R v Gordon

[2019] NSWDC 528

District Court

New South Wales

Medium Neutral Citation:	R v Gordon [2019] NSWDC 528
Hearing dates:	17 June 2019
Date of orders:	19 June 2019
Decision date:	19 June 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraphs [57] to [65]
Catchwords:	CRIME — Apprehended violence orders — breach apprehended violence order CRIME — Domestic violence — Stalking or intimidation CRIME — Property offences — Destroying or damaging property CRIME — Violent offences — Wound with intent SENTENCING — Relevant factors on sentence — Objective seriousness — degree of planning — causative connection between an offender's mental health and the commission of an offence SENTENCING — Sentencing procedure — Agreed facts — Disputed facts — Rejection of evidence SENTENCING — Subjective considerations on sentence — Age of offender
Legislation Cited:	Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bullock v The Queen [2016] NSWCCA 131 DPP v De La Rosa (2010) 79 NSWLR 1 Lawson v The Queen [2018] NSWCCA 215 Muldrock v The Queen (2011) 244 CLR 120
Category:	Sentence
Parties:	Director of Public Prosecutions (DPP) Carson Gordon (Offender)
Representation:	Counsel: J Jiang (Offender)   Solicitors: C Hurford (DPP)
File Number(s):	2016/00379019

SENTENCE

1. HIS HONOUR: The offender pleaded guilty to the following offences on an indictment: that on 17 December 2016 at Glenwood he intentionally damaged property namely a silver coloured Volvo sedan being the property of Mr Timothy Glasson. That is an offence under s 195(1)(a) of the Crimes Act and with a maximum penalty of five years imprisonment. There is a further offence that on the same date and place he intimidated Ms Rosie MacIntyre with the intention of causing her to fear physical or mental harm. That is an offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act and has a maximum penalty of five years imprisonment.  There is a further offence that on the same date and place he wounded Mr Timothy Glasson with intent to cause him grievous bodily harm.  That is an offence under s 33(1)(a) of the Crimes Act and has a maximum penalty of 25 years imprisonment, and there is an applicable standard non‑parole period of seven years.

2. When sentencing him for the wounding with intent offence the offender acknowledges his guilt and asks that I take into account a further offence on a Form 1 being an offence that on 15 December 2016 at Schofields he intimidated Mr Timothy Glasson with the intention of causing him to fear physical or mental harm.  There is also another offence on the Form 1 being an intentional damage offence concerning Mr Glasson's vehicle that occurred on 15 December 2016.  There is also an offence on a s 166 certificate of breaching an Apprehended Domestic Violence Order.

Facts

3. In the main the facts are agreed, however, there was a dispute in the sentence proceedings before me earlier this week about how it was that the wounding to Mr Glasson occurred.  I will come to my resolution of the dispute in the facts once I have indicated what I have relied upon from the agreed facts leading up to the actual infliction of injury.  The charges being the matters on the Form 1 and the matters on the indictment arise out of the breakdown of the offender's relationship with one of the victims, Ms MacIntyre.  She was someone that he had been in a relationship with.  In around October 2016 he started becoming angry and more possessive and the arguing became more frequent.  Around the same time Ms MacIntyre began spending time with Mr Glasson who had met the offender about three months before the offences.  In early December 2016 Ms MacIntyre had ended the relationship with the offender and the offender did not take the ending of the relationship well.  He was unhappy that Ms MacIntyre and Mr Glasson began spending time together and in mid 2016 they started a relationship according to the background facts.

4. Late on the afternoon of 11 December 2016 Mr Glasson visited Ms MacIntyre at her home, parked his car at the front of the house and shortly after arriving the offender rang Mr Glasson a number of times.  There were then some text messages exchanged.  There were some calls and text messages from the offender on 12 December 2016 to Ms MacIntyre who ended up blocking him in terms of being someone who she would take calls from on her phone.  About 9.30pm that evening Mr Glasson went to Ms MacIntyre's house.  The offender had been trying to call him and eventually he answered one of the calls.  He was asked whether he was still at Ms MacIntyre's place and clearly the offender had been carrying out some surveillance, if I can use that term, of Ms MacIntyre's home.

