R v Ghamraoui

[2023] NSWDC 602

District Court

New South Wales

Medium Neutral Citation:

R v Ghamraoui [2023] NSWDC 602

Hearing dates:

4 August 2023

Date of orders:

10 November 2023

Decision date:

10 November 2023

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Specify an aggregate term of imprisonment of 5 years 8 months with a non-parole period of 2 years 9 months

Catchwords:

CRIME — Violent offences — Recklessly cause grievous bodily harm — In company

CRIME — Weapon offences — Possess a prohibited weapon

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentence

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Poisons and Therapeutic Goods Act 1966 (NSW)

Summary Offences Act 1988 (NSW)

Weapons Prohibition Act 1998 (NSW)

Cases Cited:

Livesey v New South Wales Bar Association of New South Wales [1983] 151 CLR 288

Markarian v R, Markarian v The Queen [2005] HCA 25

Muldrock v The Queen [2011] HCA 39

R v Borkowski [2009] NSWCCA 102

R v De Simoni [1981] 147 CLR 383

R v Hrncic [2022] NSWDC 455

R v Quinlan [2021] NSWCCA 284

R v Reid [2004] NSWCCA 301

Tepania v R [2018] NSWCCA 247

Veen v The Queen (No 2) (1988) HCA 14

Category:

Sentence

Parties:

Rex (Crown)
Abdul Ghamroui (Offender)

Representation:

Counsel:
D Dalton SC (Offender)

Solicitors:
Nikola Velcic & Associates (Offender)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2022/00050803

Judgment

Introduction

1. Abdul Ghamraoui appears for sentence for an offence contrary to s 35(3) Crimes Act1900 (NSW) expressed thus:

On 18 March 2020 at Hunters Hill in the State of New South Wales while in the company of Dorian Hrncic, did wound Sebastian Lim, being reckless as to causing actual bodily harm to the said Sebastian Lim.

2. There is a related offence of possession of prohibited weapon, knuckle dusters, contrary to s 7(1) Weapons Prohibition Act 1998 (NSW) before the Court, pursuant to s 166 Criminal Procedure Act 1986 (NSW) and therefore is to be dealt with as a summary offence. It is expressed thus:

Between 8.00pm and 9.00pm on 18 March 2020 at Hunters Hill in the State of New South Wales, did possess a prohibited weapon, namely knuckle dusters.

3. The offender consented to the determination of sentence for the summary offence in these proceedings and pleaded guilty to the charge when it was read to him.

4. There are further offences before the Court pursuant to s 166 Criminal Procedure Act 1986 which the Crown withdraws.

Penalties

5. The maximum penalty for the offence contrary to s 35(3) Crimes Act 1900 is imprisonment for 10 years with a standard non-parole period for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999 (NSW) of four years.

6. The maximum penalty for the weapons offence is imprisonment for 14 years with a standard non-parole period of five years, but as the matter is to be disposed of as a summary offence as if in the Local Court, the jurisdictional limit is imprisonment for two years with a fine of $11,000 and the standard non-parole period for that offence is not brought to account. The benchmark for the assessment of sentence however is the term of 14 years to which the offender would be exposed if prosecuted on indictment.

7. The standard non-parole period for the wounding offence is relevant to the assessment of sentence for that charge. The provisions introducing standard non-parole periods in Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999 were amended after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39, adopting the principles enunciated.

8. S 54A(1) provides that the standard non-parole period for an offence is that which is included in the table to the provisions. S 54A(2) provides that the standard non-parole period represents the non-parole period for an offence in the table that falls within the middle of the range of objective seriousness, considering only the objective factors affecting its relative seriousness. S 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. S 54B(3) requires that the Court record its reasons for setting a non-parole period that is longer or shorter, identifying each factor taken into account.

9. The objective gravity is assessed upon consideration of the objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders, but by reference to the nature of the offending, bringing into account relevant factors provided in s 21A of the Act, except for those that are essential elements or integral characteristics of the offence.

10. There is discussion by Johnson J in Tepania v R [2018] NSWCCA 247 about this to which I shall refer.

11. The setting of the non-parole period is but part of the task whereby the Court determines the appropriate sentence, regardless of whether guilt is admitted or established after trial and whether or not the offence falls within the low, middle, or high range of objective seriousness. The Court must identify all relevant matters bearing upon the question of the appropriate sentence in the process of intuitive synthesis discussed, for example, by McHugh J in Markarian v R, Markarian v The Queen [2005] HCA 25.

12. The standard non-parole period and the maximum penalty are legislative guideposts for the sentencing Court with other established sentencing practices by reference to ss 3A, 21A, 22, and 23 of the Act where relevant.

13. In Tepania v R obit Johnson J discussed these provisions at para 109 and following from para 111 continued, citations omitted:

“In sentencing for an offence (whether or not a standard non-parole period), a Court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offence, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence...motive for the commission of an offence is an important factor on sentence...

14. The concept of “moral culpability” was used by the sentencing Judge in this case and in submissions to this Court. The term “moral culpability” has been used (in a somewhat flexible way) as part of the general law of sentencing. The term may be found in several decision of the High Court. In Veen v The Queen (No 2) (1988) HCA 14, it was observed (at 476-477) that a mental abnormality may diminish moral culpability and an antecedent history may eliminate moral culpability.

15. In Muldrock v The Queen (at 140) [58], it was observed that the applicant’s limited moral culpability may mean that retribution and denunciation did not require significant emphasis.

16. Thus, the assessment of sentence requires consideration of the objective seriousness of the offence and the extent of the moral culpability exhibited by the offender in his commission of the offence. As will appear, applying these principles the objective gravity in these offences is above mid-range.

Discount for Pleas of Guilty

17. For the utility of the plea of guilty to the possess of the knuckle dusters the offender is entitled to a discount of 25% for the sentence that would have otherwise been imposed in accordance with R v Borkowski [2009] NSWCCA 102. The plea was entered at the first opportunity in Court today for resolution of the matter.

18. For the wounding offence however, the extent of any discount of the plea of guilty is governed by s 25B(2)(b) Crimes (Sentencing Procedure) Act 1999. The plea was entered on 8 May 2023 when the trial was listed to commence on 13 June 2023 and thus the offender is entitled to a discount of 10% for the sentence that might have otherwise been imposed.

Pre-Sentence Custody

19. The offender is in custody following his plea of guilty on 8 May 2023.

20. The Crown sentence summary specifies that he was arrested for this matter on 21 February 2023, but this is an error as the Crown acknowledged today in the course of these proceedings. JusticeLink confirms that he was arrested on 21 February 2022 and allowed bail with the following conditions:

1. A curfew between 8.00pm and 8.00am.

2. To reside at a specified address and to be there between 8.00pm and 8.00am each day.

3. Not to go near or contact, or try to go near or contact (except for a legal representative) his co-offender, Dorian Hrncic.

