Mr Machlin opined that the following diagnoses are most likely applicable to his complex mental condition:

• “Unspecified Personality Disorder – mainly featuring anti-social and borderline traits.

• Post-Traumatic Stress Disorder – he is likely to have significant trauma symptoms even if he does not meet full criteria for PTSD.

• Substance/medication-induced Psychotic Disorder – voices and paranoia are possible effects of recent or past substance use or withdrawal.”

29. Mr Machlin concluded that he was not able to say what the balance was between any perceived threat to the offender and his paranoia on the occasion of this offence. However, the offender “recognises that his actions were wrong, he conveys that he is troubled by his actions and the impact on the victim”.

30. Mr Machlin opined that the offender is at risk of further challenges to his mental health in custody. He made a number of treatment recommendations that would reduce the risk of the offender re-offending.

31. The offender also relied on an affidavit from Ms Wafa Elomari, the offender’s mother. In that affidavit she outlined physical abuse she received on a regular basis from the offender’s father. She divorced his father when he was 12 years old, however, following the divorce, the offender’s father refused her contact with the children and threatened abuse if she did not comply with his request. She deposed that as a result she had to abandon her children and she felt constant resentment knowing that she played no role in the offender’s upbringing. Ms Elomari deposed that she had been making an active effort to make up for this, and rekindle her relationship with the offender, and that they both wanted to be part of each other’s life and create a strong bond together.

32. The offender called two witnesses, Asama Hawat and Mahmoud Ahmad, who were both inmates at MRRC at Silverwater at the time of the offence. Mr Hawat was not present in pod 10 at the time of the incident in which Mr Merhi was stabbed, and was prevented from giving hearsay evidence. Mr Ahmad was an inmate in pod 14, a different part of the correctional centre. He gave evidence that he had been told something by a Corrective Services officer, following which, he had gone to pod 10 and tried to resolve what he referred to as “the problem”. He could not remember the name of the Corrective Services officer he spoke to, nor could he remember who he spoke to in pod 10. However, one of them was his brother, who was also an inmate, and Mr Merhi. The offender was standing at the back of the group while he spoke to those men.

33. Mr Ahmad was not in pod 10 at the time of the offence.

The Crown submissions on sentence

34. The Crown relied on a written outline of submissions in which it conceded the offender was entitled to a utilitarian discount of 25% on sentence.

35. The Crown submitted that the objective seriousness of the offence should be assessed as above the middle of the range of objective seriousness for an offence pursuant to s 33(1)(a) of the Crimes Act.

36. The Crown noted that the offender was sentenced by Judge Lerve on 8 June 2018 to an aggregate sentence of 9 years and 6 months, with a non-parole period of 6 years and 6 months to commence on 21 April 2016, which will expire on 20 October 2022. The present offence was committed on 5 October 2019, at which time the offender was “a convicted inmate of correctional centre”, therefore s 56 of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”) is engaged. Pursuant to s 56(2), the sentence to be imposed is to be served consecutively with the non-parole period of the sentence imposed by Judge Lerve, which means that the sentence to be imposed would commence on 21 October 2022. Pursuant to s 56(3), the Court may instead direct that the sentence is to be served either concurrently or partly concurrently and partly consecutively.

37. The Crown referred to the explanatory note regarding s 56 that provides such sentences are presumed to be consecutive unless there is a direction to the contrary. Further, the court should be mindful of the maintenance of public confidence in the administration of criminal justice and the need to ensure that:

“The sentence must effect sufficient general deterrence to demonstrate the violence and disorder between prisoners in custody will not be tolerated by the courts.” (referring to R v Jeremiah [2016] NSWCCA 241 at [9]; Touhifalou v R [2018] NSWCCA 283 at [40])

38. The Crown submitted the court must still have regard to the principle of totality, bearing in mind the statutory ratio and the purposes of sentencing, referring to Banks v R [2018] NSWCCA 41. The Crown thus submitted the offender’s sentence should commence on 21 October 2022.

39. In assessing the objective seriousness of the offending, the Crown referred to R v Tuuta [2014] NSWCCA 40 at [48] per Bellew J as to the relationship between the maximum sentence of 25 years and seriousness with which offences pursuant to s 33 are to be regarded. In AM v R [2012] NSWCCA 203, Johnson J identified the following relevant considerations to sentencing under the section:

“(i) the extent of injury suffered by the victim;

(ii) the ferocity of the attack;

(iii) the extent of planning and premeditation;

(iv) the duration of the attack;

(v) the failure to voluntarily end the attack, and

(vi) whether the attack is unprovoked, uncalled for and unjustified.”