5. In terms of the Form 1 offences, at about 6.30pm on 15 December 2016 Mr Glasson visited Ms MacIntyre at her home.  They were there for several hours.  Mr Glasson started to receive a number of phone calls from the offender which he ignored.  They started at around 9.40pm and there were 23 missed calls up until 10.56pm that night.  Shortly after Mr Glasson started to receive the calls, Ms MacIntyre spoke to her mother.  She did this because she was worried the offender was outside the house and that she was scared about what would happen.  As a result of this conversation, Ms MacIntyre's mother went outside.  She saw the offender and spoke to him.  She told him repeatedly to leave before she returned to the house.  He apologised to her and started to walk away and a short time later he was banging on the garage door screaming obscenities towards Mr Glasson.  He then threatened to hurt Mr Glasson and damage his car if he did not come out and speak to him and Mr Glasson, no doubt wisely, remained inside.

6. A short time later Mr Glasson heard a number of loud bangs which came from the front of the house where his car was parked ‑ it is silver Volvo car.  The offender had been kicking his car.  Mrs MacIntyre, the mother, went outside to see what had been going on.  She saw that the car had been damaged and called the police.  They observed the damage to the vehicle.  Mr Glasson stayed with Ms MacIntyre that evening. When he checked his phone after the incident there were further text messages of a threatening nature from the offender.  There was some damage sustained to the driver's side doors and damage to the rear quarter panel fuel tank which constitutes the matter on the Form 1 in terms of the intentional damage charge.

7. Later that evening the police applied for and were granted an interim Apprehended Domestic Violence Order in favour of Ms MacIntyre.  That was served on the offender at about 1.30am on 16 December 2016.  Apart from what might be termed the standard conditions there was a condition that he not approach her or contact her in any way unless through a lawyer and that he was not to go within 200 metres of any place where she lived or worked including her home address.

8. The following morning, 16 December ‑ Mr Glasson received a phone call from the offender about 10am asking why he was still at Ms MacIntyre's home.  Mr Glasson went home, spoke to his father about what had occurred, who went round spoke to the offender.  Throughout the 16 December 2016 the offender and Mr Glasson exchanged a number of text messages and Facebook messages, many of which have been placed before me.  There are extracts of them in the facts, clearly they show the offender being abusive in his terms towards Mr Glasson, and in essence threatening him.

9. The offender drank a considerable amount of alcohol during the evening of 16 December 2016.  Later on the night of that date Ms MacIntyre had had a fight with her mother so she arranged to meet up with Mr Glasson and go back to his house.  Mr Glasson was to collect her from an alleyway near her home.  They arranged to meet there because they were concerned that the offender had been watching the house.

10. When Ms MacIntyre came out to Mr Glasson's motor vehicle they drove down various streets which are referred to in the facts and Mr Glasson noticed a car was following them very closely.  That car was of course the offender who put his lights on high beam and tailgated Mr Glasson's vehicle, according to the facts. As they approached the intersection on Glenwood Park Drive and Shaun Street the offender pulled out into the opposing line and drove on the wrong side of the road.  He sped up and pulled up alongside Mr Glasson.

11. When the offender pulled alongside he was yelling and swearing at the victims telling them to pull over and he was threatening to hurt Mr Glasson.  At one stage the offender entered the opposing line and again drove up beside Mr Glasson.  There were trucks parked on the left side of the road.  The offender began to overtake him.  As he got in front of Mr Glasson he manoeuvred the front of his car into the front of Mr Glasson's car in an attempt to force him to pull over.  Mr Glasson slammed on his brakes and put the car into reverse.  He then attempted to reverse away from the offender.  The offender's vehicle's reverse lights came on and he reversed into Mr Glasson's car which was then wedged between the offender's car and one of the trucks which was parked on the side of the road.