4. In respect of the victim, or anyone with whom he has a domestic relationship – not to assault or threaten them, or stalk or harass or intimidate them, or intentionally or recklessly destroy or damage any property, or harm an animal that belongs to or is in the possession of Sebastian Lim.

21. The conditions were not in any measure onerous for the period of time the offender was on bail, 1 year, 2 months and 15 days, save for the constraint of the residential requirement and the curfew for which he must be allowed consideration as part of the punishment he suffers from his crimes, R v Quinlan [2021] NSWCCA 284.

22. I shall commence the aggregate sentence I intend to impose on 8 February 2023 which allows him the benefit of 3 months for the limitations of bail imposed upon him. There is no indication that he was in breach of any bail at any time.

The Facts

23. First, I will note the offender did not give evidence in the proceedings and therefore I have no sworn evidence from him regarding the facts or regarding the subjective matters that are covered in the various documents tendered on his behalf. This said, he does not resile from the significance of the misconduct upon which he engaged in the course of representations on his behalf by way of his counsel and the content of the subjective material that has been tendered in his case is, for the most part, internally consistent and supportive. Although I am aware of the circumspection that is urged by decisions such as R v Qutami [2001] NSWCCA 353 and Imbornone v R [2017] NSWCCA 144, I am satisfied that in the circumstances I can proceed comfortably upon what I have before me without the benefit of having had the offender in the witness box before me.

24. The statement of agreed facts is supported by a recording of the attack which brings this offender before the Court.

25. The offender and his co-offender met through friends around 2018 and discovered a similar interest in recreational drugs. On Wednesday, 18 March 2020 the offender made a phone call to his co-offender requesting that he come to his house at Ryde to assist with a task he had for him. Hrncic attended the offender’s address. There they entered the offender’s mother’s motor vehicle. The offender entered an address at Greenacre into the navigation system, and his co-offender then followed those directions till they arrived there, the residence of the victim and his family.

26. Upon arrival the offender began sending text messages from his phone. After about 5 minutes he requested that Hrncic drive to a nearby park and there he explained to Hrncic that they were to collect some “tick”, a monetary debt owed in relation to drugs. The offender said that Lim, the victim, was going to deliver $4,500 on behalf of another person who owed the offender money.

27. After about 15 minutes the offender said, “Fuck this” and made a phone call to Lim. Hrncic then drove past Lim’s house where Lim’s mother and father were alighting from their vehicle in the driveway. The offender said, “Slow down, slow down,” Hrncic did so and the offender wound down the window and took photographs of the victim’s mother and father. They then left the location.

28. Moments later the offender received a phone call from Lim and an arrangement was made to meet later that day. Hrncic then drove the offender back to his home and returned to his own home.

29. Later that evening the offender called Hrncic and told him to drive to a location in Hunters Hill to purchase knuckle dusters and knives. Hrncic drove to the rear of Vintage Cellars in Hunters Hill and met with a person to purchase a set of silver knuckle dusters and three knives for $300. One of these knives was a hunting style knife with saw teeth on the spine, the blade of 16 centimetres. This was the weapon that Hrncic carried in the ultimate attack.

30. Hrncic returned home and notified the offender that he had completed the purchase. The offender later messaged Hrncic on “Whatsapp” under the name ‘Cuzzy’ that he was going to “Put it on Lim.” A short time later the offender attended Hrncic’s home in the offender’s mother’s motor vehicle and obtained the knuckle dusters and knives. The offender said to Hrncic, “Look I’m meeting Lim right now to discuss the debt and him working for me.” The offender requested that Hrncic join him, which he agreed.

31. They both then travelled to a reserve at Hunters Hill. The offender parked the vehicle at the end of the enclosed carpark there. His clothing and that worn by Hrncic is described in the facts at para 8. Lim did not arrive at the time appointed. This caused the offender to become agitated and he said, “Fuck it, the debt is now doubled, he now owes me nine grand... I’m going to put it on Lim.”

32. Together the offenders consumed a quantity of cocaine with some pills which Hrncic believed to be Xanax and oxycodone. They continued to wait another 30 minutes and then sometime between 8.00pm and 9.00pm Lim arrived at the carpark in his red Honda Accord. He parked his vehicle next to the offenders leaving one car space between the vehicles. Lim alighted and greeted the offender who said, “You know how I told you that I wanted you to work for me,” Lim responded, “Yep you just let me know when and where and I’ll do it no problem.”

33. The offender continued to casually chat with the victim. The offender reached into one of his pockets and placed a set of silver knuckle dusters over his right fist. This weapon is the the subject of the possession charge. Lim unaware of this, continued to talk. The offender then turned and suddenly punched Lim in the face with his right fist. Lim fell to the ground. The offender said to Hrncic, “Grab the knife, grab the knife.” Hrncic retrieved the knife, he approached Lim with the knife in his hand while the offender continued to punch and kick the victim. The offender then removed his phone from his pocket and commenced to video record Lim as he lay on the ground. Lim had blood on his face; he used his hands to cover his face and protect himself. Under his neck was a pool of blood. The offender’s right hand is seen wearing knuckle dusters as well as his shoes and black pants, Hrncic’s shoes and a Gucci bag, as well as the hunting knife can also be seen. Hrncic repeatedly moved the hunting knife toward Lim’s face and body. The facts include colour images that were generated from the recording.

34. While Hrncic was moving the knife toward Lim’s face and body the following conversation occurred:

GHAMRAOUI: “What did you do you dog?”

LIM: “I fucked up. I lied. I’m sorry”.

HRNCIC: “Yeah you racked it up didn’t you?”

LIM: “No I didn’t I promise.”

HRNCIC: “Where’s the fucking money then?”

LIM: “I’ll get it to you by next week I promise.”

HRNCIC: “No, no, no next week do I look like I fucking have time for next week motherfucker. I swear to god you steal money from me.”

LIM: “When do you want it to?”

HRNCIC: “When do I want it? Fucking now.”

LIM: “I don’t have it now I’ll get it by two.”

35. The offender then used his right fist with the knuckle duster and forcefully punched the left side of Lim’s face causing a 2-centimetre wound to his left cheek. The wound began to bleed profusely. Lim, Hrncic and the offender then continued:

HRNCIC: “Two days motherfucker.”

LIM: “Please, please.”

HRNCIC: “You want to fuck around two fucking days yeah. You want to fuck around my money’s missing, my nine K is missing, you think this is a fucking joke.

GHAMRAOUI: “Who do you think I am. Why did you fuck up?”