40. The Crown submitted that the use of a weapon also affects the seriousness of the offence pursuant to s 21A(2)(c) of the CSPA. The Crown also submitted that the manner in which the wound was inflicted, the reason for its infliction, and the circumstances surrounding the wounding, are relevant when assessing the seriousness of the offence, referring to Kiernan v R [2016] NSWCCA 12 at [41]. Further, deterrence is important in the sentencing process, relying on R v Jeremiah, supra.

41. The Crown therefore submitted the offending fell above the middle of the range of objective seriousness for the following reasons:

“(i) the attack was ferocious and involved a considerably high degree of violence;

(ii) the attack was planned as it involved sourcing and/or constructing a “shiv” and co-ordinating with three other inmates;

(iii) the attack was premeditated, as it appears that the offence was not random and that the victim was targeted;

(iv) the attack lasted for 30 seconds and involved at least 20 stabbing motions, which is a relatively long period of time for a stabbing attack;

(v) the offender did not voluntarily end the attack, but only desisted once other inmates urged him to stop;

(vi) the attack was unprovoked, uncalled for and unjustified;

(vii) the victim was vulnerable, in that he was attacked from behind, whilst sitting down, in circumstances where he had no reason to apprehend an attack or have his guard up;

(viii) the offence involved the use of a weapon, namely a metal shiv;

(ix) the offender persistently stabbed at the neck of the victim, reflecting the seriousness of the injuries he intended to inflict;

(x) the victim suffered no less than seven wounds.”

42. The Crown submitted that the offending was premeditated and that the offender arranged for the victim to leave his cell and sit at the table with his back exposed so that he could attack the victim from behind. Further, the offender sourced the weapon, to which a degree of planning must have been devoted, as well as hiding the weapon after the stabbing. Following the offence, the offender secreted the weapon in a toilet bowl. The co-offender Ali then retrieved the weapon and secreted it in another place. The execution of this plan required the recruitment of three other inmates, namely, Ali and two other unknown male inmates. It was not a spontaneous or random attack.

43. The Crown submitted that the offender’s custodial record demonstrated that he had six intimidation charges, five possession of offensive weapon/instrument charges, four fight or other physical combat charges, and three assault charges. Most have occurred during his present period in custody. He had also incurred numerous other disciplinary infractions, with 56 entries in total.

44. The Crown submitted that this record impacts adversely upon the court’s assessment of the offender’s prospects of rehabilitation and the likelihood of him re-offending.

45. The offender had an extensive criminal history and has been in custody since 21 November 2015 when he was 25 years old. This also adversely impacts upon the offender’s prospects of rehabilitation and his likelihood of re‑offending.

46. The Crown applied pursuant to s 4 of the Evidence Act 1995 to have the rules of evidence apply so as to object to the self-serving assertions outlined in the report of Mr Machlin, which may have established the offender was provoked. Alternatively, the Crown submits that no weight should be afforded to those assertions, relying on Imbornone v R [2017] NSWCCA 144 at [576].

47. The Crown submitted that the offender’s history of violent behaviour, both within the community as well as within custody, belies his claim to have been acting in self-defence. In El Masri v R [2014] NSWCCA 13, the court had rejected a similar claim, stating:

“It is important that the courts do nothing to encourage self-help in the form of criminal conduct.”

48. The Crown noted that Mr Machlin was unable to determine whether the offending was attributable to the offender’s admitted paranoid attitude of “getting them before they get me”, or a real threat. The Crown submitted that the mitigating factor of provocation has not been established and should not be relied upon to ameliorate the offender’s moral culpability.

49. With respect to remorse, the Crown submitted that the offender had limited insight into his offending. The offender had minimised his offending conduct by suggesting that he “could have acted a better way”, which indicated a failure to fully appreciate the seriousness of his offending conduct.

48. The Crown submitted it was open to the court to find that the offender’s claim of remorse was not genuine and that he had assigned blame to the victim, which would weigh against a finding of remorse. It was submitted that his plea of guilty may or may not be indicative of remorse or contrition, particularly against an overwhelming Crown case.

49. The Crown submitted that a finding of special circumstances should not be made, as the statutory ratio would provide an adequate period of supervision. If it was submitted on behalf of the offender that he was at risk of being institutionalised, the Crown relied on Dixon v R [2019] NSWCCA 85 and Beil v R [2015] NSWCCA 120, to submit that it was open to a sentencing judge to decline to make a finding of special circumstances and a risk of institutionalisation does not compel such a finding. The Crown submitted that the offence occurred whilst the offender was serving the non-parole period for very serious offending, but he has poor prospects of rehabilitation and is not unlikely to re-offend, has attempted to justify that offending, and has minimal insight into his offending conduct. In those circumstances, the Crown submitted that departure from the statutory ratio was not justified.