12. Understandably Mr Glasson and Ms MacIntyre were scared about what the offender was doing.  Mr Glasson locked the doors and Ms MacIntyre called emergency services.  She remained on the phone to an emergency service operator throughout the incident.  Shortly after the collision the offender got out of his car, walked up to the driver's side window of Mr Glasson's car.  He was screaming at Mr Glasson and Ms MacIntyre but they could not really understand what he was saying.  He repeatedly punched the driver's side Window; when it did not break he returned to his car and grabbed a four pronged tyre iron from the boot of his car and began to bash the driver's side window until it eventually shattered.

13. Those facts are agreed facts and then there are disputed facts between the parties in terms of primarily in relation to how the wounds to Mr Glasson's forehead, nose and forearm were inflicted.  In resolving that dispute I record that the onus is on the Crown to establish any facts adverse to the offender beyond reasonable doubt.  On the issue of the disputed facts, I heard from the victim, Mr Glasson, and from the offender.

14. I found Mr Glasson to be a very straightforward witness who appeared to be genuinely trying to recall the events of two and a half years ago.  Of course those events for him were unexpected, terrifying and happened very quickly, which common sense suggests would impact upon someone's ability to give a complete account of what had occurred.  His evidence was that after the offender had in effect ran him off the road and rammed his vehicle, the offender retrieved a tyre iron from the boot of his car when Mr Glasson refused to get out of his vehicle.  His evidence was that the offender swung the tyre iron at the car's window until it was damaged and then swung the tyre iron at him; that initially he put his arms up to protect himself and was struck on the forearm. There is a photograph before me showing that injury.

15. He said the offender struck him three times with the tyre iron, once to the forearm, once to the forehead and once to the nose.  He demonstrated how that occurred while giving evidence.  He said he was struck with the tyre iron while he sat in the driver's seat and was then punched to the face a number of times by the offender.  He described that he felt blood run from his nose and forehead prior to being punched to the face by the offender.  He was cross‑examined about how it was that he received the injuries to his forearm, nose and forehead.

16. He accepted in cross‑examination that in terms of his forearm, that injury occurred when the offender smashed the window with the tyre iron and that it followed through and hit his forearm while he was trying to protect himself.  He denied that the injury to his forehead occurred when the offender was using the tyre iron in a jabbing motion to knock out more glass from the window.  He denied that the injury to his nose was caused by punching rather than by being hit with the tyre iron.

17. I note that there is no suggestion Mr Glasson was affected by alcohol or drugs that night which might have impeded his perception about what was occurring.  Clearly it is obvious that a person can tell the difference between being struck with a fist and being struck with a tyre iron.  I found Mr Glasson to be a compelling witness and his evidence is supported by the overall circumstances that were occurring that night.

18. The offender gave evidence and accepted that he was very angry that night when he approached Mr Glasson's vehicle.  He said that if Mr Glasson had gotten out of the vehicle he intended to punch him.  He agreed when Mr Glasson did not get out of the vehicle he retrieved the tyre iron from his own vehicle.  He gave evidence that when he first struck the driver's side window with the tyre iron it continued through the window and struck Mr Glasson's arm.

19. His evidence was that he then jabbed the tyre iron through the window to knock out some glass and that it came into contact with Mr Glasson's forehead, one assumes by way of accident.  His evidence was that he then threw the tyre iron onto the ground and punched Mr Glasson a number of times through the window causing him to bleed from the nose and mouth.  He denied deliberately striking at Mr Glasson three times with the tyre iron with the intent to cause grievous bodily harm.  His counsel put to me that the intent to cause grievous bodily harm only related to the punching of Mr Glasson.

20. I do not accept the account given by the offender.  On his own evidence and based on what he told the psychologist whose report I will shortly discuss, he had consumed an enormous amount of alcohol and cannabis prior to the incident with Mr Glasson that evening.  No doubt those substances would impact upon his ability to accurately recall what occurred that night, and they would have clearly affected his perception of what was occurring.

21. I note also that when interviewed by the police he essentially said he had no real memory of what had occurred after a certain point prior to any injury being occasioned to Mr Glasson.  The account he gave to the police is fundamentally different to the account he gave in the witness box.