LIM: “I’m sorry, I’m sorry, I’m sorry.”

HRNCIC: “You picked the wrong fucking cunts yeah. Come here with 80 fuckers and fucking bash ya you fucking little shit. Where’s the fuck.”

GHAMRAOUI: “Listen cuz are you going to pay or not. Keep it between me and you if there’s any snitching you’re dead and you fucking mum’s dead as well ya dog, alright?”

LIM: “I’m sorry.”

GHAMRAOUI: “Say sorry.”

LIM: “I’m sorry.”

GHAMRAOUI: “Are you going to snitch?”

LIM: “No I’m not.”

HRNCIC: (The offender puts a mobile phone screen towards Lim) and then continued, “Is this your family? Is this your fucking family? Yeah I know them, they know me.”

GHAMRAOUI: “Don’t bring this up yeah.”

HRNCIC: “You want to say look keep this clean.”

LIM: “Yeah.”

GHAMRAOUI: “This is your last chance.”

HRNCIC: “This is your last warning. The next is a fucking bullet to the house I swear to fucking god, I swear on my mother’s life I’ll fucking kill ya, I swear nine K. You want to fuck around with, you think it’s a fucking joke?”

LIM: “I’m sorry.”

HRNCIC: “You told me you’d pay 600. That’s a fucking joke you fucking piece of shit. You - smash head for 600, you’re lucky I don’t fucking stab you you fucking little shit you’re a fucking dog.”

GHAMRAOUI: “Are you going to do it or not?”

LIM: “I will, I will. My mother’s precious. Please, please don’t, please.”

HRNCIC: “I got this, I got that. You want me to come here and waste time, this is my final warning.”

GHAMRAOUI: “Shake on it.”

LIM: ... phone.

HRNCIC: “Bye yella.”

GHAMRAOUI: “Snitch your mum’s dead and your dad, your whole fuck your whole family you fucking dog. You fucking dog you’re lucky I don’t kill this cunt right now.”

LIM: “I’m really sorry.”

HRNCIC: “It’s my money. 48 hours I swear to motherfucking god I swear, I swear, I swear on my mother’s life.”

GHAMRAOUI: “Okay let’s go, let’s go.”

HRNCIC: “I’m going to fucking kill this cunt bro.”

GHAMRAOUI: “Drive home, drive home and I’m expecting my money soon.”

36. The offenders then left the scene in the offender’s mother’s car. The offender drove Hrncic to a location near his home. He removed his pants as well as his shoes and handed them to Hrncic telling him to dispose of them. Both the pants and the shoes were covered with Lim’s blood. Hrncic walked to his house and placed the blood-stained clothing into a bag with his own shoes which were also stained with Lim’s blood and left the bag in the corner of his room.

37. On Thursday, 26 March 2020 Plain Clothes Police arrested Hrncic in relation to a drug supply matter. Hrncic was driving a “No Birds” hire vehicle. The knife was located in the vehicle along with a Gucci manbag; Hrncic’s phone was also seized. The police saw a “Whatsapp” conversation with contact “Cuz” and a video recording timestamped 18 March 2020 at 11.15pm. The recording was 2 minutes and 32 seconds in length and showed part of the assault on Lim. Also located within “Whatsapp” were messages about buying knives and knuckle dusters. At 9.30pm on 18 March 2020 the offender had written, “But I’ll defs grab something because I wana put it on that Lim family”. At 2.11am on 19 March 2020 Ghamraoui messaged, “Love ya Cuzy it’s the funniest shit watching that vid cooked”.

38. On Friday, 27 March 2020 police executed a search warrant at Hrncic’s family home. They located this offender’s shoes and his fleece jogger style pants. They also found Hrncic’s shoes and noted all clothing contained large blood stains. There are images of the items seized in the statement of facts.

39. The police spoke to Lim about the incident but he was unwilling to provide a statement to police. He allowed police to take photos of his injuries, these are also depicted in the document. Police later obtained medical records of Lim from Bankstown Lidcombe Hospital. These record that he suffered the following injuries for which he received treatment:

1. 2-centimetre laceration anterior to the right ear, glued.

2. 2-centimetre laceration to his left cheek, glued.

3. Right periorbital bruising.

4. 3-centimetre laceration to the dorsal aspect of the left elbow, sutured.

40. Police obtained five photographs and four video records of the offender taken on the mobile phone which depict him wearing the clothing that they seized.

41. On Monday, 21 February 2022 police attended Ghamraoui’s residence and placed him under arrest. He declined to participate in an ERISP, as he was entitled to do and he bears no burden as a consequence of making that decision. He consented to a buccal swab; a DNA tape lift from the clothing was later found to have matched his DNA profile. The liability for his misconduct in the wounding charge is based upon him being a party to a joint criminal enterprise.

42. The following points are noteworthy in the assessment of objective seriousness and in the assessment of the offender’s moral culpability against the representations in his letters and as attributed to him in the documents tendered in his case.

43. Prior to the offences on 19 March 2020, he and his co-offender Hrncic were acquainted from about 2018 and both had a recreational interest in drugs.

44. In these offences the offender, in my assessment, performed the dominant role, marginally perhaps, in contrast to that was undertaken by Hrncic. This is evidenced by:

1. On the day of the offences at the offender’s behest Hrncic drove them in the offender’s mother’s car to the victim’s home after the offender entered the relevant information into the car navigation system.

2. At the victim’s home the offender messaged from his phone and had Hrncic drive to a nearby park where the offender explained they were there to recover the drug debt of $4,500.

3. After 15 minutes Hrncic returned to the victim’s home where the offender took a picture of the victim’s parents as they left a motor vehicle.

4. The offender arranged to meet the victim later that day.

5. Later that evening the offender instructed Hrncic to purchase the knife and knuckle dusters used against Lim and later collected the weapons. Hrncic agreed to accompany the offender to discuss the debt with Lim and have Lim work for him.

6. When Lim did not arrive after 15 minutes at the appointed location the offender became agitated and said he would increase the debt to $9,000.

7. When Lim arrived the offender engaged him in conversation during which he armed himself with the knuckle dusters from his pocket and commenced the attack.

8. The offender video recorded the attack.

9. The offender was vigorous in the verbal abuse.

10. The offender instructed Hrncic to dispose of their bloodstained clothing.

The Offender

45. The offender was born in 1997 and thus at the time of the offences was aged 22 years, to reach his 23rd birthday later that year. He is now 26 years of age.

46. His record of antecedent offences is not lengthy but includes offences of violence.

47. On 17 June 2015, for an assault occasioning actual bodily harm, he was given 9 months probation under supervision by Juvenile Justice.