Submissions on behalf of the offender

52. Counsel for the offender relied on a written outline of submissions in which it was accepted that it would be appropriate for the offender to be sentenced to a sentence of full-time custodial imprisonment. Counsel set out the purposes of sentencing and statutory factors to be taken into account pursuant to s 21A of the CSPA. The following aggravating factors were accepted to be relevant:

“Section 21A(2)(c) – the offence involved the actual threat and use of a weapon

(2)(d) – the offender has a record of previous convictions, and

(2)(n) – the offence was part of a planned or organised criminal activity.”

53. Counsel submitted that the offender’s record of previous convictions should not be treated as an aggravating factor in accordance with Veen v R (No 2) (1988) 164 CLR 465. The antecedent criminal history further does not affect the objective seriousness of the offence, relying on Hillier v DPP [2009] NSWCCA 312.

54. The offender submitted that a finding must be made beyond reasonable doubt before a degree of planning could be held to be an aggravating factor pursuant to s 21A(2)(n). Mitigating factors should be taken into account pursuant to s 21A(3) of the CSPA:

“(3)(c) the offender was provoked by the victim;

(3)(d) the offender was acting under duress;

(3)(g) the offender is unlikely to re-offend;

(3)(h) the offender has reasonably good prospects of rehabilitation;

(3)(i) the remorse shown by the offender for the offence;

(3)(j) the offender was not fully aware of the consequences of his actions because of disability;

(3)(k) the plea of guilty by the offender to the offence.

55. The offender submitted that his plea of guilty was evidence of some remorse and an appropriate discount for the utilitarian value of the plea was 25%.

56. Counsel for the offender referred to the principle of individuality in sentencing by having regard to all of the circumstances of the offence in formulating an appropriate sentence.

57. Counsel further submitted that having regard to the length of the earlier sentence imposed on the offender, it could be unfair to him not to backdate the date of commencement of the sentence to be imposed upon him. Thus, it was submitted that the commencement of the sentence to be imposed should be backdated to the date of his arrest on 5 October 2019.

58. It was submitted that the Standard Non-Parole Period proscribed of 7 years is a guidepost or yardstick in the sentencing process.

59. Counsel for the offender also referred to JIRS statistics which demonstrated that 92% of recorded cases had a full-time custodial sentence imposed within a range of 2 years 6 months and 10 years, with a median total sentence of approximately 5 years and 6 years. The non-parole period was shown to be within the range of 1 year and 6 months and 7 years, with the median non-parole period of approximately 3 years and 3 years 6 months.

60. Counsel conceded that the s 5 threshold had been crossed and no sentence other than imprisonment was appropriate in these circumstances. That was the first stage of a three-stage process. The second stage is determining the term of the sentence, and the third stage is the consideration of whether there are any alternatives to full-time imprisonment.

61. Counsel further submitted that a finding of special circumstances should be made so as to vary the statutory ratio between head sentence and non‑parole period.

62. In his oral submissions, counsel for the offender noted that the offender had spent over 50% of his adult life in custody. He had pleaded guilty at the first available opportunity and a 25% discount on sentence had been conceded by the Crown.

63. Counsel submitted that whilst offences pursuant to s 33(1)(a) constitute serious offending, given the maximum sentence and non-parole period, on the Agreed Facts, this attack was over in less than 30 seconds. It involved seven stab wounds, three of which required sutures and there was some bruising to the victim.

64. Counsel submitted that it was open to the court to consider the offender’s plea of guilty had significant utilitarian value to the criminal justice system, in that it alleviated the necessity for a trial. It was however, given in the face of a strong Crown case.

65. Counsel rehearsed his submissions as to the objective seriousness of the offender. He referred to the Judicial Commission sentencing tables which involved offences which were very serious because of the infliction of permanent injuries. Here, it was not suggested that there was any life threatening injury and the victim was able to get up very quickly after the incident. With respect to the ferocity of the attack, it was noted that it was of short duration. Counsel accepted that there was a level of planning involved and that an aggravating factor pursuant to s 21A(2)(c) was that it involved the use of a weapon.