22. Having rejected the offender's account it is a question of whether I can accept Mr Glasson's account beyond reasonable doubt.  For the reasons I gave earlier, I found him to be a compelling witness and he is generally supported by the photographs and surrounding circumstances.

23. I find beyond reasonable doubt that the offender struck the victim Mr Glasson three times with the tyre iron and he did so with intent to cause grievous bodily harm.

24. There is a victim impact statement from Mr Glasson.  Clearly, and understandably, the incident has had a significant impact upon him. 

Assessment of Objective Seriousness of Offending

25. I turn then to my assessment of the objective seriousness of the offences.  All three substantive offences are serious examples of their type.  There was, in my view, no significant planning and the offences resulted from an excessive, somewhat impulsive, reaction to what the offender wrongly perceived was conduct deserving of retribution.

26. In saying that there was no significant planning, I have no doubt that the offender was deliberately monitoring Ms MacIntyre's premises to see if Mr Glasson was in attendance there.  In that sense this was no chance encounter.

27. I have also not overlooked the terms of the text messages the offender had sent to the victim prior to the incident.  I also have no doubt that Mr Glasson and Ms MacIntyre would have been terrified during the terrible ordeal that they suffered at the hands of the offender.  The damage to the car was very significant resulting in it being written off.

28. The intimidation of Ms MacIntyre was also at a high level and can be seen as a domestic violence offence.  Wounding with intent to cause grievous bodily harm is always a serious offence.  Here, fortunately, the wounds and other injuries Mr Glasson suffered were not life threatening although he is left with some scarring which is still visible.  I note though that a weapon was used to commit the wounding which is an aggravating factor.

29. In relation to this sentencing, there is an issue as to whether or not the offender's mental health contributed in a material way to the commission of the offences.  In this State if there is a causative connection between an offender's mental health and the commission of an offence it is relevant to an assessment of the objective seriousness of an offence, see Lawson v The Queen [2018] NSWCCA 215 by way of example.

30. I propose to review the psychological material that is before me in considering that issue.  The evidence before me satisfies me that from a young age the offender has had psychological problems.

31. In a report prepared by Stephanie Figg, a clinical psychologist, in February 2001 when the offender was five years and 6 months it was recorded that he met the diagnostic criteria for separation anxiety disorder early onset.  The symptoms recorded then included in terms of his separation from his parents when attending school, extreme anger with lashing out and deliberate destruction of school property.  In 2003 Ms Figg noted that the offender's separation anxiety as it related to being separated from his parents was worsening.  He was taking longer to calm down and some days did not calm down at all.  The revised behavioural management plan was devised at Macquarie University's anxiety clinic.

32. In 2005 the offender was diagnosed with what is termed Irlen syndrome being a perceptual dysfunction in the form of dyslexia affecting how the brain interprets the message it receives from the printed page and the environment.  That particular condition appears to have played no part in the current offending.  There is also before me a report dated 10 June 2019 by Susan Hawil, a registered psychologist.  It is based upon a two hour interview with the offender together with an assessment of documentary material that is before me, including the psychological reports from his childhood.

33. While not a psychiatrist, Ms Hawil considered that the offender met the criteria for the diagnosis of borderline personality disorder.  The psychologist considered that his personality disorder may have contributed to the commission of the offences.  Based on the account of the offender, the psychologist considered that his separation disorder appears to have continued into adolescence and adulthood.  The psychologist records that a personality assessment test was administered to him and his responses indicated a marked potential for problems with anger control.  She was of the opinion that he is chronically angry and "has a high potential to express anger and hostility" through both verbal and physical means.  Results of psychological testing administered to the offender indicated a marked potential for problems with "acting out".  He was said to be very likely to be impulsive, sensation seeking and reckless and to have a disregard for convention and authority.

34. The offences on 17 December 2016 are indicative of a complete loss of self‑control, in terms of anger management by the offender, as a consequence of the end of his relationship with Ms MacIntyre and the offender's realisation that she was engaging in a close friendship or relationship with Mr Glasson.  The offences that day can also in my opinion be seen to have been to some degree impulsive.