48. On 28 November 2016, for an assault occasioning actual bodily harm, he was required to submit to an Intensive Corrections Order for 12 months.

49. On 15 November 2016, he was called up for breach of the probation order and ordered to perform 50 hours of community service.

50. There has been a great deal of material provided in the offender’s case included in Exhibit 1.

51. On 7 April 2020, there was a request made for an assessment of his testosterone level; the results of that are provided. They indicate that his testosterone level was low. On 4 February 2020 he underwent a home polysomnography sleep study upon which a report was provided and included in the material. This suggested severe obstructive sleep apnoea, respiratory events were associated with severe oxygen desaturation and an oxygen nadir at 56% was noted and the desaturating index recorded at 30.0/hr. It is noteworthy that the study was undertaken before the commission of the offences before me, relevant to the assessment of the offender and the explanation for his participation in this serious criminal misconduct.

52. On 25 June 2020, a further sleep study this showed a moderate obstructive sleep apnoea with associated mild oxygen desaturation and an oxygen nadir of 90% with a desaturating event index at 11.3/hr.

53. On 23 June 2021, he underwent another sleep study. This study suggested insignificant obstructive sleep apnoea associated with mild oxygen desaturation and oxygen nadir of 92% and the desaturating event index at 0.5/hr.

54. On 15 February 2022, another sleep study showed insignificant obstructive sleep apnoea associated with mild oxygen desaturation and an oxygen nadir of 91%. The desaturating event index at 1.8/hr.

55. Thus over the period of time these tests were undertaken he showed gradual improvement in that condition.

56. There is a report written on 16 June 2021 from Ryde Endocrinology. This refers to his intermittent use of anabolic steroids from the age of 18 which he stopped since the end of 2020. He had low testosterone results in mid-December. He was self-administering steroidal substances. A repeat testosterone test on 18 March 2021 showed normal levels. At the point of this report, he did not exhibit any symptoms of testosterone deficiency. He had good mood, adequate sexual performance, and satisfactory energy levels. He was working as a personal trainer then, not in a relationship, he did not smoke, occasionally drank alcohol but smoked marijuana on a daily basis. The impression recorded is low testosterone secondary to anabolic steroid use. The testosterone levels had normalised and should continue to do so now that he is not taking those substances.

57. A document from Community Cardiac Care written on 15 February 2022 records a background of depression, anxiety and PTSD, bilateral ankle surgery, OSA currently not on CPAP and previous excessive use of anabolic steroid growth hormones. His presenting problem was intermittent retrosternal and left sided chest pain. Frequency and the extent of it is there described. A management plan was organised for an echocardiogram and stress echocardiogram, and he was advised with regard to lifestyle issues, particularly his diet and the need for appropriate exercise.

58. On 23 July 2022, consultant psychiatrist Dr Hecham Alhajali wrote of the review of the offender once before in April of 2022. His presentation was consistent with a complex PTSD, substance abuse and dysfunctional personality cluster B with limited impulse control. He tended to blame his family for his own emotional dysregulation. He began psychotherapy sessions over the year to help him with anger management and emotional difficulties. There is reference to his bail conditions and curfew and his recent hospitalisation through the Emergency Department because of an accidental cut to his hand suffered in a conflict event at home.

59. He was commenced on medication to help him reduce anger and impulsivity. There is reference to flashbacks of past trauma when reminded, becoming emotional when talking about past trauma. His relationship with his family was better. He was diagnosed with complex PTSD, substance abuse and cluster B personality.

60. On 13 July 2022 until 26 July 2022, he was admitted to hospital. The discharge documents refer to him having come to the hospital after smashing his hand against a table in anger and thereby suffering a laceration. He was to be assessed due to his family’s concerns of psychosis and medication non-compliance. He spoke of difficulty controlling his emotions and emotional dysregulation, and the psychiatric history of cluster B personality, vulnerabilities, and psychological trauma is discussed.

61. He last smoked cannabis a week before and was using it sporadically at a cost of about $50 per week. A history of significant anabolic steroid use is discussed, but he said it was ceased a year before. He was intermittently using diazepam, cocaine, MDMA, GHB, and methamphetamine, again said to have been last used a year before.

62. The assessment was positive. He referred to his vulnerability to emotional dysregulation which seemed to increase with the reduction in sessions with the psychologist and he was keen to engage to take advantage of that service. The self-injury was accidental, not intentional. He was subject of discussion in a multidisciplinary meeting which led to the healthcare people concerned closing the file at that point.

63. Entry on 22 July 2022 referred to his positive response to a brief psychotherapy intervention resolving the crisis which led him to injure himself accidentally and to be taken to hospital. It is noted that the reduction of the frequency of his sessions might have contributed to his current crisis.

64. With regard to further progress, there is reference to him discussing the past trauma and his personal development. He spoke enthral with professional wrestling and in particular one wrestler who is uncharacteristically short, but who compensated for that through guile and energy. The offender felt affinity with this person. There is reference to the Perthes disease, a disorder of the ball of the hip that he had when small child, which does afflict some small children. He was unable to play any sport or engage in physical activity with other children and this impacted upon him.

65. There is reference to him having been asked to fight a rival, which was filmed and he was badly beaten. He was derided and rejected by his friends; the video went viral on social media and he was publicly shamed. There is reference elsewhere in the material to which I shall come to, to him having been beaten by three associates which was published and caused him embarrassment. This appears confusing but Mr Dalton on behalf of the offender explained there were two separate events which caused difficulty for him underpinning the development of PTSD identified by psychologists and psychiatrists upon whom he has attended.

66. To address this, he returned to the gym and began using the human growth hormones in high doses. Contemporaneously he attended clubs. He began using MDMA, cocaine, GHB, GBL, and methamphetamine regularly and this evolved into the sleep apnoea to which I earlier referred.

67. This must have had some connection with the hormone that he was using because it impacted upon his sexual function, he was exhausted all of the time, he had difficulty urinating, all of which he summarised with the representation that his body was not functioning, but he was convinced that he was well because his appearance was amazing, as he described it. Once again that is part of the history and the evolution through those dark days that took a different course once he was brought into custody and under the control of the Courts in this prosecution.

68. Dr Mark Ryan, psychiatrist, provided a report on 11 March 2023. This provides a summary of his history including the Perthes disease from the age of ten, his use of crutches for two years, the advice given that he would need a hip replacement, the differential treatment by his peers, his loss of social status and his learning difficulties causing him to struggle academically. He was bullied as a child, he suffered humiliation and felt powerless. He became reactive and physically responded on occasions. There is reference to the assault described as a vicious assault by males of his age, a traumatic and shaming event for him, the use of steroids to increase muscle mass, his overuse of the substances over years, the increased anxiety and aggression as discussed, the development of the severe obstructive sleep apnoea with severe oxygen desaturation, all of which led to the evolution of a paranoid state, hypervigilance, and his fear or belief that he was at risk of being pursued by gangs. He continued to report post-traumatic stress disorder symptoms to this doctor, related back to the assault that he suffered in 2016. He needs further ongoing psychotherapy.