66. On the question of whether the attack was unprovoked, counsel referred to the report of Mr Machlin as evidence of what was operating on the offender’s mind at the time. The evidence demonstrated that something was happening in pod 10 and the witness Mr Hawat was told something by the victim. It was submitted that on the balance of probabilities the court would find that there were some underlying concern of something happening in pod 10, and it was submitted that if the offender was told something, it was on his mind and that he acted on evil thoughts as an element of his paranoia.

67. It was submitted that the court would not find as the Crown had submitted, that this was pre-emptive offending behaviour. The court, on the whole of the evidence, would not be able to make a finding that the offending was unprovoked, unjustified and unexplained. This submission was made notwithstanding the limited value of Mr Machlin’s report. Notwithstanding that oral evidence had been excluded, the court would take it into account as a matter of weight that the attack was provoked. On the question of the date of commencement, counsel rehearsed his submissions as to the application of the principle of totality. The JIRS statistics revealed a range of sentences between 2 years and 6 months and 10 years, with a median between 5 and 6 years imprisonment. The median non-parole period was between 3 and 3 and half years imprisonment. Here, it was submitted that there was limited but serious injuries inflicted during an offence of short duration, in circumstances where in the offender’s mind he believed he would be attacked. Thus, it was submitted the objective seriousness of the offending was at the mid-range or just below. It was further submitted that the sentence should be backdated to 5 October 2019. In exercising the court’s discretion to backdate, the court would take into account the evidence of the offender’s remorse and contrition to backdate the sentence to a date close to 5 October 2019.

Crown submissions in reply

68. In reply, the Crown submitted that the JIRS statistics referred to did not relate to the years 2020 and 2021, and therefore diluted the already limited value of them.

69. With respect to the issue of provocation, the Crown submitted that it was not established on the balance of probabilities. The evidence of Mr Hawat and Mr Ahmad went nowhere, and the court could not take into account the assertion by the offender to the psychologist. If the objection of the Crown was upheld, there was no evidence whatsoever of provocation, and even if the evidence was admitted, it would have little weight because of the paucity of detail.

70. Further, the court had not heard from the offender as to what was going through his mind at the time of the offending. On the evidence, there was no basis to find that the offender was provoked.

71. The Crown submitted that even if the court accepted that he was provoked, the response by the offender was so grossly disproportionate, it could not ameliorate his moral culpability for the offending. Further, the Crown relied on the principles articulated by the Court of Criminal Appeal in discouraging courts condoning such behaviour in custody, namely, by prisoners taking the law into their own hands. Here, there was the possibility of segregation, as an option for the offender, rather than attacking the victim.

72. Finally, the Crown submitted that the possibility of provocation did not reduce the objective seriousness of the offending conduct.

Determination

73. Section 3A of the CSPA sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(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.”

74. In assessing the objective seriousness of the offending, having regard to all the Agreed Facts, I find that the attack was ferocious and involved a high level of violence, constituted by some 20 stabbing motions with a sharpened shiv, to the neck and upper body of a vulnerable victim who was attacked from behind whilst sitting down. I accept the Crown’s submission that the victim had no reason to apprehend an attack, or have his guard up, and that he suffered the seven wounds outlined above. I also take into account that the offender did not voluntarily end the attack, but only desisted once other inmates urged him to stop. I also take into account that the attack lasted for 30 seconds. The evidence was insufficient upon which to base a finding on the balance of probabilities, that the offender was provoked into making the attack, or that he acted in self-defence. Rather, I find that it was an unjustified attack arising from paranoia, in accordance with Mr Machlin’s provisional diagnoses of unspecified Personality Disorder, PTSD and substance/medication induced Psychotic Disorder. I find the objective seriousness of the offence was just below the mid-range for an offence pursuant to s 33(1)(a) of the Crimes Act 1900. It still constituted very serious criminal offending.

75. I find the following were aggravating factors pursuant to s 21A(2) of the CSPA:

(2)(c) The offence involved the actual threat and use of weapon. In this case, the offence involved the use of a weapon known as a shiv, which had been secreted within the prison complex prior to the incident and was, following the incident, again secreted by the co-offender.

(2)(d) The offender had a record of previous convictions.

In this case, that record was extensive. In Veen v R (No 2), supra, the High Court said as follows:

“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.”

This offender’s record falls within the latter category.

(2)(n) I find that there was planning involved in this criminal activity, with respect to the offender obtaining the weapon, but also waiting for his opportunity when the victim was seated in the common area for a period of time prior to the offence.