35. On balance, I am satisfied that there is a causal connection between his mental health and the commission of the offences given the nature of his separation anxiety disorder which he has suffered from since he was a young boy.  It is difficult to assess the degree of the causal connection because of his consumption of significant quantities of alcohol and cannabis in the period leading up to the offences.  The principles concerning the relevance of a mental health condition to sentencing are well known and they were helpfully summarised in DPP v De La Rosa (2010) 79 NSWLR 1.

25. Where the state of a person's mental health contributes to the commission of the offence in a material way the offender's moral culpability may be reduced.  Consequently the need to denounce the crime may be reduced with a reduction in the sentence.  It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction of the sentence which would otherwise have been imposed.  It may mean that a custodial sentence may weigh more heavily on the person because the sentence will be more onerous for that person, and the length of the prison term or the conditions under which it is served may be reduced.  It may reduce or eliminate the significance of specific deterrence.  Conversely it may be that because of a person's mental illness they present more of a danger to the community. In those circumstances considerations of specific deterrence may result in an increased sentence.

26. For the reasons I gave earlier I consider the evidence establishes his mental health condition to some degree contributed to the commission of the offences in a material way and there should be some reduction in his moral culpability when assessing the objective seriousness of the offences.  In these circumstances, I consider that the objective seriousness of the damage property offence is below a notional midrange offence but not at the bottom of the range.  I have a similar opinion about the intimidation offence and the wound with intent offence.

Offender’s subjective case

Age

38. I turn then to the offender's subjective case.  He is now 23 years of age and was 21 as at the date of the offending.  In terms of his age at the date of the offending he should be considered a young adult offender and the principles associated with sentencing a young adult offender have application here.  Those principles are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrence, denunciation and retribution when sentencing a young adult offender; see the summary of the relevant principles in Bullock v The Queen [2016] NSWCCA 131.

Criminal History

39. He has no criminal convictions on his record.  Back in 2013 when he was 18 he received two non‑conviction bonds in relation to his use of cannabis.  His lack of any criminal record entitles him to some leniency in the sentence.

40. I note he was subject to an Apprehended Violence Order at the time of the offending which aggravates the offending. 

Custodial History

41. He has been in custody since the day of his arrest which is 17 December 2016 and the sentence will be backdated to commence on that date. 

Sentence Assessment Reports and Psychological Reports

42. In addition to the psychological reports that I mentioned I have before me a sentence assessment report, a testimonial from a family friend which refers to a rescue the offender with his brother performed prior to the offences, together with a newspaper article concerning that rescue.

43. A testimonial concerning his employment in 2016 as a general yards man and handyman and a testimonial from Gerber Transport.  In terms of his family background, he is the oldest of five siblings and reported a relatively stable childhood.  He told the psychologist that he had a close and supportive relationship with his family with strong values.  There were a number of family members and friends present in Court when I heard the sentence proceedings on Monday last.

Education and employment history

44. In terms of his education and employment history, I outlined earlier the psychological issues he had when attending school.  He was expelled halfway through year 9 due to frequent truancy, physical altercations and disruptive behaviour.  He did not complete a horticultural course which he attempted when leaving school but did complete a certificate in fitness at TAFE.  He has held a number of jobs since leaving school. 

Substance use

45. In terms of his illicit substance use the offender detailed to the psychologist that he has been a user of cannabis since he was 13 with his use of cannabis escalating over time.  He used MDMA and LSD at 16 and began using opium and amphetamines when 18, although it would appear his use of those drugs was not long‑term.  He was considered by the psychologist to have an alcohol use disorder and a substance use disorder.

46. Despite his obvious problems with alcohol and drugs and that he had consumed both to a significant degree on the day of the offences, perhaps showing yet again his immaturity, he was not prepared to say that he would give up drinking and using cannabis upon his release from custody although he was willing to reduce his intake of those substances. 