69. On 18 March 2023, Dr Ryan provided a further report which continued the same information reflected in the earlier report. He is said to qualify for a range of diagnostic labels, namely ADHD, major depression, generalised anxiety, PTSD, sleep disorder, and irritable bowel syndrome. His need for a specialised program to address that last mentioned condition is noted.

70. Carlingford Medical Centre wrote on 14 April 2023. This was a referral to a Dr Nicholas Cassimatis for a follow up with regard to his ADHD conditions. Dr Cassimatis wrote on 19 April 2023 that he met the diagnosed ADHD impulsive and inattentive type, for which he prescribed medication.

71. There is a document from Core Multicultural Communities. This document is about the offender’s mother in which the author attributes to the offender’s mother various representations consistent with what is contained elsewhere in other documents in which the representations attributed are directly to the offender. I have read the document carefully, bearing in mind that it in large measure is second-hand hearsay, but the representations are consistent with what appears elsewhere in the material.

72. There is a document from a Dr A R Najjarine on 26 April 2023, referring to the Perthes disease and the symptoms that afflicted the offender as a young boy in 2008 when this doctor attended him. He was then prescribed orthotic devices, and prolotherapy injection therapy on a fortnightly basis for at least one year, and the suggestion of surgery because of the fear that the bone would breakdown. This became unnecessary because the orthotics and the injection therapy achieved positive results. In due course, his leg began to lengthen and ultimately his legs were of equal length with dramatic improvement in the hip. The doctor notes that he was suffering mentally through depression and anxiety related to that condition.

73. There is a report from Dr Jalila Haidary concerning the offender’s mother. She had been seeing her since 2017. She suffers anxiety and depression as a result of the predicament in which the offender finds himself.

74. There is a report from Canan Suucak, psychologist, written on 5 May 2023, noting one-hour consultations on 10 and 24 February 2022, 12 March 2022, 14 April 2022, 26 May 2022, 23 July 2022, 6 August 2022, 10 September 2022, 20 October 2022, 9 November 2022, 13 April 2023, 19 April 2023, 26 April 2023, and 3 May 2023.

75. His history is noted including that he was born in Australia. It is noted that he exhibited the symptoms of ADHD. There is reference to the abuse and insults he suffered from peers as a young adult and the impact it had upon him. His size and build are discussed generally. There is reference to him having implemented coping mechanisms to feel strong, reliable, and fierce, attending the gymnasium and the evolution into the bad habits which ultimately brought him into contact with criminal justice. He is said to be depressed and anxious in the severe range. He is attributed with genuinely seeking help to ensure that he does not suffer the same outcomes as he presently faces. He is attributed with shame and regret. He was provided with cognitive behavioural therapy, acceptance and commitment therapy and other strategies to assist him with the ADHD, PTSD, depression, and anxiety. He responded well. The psychologist after seeing him over that lengthy period over multiple sessions is convinced of the offender’s intention to improve and be a good citizen.

76. Marsfield Ararat Medical Centre under the hand of Dr Assadaur Ekmejian wrote on 5 May 2023 of having seen the offender first on 5 August 2003. There is reference to his childhood maladies, the development of the Perthes disease, what that involved, the beating he suffered as a teenager, the effect it had upon him, his evolution into bodybuilding to toughen up, his misuse of steroids and his involvement with bad company that led him into drug use. He is attributed with recognition of the error of his ways.

77. There is a discharge summary on 6 May 2023 after he hurt his finger. It does not seem to be anything of significance in the determination of this matter.

78. Dr Richard Furst, psychiatrist, wrote on 10 August 2023 after he assessed the offender. Dr Furst provided a summary of demographic details and psychiatric history, including his tendency to be short tempered and irritable throughout his childhood and teenage years. There is reference to him having been beaten up, his evolution into self-consciousness and avoidant behaviour and his sense of humiliation and shame. His work history is discussed, with his medical history, his drug and alcohol history, consistent with what I have drawn from other documents. There is no need for me to repeat all that I have provided, bearing in mind that Dr Furst has had access to the same documents summarised in p 6 of his report, and those outcomes and investigations.

79. He is diagnosed with PTSD and substance use disorder, namely anabolic steroids, and cannabis, against the history of emotional insecurity, avoidance, and low self-esteem as a consequence of developing Perthes disease. There is clear evidence of his maladjustment. Dr Furst discusses the beating he suffered. PTSD is discussed, and how it might be triggered by such an event. Recurrent symptoms are discussed in general terms but reflect what is attributed to the offender by the various practitioners upon whom he has attended. It is opined that it is likely that his use of steroids and obsession with bodybuilding was a maladaptive means of coping with low self-esteem, erosion of trust in others and his persistent symptoms of PTSD following the traumatic events that he suffered in 2016. There is a recommendation regarding future treatment.

80. In addition to that material in Exhibit 1, I have an array of statements and testimonials speaking to the opinions that the authors have of the offender. His paternal aunt writes of the tough life that he had growing up to adulthood and his physical and emotional suffering. He is said to be very caring and will help others when needed and she believes him to be a good man and a soft person despite his presentation.

81. His siblings provided one document; they are his sisters. They speak of the changes in his behaviour from an early age leading to the offence before the Court. They speak of his mental health deteriorating. They speak of a history of bullying and his expressions of remorse and sensitivity about his past behaviours, not wanting to be defined by his actions, and the care from which he has had the benefit earlier described.

82. His family includes a grandparent and an aunt who write of their experience of him as he grew from childhood, how he evolved with apparent mental illness arising from bullying, his resort to the gymnasium and bodybuilding and the misuse of steroids. They attribute him with remorse and recognition of the wronging upon which he engaged.

83. There is a document here from his aunt or uncle, it is difficult to say, but this person writes of him having attended many doctors’ appointments through his life, his presentation from the Perthes disease this person observed, the anxiety and depression, and obsession with image and body structure.

84. There are the opinions of an aunt and uncle I believe in a joint document, again confirming these challenges in life and their opinion of him. There is a document here from his brother-in-law who has known him for 17 years. He is attributed with distress over his past behaviour and the steps taken to obtain professional help to cope with his underlying difficulties.

85. His father writes of his knowledge of the challenges faced by his son, and his need for medication to cope with the conditions that are now identified. He writes that he is doing his best to get well and to address the wrongdoing; he has demonstrated remorse and regret.