76. Of the mitigating factors advocated by the offender, pursuant to s 21A(3) of the CSPA, the evidence does not establish on the balance of probabilities that the offender was provoked by the victim or that the offender was acting under duress ((3)(c) and (d) respectively). I am satisfied that by his early plea of guilty the offender has demonstrated some remorse for the victim ((3)(i) and (k)), however, I am not satisfied on the balance of probabilities that it is a mitigating factor that the offender was not fully aware of the consequences of his actions because of a disability ((3)(j)).

77. Nor am I satisfied on the balance of probabilities that the offender has reasonably good prospects of rehabilitation ((3)(h)) and that he is unlikely to re-offend ((3)(g)). The offender’s criminal antecedents demonstrate a spectacular failure to rehabilitate himself from long-standing drug and alcohol, mental health and anger management issues. The self-serving statements made to Mr Machlin by the offender must be treated with some circumspection in the face of that history, and therefore I find that his prospects of rehabilitation must be guarded and there must be a reasonably high risk of recidivism unless the offender fully engages with the treatment regime recommended by Mr Machlin to address his underlying mental health and drug and alcohol issues.

78. It is well established that general deterrence is important for offences of violence committed by prisoners in custody upon other prisoners. A clear message must be sent to not only the community, but also the prison population, that the courts will impose condign punishment in appropriate cases so as to maintain public confidence in the administration of criminal justice. Further, the courts will not tolerate prisoners in custody taking the law into their own hands. Specific deterrence is also important here, in that the offender, who has spent the last five years in custody, must understand that he will be subject to increasingly long terms of imprisonment if he continues to offend.

79. I take into account the maximum penalty for an offence pursuant to s 33(1)(a) of the Crimes Act 1900 of 25 years imprisonment, and the Standard Non‑Parole Period proscribed of 7 years imprisonment. Not only does the maximum penalty and Standard Non-Parole Period indicate the seriousness of such offences, but they remain as guideposts in the sentencing process.

80. The offender is entitled to a 25% utilitarian discount on sentence in respect of his early plea of guilty. As outlined above, I also take that plea into account as some remorse for his offending conduct. Whilst the offender has not given evidence, I must treat with circumspection the self-serving statements made to Mr Machlin about his background. However, I accept the evidence of his mother provided by affidavit, which was not challenged by the Crown, that the offender was exposed to domestic violence at an early age and was deprived of his mother’s presence in his life due to her having to abandon her children as a result of their father’s threat of ongoing physical abuse. I note the offender’s mother’s desire for her and the offender to rekindle their relationship and to create a strong bond in the future. I also take into account the offender’s long-standing poly-substance abuse and mental health issues outlined by Mr Machlin. These have the effect of diminishing the need for general deterrence in the sentencing process.

81. I am satisfied that the threshold in s 5 of the CSPA has been crossed, and having considered all possible alternatives, no penalty other than imprisonment is appropriate in the circumstances. Section 56(2) provides that any sentence is to be served consecutively with the offender’s current sentence, however, pursuant to s 56(3), the court has a discretion to direct that any sentence be backdated so as to be served either concurrently, or partly concurrently and partly consecutively with the offender’s present sentence. The importance of consecutive sentences being imposed pursuant to s 56(2) is to ensure that the maintenance of public confidence in the administration of criminal justice is not undermined. I am, however, satisfied that any sentence should be backdated, but not to the date of the offence which would mean that any sentence would be almost totally concurrent with the offender’s present sentence, noting that his non-parole period expires on 20 October 2022. I intend to backdate the commencement of the sentence to a mid-point between the date of the offence and the expiry of the offender’s current non-parole period. The sentence will therefore commence today.

82. I am not persuaded that a finding of special circumstances should be made here. The offender will have sufficient time on parole supervision to engage in rehabilitation so as to ensure his productive return to the community, something which he has failed to do in the past.

83. Having regard to the objective seriousness of the offending, the aggravating and mitigating circumstances, together with the subjective features of the offender’s case, and allowing for a 25% utilitarian discount on sentence, I intend to sentence the offender to a head sentence of 4 years and 6 months, with a non-parole period of 3 years and 4 months, to commence on 9 April 2021 and to expire on 8 August 2024. The balance of term will be a period of 1 year and 2 months.

Orders

84. I make the following orders:

1. You are convicted of the offence of wound with intent to cause grievous bodily harm pursuant to s 33(1) of the Crimes Act 1900 (Sequence 1).

2. I sentence you to a non-parole period of 3 years and 4 months to commence on 9 April 2021 and expire on 8 August 2024.

3. The balance of term will be a period of 1 year and 2 months to commence on 9 August 2024 and expire on 8 October 2025.

85. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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Decision last updated: 09 April 2021