Attitude to the offence

47. In terms of his attitude to the offence the offender did apologise at the scene but then said words that undermined the genuineness of that apology.  There were some expressions of remorse in the witness box and I note his ultimate pleas of guilty which were late in coming.

48. The sentence assessment report author considered he displayed little victim empathy and claimed that other than being scared at the time there would be no other impact upon the victims.  These statements by the offender are consistent with both his immaturity and his lack of insight into the serious nature of his offending.

Remorse and character

49. I do not consider he has any really genuine remorse.  He was assessed by the author of the sentence assessment report as having a medium risk of reoffending.  The psychologist considered he had a low to moderate risk of reoffending.  The evidence before me establishes that he has held down employment in the past and has been considered a satisfactory employee.  He has also assisted in the rescue of someone in significant difficulties.

50. In these circumstances I am satisfied that he is a person of otherwise general good character which also means that I should extend further leniency to him.  The plea of guilty was entered on the day of his trial.  I will allow him a 5% discount of his sentence for the utilitarian value of his plea.

Determination

51. Given his lack of prior offending, his relative youth and his family support I consider that he has reasonable prospects of rehabilitation.  Much will depend upon his ability to stay away from alcohol and illicit drugs and to engage in appropriate psychological counselling to deal with his anger management issues.

52. I am satisfied on the evidence as I say the offender has reasonable prospects of rehabilitation.  Those prospects will be assisted if he has a longer period on parole than that provided by the statutory ratio.  I also consider that his age and that this is his first time in custody together with his prospects of rehabilitation justify a finding of special circumstances when fixing the non‑parole period.  As I say I will commence the sentence from when he went into custody on 17 December 2016.

53. Although the three substantive counts all occurred during the one incident I consider, given the nature of the offending and the fact that there were two victims, there should be some accumulation of the sentences.  The matters on the Form 1 have some limited impact on the sentence I have imposed on the wound with intent offence.

54. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender's conduct, recognising the harm done to the victim and the community and rehabilitation of the offender.

55. Serious personal violence offending like that which is before me must be met with significant sentences to deter the offender concerned and others from committing such offences.  Normally general deterrence features significantly when imposing sentences for such offending.  Here because of my findings concerning his mental health condition, the need to reflect general deterrence in the sentence is reduced.  There remains a need to have a component of personal deterrence.

56. The maximum penalties and in relation to the wound with intent offence the standard non‑parole period have been taken into account, as legislative guideposts as explained by the High Court in Muldrock v The Queen (2011) 244 CLR 120, and it will be seen I have departed from the standard non‑parole period when providing the indicative sentence for the wounding offence. I have done so because of my assessment of the objective seriousness of the offence and the offender's mental health condition. I will utilise the aggregate sentence provisions and I will firstly record the indicative sentences followed by the aggregate sentence.

Orders

57. Mr Gordon, you are convicted for the offences to which you have pleaded guilty and to the offence on the 166 certificate.

58. On the intentionally damage property offence there is an indicative sentence of 18 months imprisonment.

59. On the intimidation offence there is an indicative sentence of 14 months imprisonment.

60. On the wound with intent offence, having regard to the matters on the Form 1, there is an indicative sentence of three years and nine months with an indicative non‑parole period of two years.

61. On the breach Apprehended Domestic Violence offence on the s 166 certificate there is indicative sentence of six months imprisonment.

62. I impose an aggregate sentence of four years and nine months with an aggregate non‑parole period of two years and nine months.  The sentence commences on 17 December 2016 and expires on 16 September 2021.  The non‑parole period expires on 16 September 2019.

63. The earliest date you may be released to parole is the date of the expiry of the non‑parole period which is 16 September 2019.  Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date, so it is an aggregate sentence of four years and nine months.

64. There is an aggregate non‑parole period of two years and nine months.  The sentence commences on 17 December 2016 and I have it expiring on 16 September 2021, and the non‑parole period expiring on the 16 September 2019.

65. I should just quickly note that while I did not read onto the record the remainder of the agreed facts after I dealt with the dispute, I have of course had regard to them in sentencing the offender.

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Decision last updated: 01 October 2019