86. He attended the Lebanese Arabic School from 2002 to 2009. A document from that organisation on 4 May 2023 records his anxiety and his presentation as an active and defensive young boy. He was often disruptive and aggressive. He had difficulty attending tasks. All consistent with the ADHD that was later diagnosed.

45. I have documents written by the offender, one to the Court, one to the victim. He would have liked the opportunity to face his victim to express his regret for what he has done, but that is not available to him. He expresses a sense of guilt. I accept what he has written in terms of his regret, remorse, and acknowledgement of wrongdoing.

Submissions

88. I have the benefit of submissions from counsel on behalf of the offender and the Crown Advocate. They were addressed orally today. The histories attributed to the offender and the medical assessments I indicated to counsel did not sit as entirely consistent with what was contained in the testimonials. Having referred to each of the documents in turn I have come to a slightly different view. There are differences. The behaviour was appalling on the night that he committed these offences and if one takes that alone and compares it with the positive representations made regarding him by his family and friends, it is difficult to assimilate one with the other.

89. However, when one reads in those documents, those testimonials, the references to the challenges in life, one can see consistency between the testimonials and the documents provided by the healthcare professionals.    On balance the comparisons available support the finding that I have come to and which I will express in due course, that he has reached a point in life where he is appropriately remorseful, recognises the harm that he has done, and has very strong prospects for rehabilitation.

90. Accepting the proposition that because of his adverse self-perception and the trauma from the fight and a separate event in which he was attacked, it is still the case that to a significant extent he chose the lifestyle that included bodybuilding with steroids to assist in the development of muscle mass, thereafter or perhaps coincidentally resorted to various prohibited drugs, all leading to the health issues the subject of the reports published before and after the offences. The latter reports were written in historical terms but were also upon assessments made contemporaneously, which indicated a change in direction that was evolving up to the present time. I have not overlooked the assessments depend upon the truth and accuracy of what he had to say to those who heard those representations, but having looked at the material closely, twice now in preparation for today and in the course of this judgment, I accept that what he has had to say over time to those who have recorded their opinions is to be accepted as truthful and accurate.

91. I note that before the offence he was assessed for sleep apnoea which continued until 15 February 2022 when insignificant obstructive sleep apnoea was identified, showing the gradual improvement up till that point. Dr Ryan, the psychiatrist however, wrote of continuing sleep disruption in his report of 18 March 2023, which he attributed to an array of symptoms and underlying problems, not including it appears, the effect of the anabolic steroids that he had been taking.

92. His negative self-perception appears to have evolved against a history of ADHD, events that were, I find, traumatic to him, namely his participation in a fight which he lost, with the embarrassment and shame of publication of the record of that event on social media, a separate event in which he was attacked by three peers, which I understand also found its way into social media, his interest in the diminutive professional wrestler and his resort to bodybuilding with the aid of steroids and then the poly substance misuse upon which he engaged. The representations attributed to him regarding past trauma, said to underpin the diagnosis of PTSD, extend from the description of his apparent willing participation in a fight and then the subsequent separate event where he was attacked by three acquaintances. Those events are not described in any detail, but I take as fact that they occurred in the terms described.

93. If it be the case, which I accept, that these features contributed to the offences for which he is to be sentenced, considered in the light of the agreed statement of facts, the contribution could not have been great but at least left him less constrained in his behaviour when he decided to pursue his remedy against the victim with the forceful use of the weaponry that he had Hrncic acquire for them. I find this to be the case considering the extent to which the confrontation was premediated, including the purpose of the confrontation, the acquisition of the weapons, the images captured of the victim’s parents, and the vigour of the attack which was recorded and later discussed with apparent attendant mirth. Because of his reported ongoing symptoms, it is on balance likely that he will need ongoing care in the custodial component of his sentence and beyond supporting my finding of special circumstances.

The Co-Offender

94. I sentenced the co-offender in the wounding offence, Dorian Denny Hrncic, upon comparable agreed facts on 1 August 2022; R v Hrncic [2022] NSWDC 455. He was charged with reckless wounding in company with this offender, contrary to s 35(3) Crimes Act 1900 and one off offence of supply more than the indictable but less than the commercial quantity of a prohibited drug, namely cocaine, contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (NSW), the maximum penalty imprisonment for 15 years and a fine of 2,000 penalty units, and the supply of another prohibited drug, contrary to the same provisions with the same maximum penalty, namely 3-4, methylenedioxymethamphetamine in more than the indictable and less than the commercial quantity.

95. Additional offences were considered in the assessment of sentence.

96. First, for the offence of reckless wounding the offence to be considered was possession of a knife in a public place without reasonable excuse, contrary to s 11C(1) Summary Offences Act 1988 (NSW), with a maximum penalty of imprisonment for two years and a fine of 20 penalty units.

97. Secondly, the offence of supply cocaine, dealing with property suspected to be the proceeds of crime $780, contrary to s 193C(2) Crimes Act 1900, and thirdly for the offence of supply methylenedioxymethamphetamine, dealing with $8,750 suspected to be the proceeds of crime, contrary to s 193C(2) Crimes Act 1900. The maximum penalty specified for that offence upon indictment is imprisonment for three years, but in the Local Court the jurisdiction is limited two years imprisonment and a fine represented by 50 penalty units.

98. There were related offences before me pursuant to s 166 Criminal Procedure Act 1986; possessing cannabis, contrary to s 10(1) Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for two years and a fine represented by 20 penalty units, and possessing human growth hormone, contrary to s 16(1) Poisons and Therapeutic Goods Act 1966 (NSW) for which the maximum penalty is imprisonment for six months and a fine represented by 20 penalty units. For those offences I applied s 10A Crimes (Sentencing Procedure) Act 1999 and upon conviction imposed no penalty.

99. I determined sentence with consideration of the additional offences on two Form 1 documents.

100. For the offence of reckless wounding with a combined discount of 50%, I specified an indicative sentence with a non-parole period of 1 year and 6 months and head sentence of 3 years. For the offence of supply prohibited drug in respect of cocaine and applying the combined discount of 50%, I specified a sentence of imprisonment for 3 years and for the offence of supply prohibited drug in respect of the MDMA which was without a Form 1, applying a discount of 50% I specified a sentence of imprisonment for 2 years and 6 months.

101. The discount applied to those indicative sentences were significant but involved considerations to which s 23 Crimes (Sentencing Procedure) Act 1999 was relevant. In addition to the published judgment there is a confidential judgment which is not for further publication, explaining how those discounts were reached.

102. Pursuant to s 53A Crimes (Sentencing Procedure) Act 1999, I specified an aggregate head sentence of 3 years and 6 months with a non-parole period of 2 years commencing on 31 July 2022, expiring on 30 July 2024, the head sentence of 3 years and 6 months expiring on 30 January 2026. I found special circumstances in the offender’s youth. This was his first time in custody, more onerous by reason of matters including the impact of COVID-19, his strong prospects of rehabilitation, and the opportunity of a longer period on parole to provide for him to build upon progress already made.

103. Hrncic gave evidence followed by his father. His mother was present in Court to support him but outside of the courtroom because of her distress. The features of his case included:

1. He was from parents of good character, and standing and respect in their community. That is so in this case as well.

2. I did not accept the argument advanced on his behalf that he was the subject of non-exculpatory duress at the hands of or at the instance of the offender, but I accepted that upon the material presented, my assessment of the recording of the event and the content of the agreed facts, that he was operating under the influence of this offence. I accepted that he was in a subordinate role to the offender and engaged under the influence of the co-offender to some extent.

3. The exchanges between Hrncic and the offender put before me indicated an ongoing working relationship in which they were engaged upon the supply of drugs. I accepted that this offender was the principal and that Hrncic’s participation was the product of his misuse of drugs, indebtedness to the offender and that he felt some obligation to assist in the activities to comply with the requirements he might have had.

4. However when arrested, and had ample opportunity to do so, he did not expose the facts given in evidence. He was at that point in a position to get help if he were under the influence of duress to the extent that he would urge the Court to find. He chose not to do so.

5. His relationships with his family fractured from his misuse of drugs but since the arrest they were restored and he had their strong support.

6. Until his participation in the activities leading to his prosecution he had been a person of good character, with all the promise of someone who would succeed in a professional career but fell under the spell of illicit drugs. He could not blame difficult former years with poor upbringing to explain why he chose the course that he did. His decision was a lifestyle choice and thus he faced the consequences of a gaol sentence.

7. He had the support of psychiatric and psychological assessments upon referral from his general medical practitioner, had ceased the use of drugs and enjoyed improved health as a result.

The Recusal Question

104. As the day for this determination approached the offender’s counsel sent an email to my chambers reminding me of the decision in R v Reid [2004] NSWCCA 301, not in support of an application for recusal but to ensure that I did not overlook my obligation to approach the task at hand with appropriate objectivity.

105. Spigelman CJ with whom the other members of the Court agreed, advanced the following propositions in response to an application to appeal from the decision of a Judge at first instance not to recuse himself from hearing sentencing proceedings after he had sentenced a co-offender. His Honour set out certain remarks made by the sentencing Judge in the course of the earlier proceedings and continued:

“His Honour’s judgment in the parts I have emphasised from para [4] and para [53] indicate an awareness on his part, at the time of sentencing Ms Ward, that his Honour was proceeding on a basis of an assumed and agreed set of facts, rather than on the basis that he made independent findings of fact based on contested proceedings.”

106. The findings of the Judge at first instance were on the basis of evidence which was neither contested nor contradicted.

107. In Livesey v New South Wales Bar Association of New South Wales [1983] 151 CLR 288 the High Court said at 293-294:

The principle is that a Judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involve in it.

108. The Chief Justice continued with further discussion of counsel’s submissions in Reid at para 23 through to 27:

23 Mr Dalton, in his submissions, placed emphasis on the findings of fact and credit about Ms Ward, and particularly those findings that may be seen – whether they do or not is a matter for the sentencing judge – as affecting the applicant’s level of criminality, particularly regarding the alleged threats by the Applicant towards Ms Ward. Mr Dalton also submitted that these matters became part of his Honour’s published findings and that an independent observer may find some grounds for doubting the independence and impartiality of Justice Hulme from the very fact that they were published findings. Further, such findings may have at least a subconscious effect on his Honour when his Honour comes to sentence the Applicant.

24 Mr Dalton placed particular emphasis on a statement which went beyond the recognition of the agreed facts in the present case, in which Justice Hulme did, from his own observations, draw the conclusion that Ms Ward “seemed genuine”. With respect to this matter, the reference “seemed genuine” is hardly a ringing endorsement of Ms Ward’s credit, and in any event, it is offset by a number of findings that his Honour made at various times during his reasons to the effect that he found Ms Ward had lied in statements she had made over the period. An independent, reasonable observer would be aware of his Honour’s findings in that respect.

25 In my view, Justice Hulme’s conclusion was correct. In large measure the findings were based on agreed facts that were put before him. If those issues are to be contested in future sentencing proceedings involving the Applicant, then this experienced trial judge will have no difficulty in proceeding on the basis only of the evidence in the case before him. This is a matter which judges often have to do, and indeed, direct juries from time to time that they have to do, namely, decide the case only on the evidence before the Court in the particular proceedings.

26 A sentencing judge is well able to distinguish the evidence, particularly in the form of an agreed statement of facts, in one sentencing proceeding, and put both those facts and his judgment contained in the remarks on sentence in the prior proceedings out of his or her mind, for the purpose of the subsequent proceedings. A reasonable, independent observer would understand that judicial training does enable that to occur and would not call in question in any manner the proposition that that sentencing judge would bring an impartial and unprejudiced mind to the second sentencing decision making process.

27 I make these observations in the light of the well-known principle that, by reason of issues of parity, it is highly desirable that co-offenders should be sentenced by the same sentencing judge. It often occurs, if there is a time gap between the two sentencing exercises, that it is necessary that the sentencing judge put out of his or her mind the findings of fact made in the first of those sentencing exercises.

109. His Honour the Chief Justice made the point that a sentencing Judge experienced in the task is well able to distinguish evidence, particularly in the form of an agreed statement of facts in the sentencing proceeding and those in other proceedings which should be put from his mind. His Honour also noted the well-known principle that by reasons of issues of parity it is highly desirable that the same sentencing Judge should sentence a co-offender.

110. Bearing in mind the principles for which this authority stands, I indicated in response to counsel that I was not presently minded to recuse myself but would hear an application that I should do so when the matter returned to me. Counsel indicated that this was not intended and that his communication was in case I had not had the time to review my judgment in R v Hrncic ibid.

111. I pause to express my appreciation for this, for it was the case that I had not had the time to review my judgment in that matter. It was the case that unlike this present matter I was called upon to consider agreed facts, but also to weigh the defence position that Hrncic was subject on exculpatory duress, to be the subject of evidence from the offender and his father in those proceedings which required my assessment of their credibility and accuracy. I am not called upon to find additional facts in the present matter to those which are before me by way of the agreed statement.

112. As often occurs in the case of multiple offenders, a Court must decide the individual case with regard to evidence relevant to it. The assessment of the offender’s behaviour and his moral culpability is made upon the evidence adduced in these proceedings and the material before me in R v Hrncic ibid has no relevance other than for the assessment of parity and the application of that principle to obviate the risk of any sense of grievance in either of the offenders in the ultimate determination of their proceedings.

Consideration

113. The objective seriousness and moral culpability questions are assessed upon the agreed statement of facts and the relevant portions of the documents tendered in the defence case with representations agreed to by the offender, assisted by the submissions made on behalf of the Crown and by counsel.

114. As I indicated upon this material the offences are above mid-range of objective seriousness. It does not follow, however, that upon an arithmetical formula one determines a sentence of imprisonment and a non-parole period for the standard non-parole period offence according to the findings of objective seriousness. The decision turns upon the synthesis of all material, objective and subjective, including that this offender has a modest antecedent criminal history for offences of violence, which though relevant does not increase the properly proportionate sentence or the objective seriousness of the offences, but informs the assessment of the need for community protection and prospects for the offender’s rehabilitation.

115. On balance, I accept that the offender had challenges in his youth and the negative experiences from which he sought self-esteem through bodybuilding and the misuse of steroids and thereafter or coincidentally added to his burdens with the choice to use prohibited drugs with peers, which is the background of his attack with Hrncic upon the victim to recover a drug debt. I accept that this is his background and that it provides modest comfort to the offender in the assessment of moral culpability.

116. The use of weapons by each of the participants is an aggravating factor. The duration of the attack was relatively short, 2 minutes and about 30 seconds, but there can be no view other than the victim would have experienced substantial fear from this attack in addition to the wounds that were inflicted upon him. So much is patent from the recording. The fact that they were in company and that the incident involved wounding are matters that are elements of the offence and cannot be considered in aggravation.

117. I should note that I have seen the recording on at least two occasions, perhaps three, and it is confronting.

118. The possession of a prohibited weapon required for the purpose of the attack at the behest of the offender and used in the attack is above mid-range of objective seriousness. It was used to inflict one of the wounds at least suffered by the victim when the offender punched him in the face with it which is relevant to the assessment of the sentence for its possession, with care given not to breach the principle from the decision in R v De Simoni [1981] 147 CLR 383 by punishing him in that sentence for the infliction of the wounding. The offender must not be punished twice, first for the reckless wounding by the weapon and secondly, for such use of the weapon in the course of his possession of it.

113. It is appropriate though to bring to bear that the weapon was acquired for an offensive use, the evidence of which is that it was in fact so used, with the indicative sentence for each offence partly concurrent and partly accumulated to arrive at an aggregate sentence to reflect the totality of the misconduct without double counting and without increasing the sentencing identified for the possession of the weapon in fact used.

114. I accept that the offender has progressed toward rehabilitation with the copious evidence of his efforts with assistance from various healthcare services accessed. With the support of his family, which I accept, there are good prospects for rehabilitation.

115. I am satisfied that s 5 Crimes (Sentencing Procedure) Act 1999 has been crossed in this matter and that no sentence other than imprisonment is appropriate.

116. I have brought to account the purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act 1999.

117. The conduct requires appropriate punishment and relevant is the need for general and specific deterrence. The conduct must be denounced because it was deplorable. There must be recognition of harm to the victim and the community.

118. It is regrettable but unavoidable that the custodial environment will inevitably have some detrimental effect upon the offender’s efforts towards rehabilitation. This in my experience tends to be so in all matters. He will need to find the strength to cope with what is about to befall him. I have brought to account what is now recognised as difficulty in custody because of the COVID-19 epidemic. I note what the Crown has said in that regard that there has been some amelioration of that problem in recent times, but it is still a factor that must be brought to bear, considering that people in custody are in close proximity and if an infection does take hold it is likely to spread, subject to the benefits of vaccination if they have been availed of.

119. I accept that there are special circumstances requiring a substantial decrease in the custodial component of the sentence from the statutory ratio of s 44 of the Crimes (Sentencing Procedure) Act 1999. I find special circumstances in the relative youth of the offender. I note what the Crown said about the distinction between maturity and youth that ought to be brought to account but bearing in mind the opinions given by the psychologists and psychiatrists, I am satisfied that the youth is a significant factor in the consideration of sentence.

120. This is his first custodial sentence and there are such prospects of rehabilitation that he and the community would be better served with a longer period of parole in which to further his endeavours. In this regard I have also brought to account the added burden of ongoing health challenges that will require management in custody and beyond.

121. I note the injuries suffered by the victim in the attack, the degree of violence involved, the use of a weapon by each of the offenders, including a fearsome looking knife wielded by the co-offender. This was not an unplanned event. The violence was intended. It was to recover a drug debt. The agreed statement includes communications between the offender and his co-offender discussing being armed when they confronted their victim later that night. The recording reveals the extent to which both offenders participated in this event. This type of behaviour to enforce an unpaid debt is a matter of significant concern. It requires appropriate punishment enlivening both general and specific deterrence considerations. As I have said the purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act 1999 are all engaged in this case.

122. The offender ought to be commended for the progress he has made and I hope he will continue along the path, but the misconduct requires adequate punishment and as I noted general deterrence has its role to play to discourage others. I accept there is a need to protect the community from the offender, but it is significantly ameliorated in this case. I accept his prospects for rehabilitation are sound. I accept that he has accepted responsibility for his actions and that he is now accountable for what he has done, and his conduct must be denounced with recognition of harm to the victim and the community.

The Sentence

129. The offender is convicted of the offence of reckless wounding. For this I specify as appropriate a sentence of 5 years and 4 months. I have applied to the starting point the discount of 10% with a further reduction to reflect the sentence in terms of years and months. I specify a non-parole period of 2 years which I must do because it is a standard non-parole period offence.

130. The offender is convicted of the offence of possession of the weapon. For this offence I specify as appropriate a sentence of 1 year and 10 months. The maximum penalty of 14 years is the proper benchmark. The starting point is above the jurisdictional limit which would be exceeded even upon the application of the discount of 25%, if my calculation has been correct.

131. The result is that the sentence will be reduced to imprisonment for the period of 1 year and 10 months to reflect the jurisdictional limit. I have not overlooked that the charge might have been determined in a strictly summary proceeding in the Local Court.

132. Pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 I sentence the offender to an aggregate sentence comprising a non-parole period of 2 years and 9 months with a head sentence of 5 years and 8 months.

133. The sentence I impose I express in the following terms: a non-parole period from 8 February 2023 to 7 November 2025 with balance of the sentence to be served on parole until 7 October 2028.

134. I explained to the offender the sentence taken to have commenced on 8 February 2023 with eligibility for parole on 7 November 2025, to which he would be subject until 7 October 2028.

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Decision last updated: 16 February 2024