R v Haddad

[2023] NSWDC 393

District Court

New South Wales

Medium Neutral Citation:

R v Haddad [2023] NSWDC 393

Hearing dates:

31 August 2023

Decision date:

29 September 2023

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

1.    The Offender is sentenced to an aggregate term of imprisonment of 4 years and 6 months.

2   The sentence is taken to commence on 17 August 2022.

3   The first date the Offender is eligible for parole is 16 August 2025.

4 Pursuant to s 18B of the Drug Court Act 2000 the Offender is referred to the Drug Court to consider whether he should be the subject of a compulsory drug treatment order whilst in custody.

Catchwords:

CRIME – Sentence – Reckless wounding – Aggravated robbery with wounding/grievous bodily harm – Dishonestly obtain property by deception – Early plea of guilty – Young offender – Significant criminal history – Offender on conditional liberty – Bugmy principle – Drug addition – Mental health

Legislation Cited:

Crimes (Sentencing and Procedure Act) 1999, s 25D(2)(a), s 21A, 3A

Drug Court Act 2000, s 18B, 5A

Mental Health Act 2007, s 22

Cases Cited:

Attorney General's Application Under S37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518

Benitez v R (2006) 160 A Crim R 166

Bugmy v The Queen [2013] HCA 37

Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; 205 A Crim R 1; [2010] NSWCCA 194

Dixon v The Queen [2019] NSWCCA 85

McDonald v R [2015] NSWCCA 280

Moiler v R [2021] NSWCCA 73.

Nguyen v R [2019] NSWCCA 209

Pattison v R [2007] NSWCCA 186

R v Henry [1999] NSW CCA 111

RvJenkins [1999] NSWCCA 110

R v McNaughton (2006) 66 NSWLR 566

R v Millwood [2012] NSWCCA 2

R v Mitchell; R v Gallagher [2007] NSWCCA 296

R v Thomas [2008] NSWCCA 269

Shaw v R [2008] NSWCCA 58

Stevens v R [2017] NSWCCA 216

The Queenv De Simoni (1981) 147 CLR 383

Veen v The Queen (No 2) (1988) 164 CLR 465

Category:

Sentence

Parties:

Rex (Crown)
Andrew Junior Haddad (Offender)

Representation:

Counsel:
C Shaw (Crown)
S Talbert (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Veronica Love (Offender)

File Number(s):

2022/029623
2022/243436

Publication restriction:

None

JUDGMENT

Introduction

1. The Offender, Andre Junior Haddad, is being sentenced for the following two offences:

1. Reckless wounding, contrary to s 35(4) of the Crimes Act 1900 (NSW), This offence relates to events on 7 January 2022. The maximum penalty is 7 years with a standard non-parole period of 3 years.

2. Aggravated robbery with wounding/grievous bodily harm, contrary to s 96 of the Crimes Act 1900 (NSW), This offence relates to events on 13 June 2022. The maximum penalty is 25 years imprisonment. There is no standard non-parole period specified.

2. The Offender also asks that the Court take into account one offence of dishonestly obtain property by deception, contrary to s 192E(1) of the Crimes Act on a Form 1. The maximum penalty for this offence is 10 years’ imprisonment.

Plea of Guilty

3. The Offender pleaded guilty in the Local Court on 23 March 2023. By virtue of s 24D(2)(a) of the Crimes (Sentencing Procedure) Act he is entitled to the 25% mandatory discount for the utilitarian value of the guilty plea.

Agreed Facts

Reckless Wounding

4. I set out below the agreed facts in relation to the reckless wounding matter arising from the events on 7 January 2022.

1. At about 10.30pm on Friday 7 January 2022, the Offender and the Complainant, Jesse Brown, were at premises at Surry Hills, NSW, known as “Kylie’s house”. The Offender and the Complainant were known to each other. The Complainant observed the Offender to consume one shot of alcohol and 3 or 4 caps of “gear”. The Complainant had taken “some ice” at about lunch time.

2. The Offender offered to take the Complainant to “Mick’s” so that the Complainant could have a rest, some food and shower. The Complainant did not know Mick or where the Offender was staying but understood he “couch surfed” like the Complainant.

3. The Complainant said to the Offender “I don’t want to go, don’t worry about me cuz, its right, just leave me be please”. The Complainant felt scatted and was in a “bad state”. The Complainant was sitting on a step stool. The Offender was standing up and holding an umbrella. The Offender smashed the umbrella over the table and was swearing. The Offender said to the Complainant "you fucken cunt, you said you were gonna come with me and now you’re not". The Complainant replied "nah don't fucken worry about it brah".

4. The Offender walked out of the room and returned a short time later, holding a steak knife. The Offender walked up to the Complainant, bent down and cut the Complainant’s leg with the knife. The Complainant said “relax cuz, relax cuz” and “oi stop what the fuck you are going bra, I’m trynna ask you for help and you fucking stab me”. The Offender said “You think I’m playing games now cunt”.

5. The Offender then struck the Complainant’s neck with the knife. The Complainant said “stop, relax, settle down”. The Offender said more than once “get the fuck out you cunt, get the fuck out”.

6. The Complainant walked down to another house. After he showered, no one had called an ambulance, so he called triple zero on Tracey’s phone. CCTV from within the Northcott Flats shows that the Offender left the unit approximately 3 minutes after the Complainant, and then left the building.

7. The Complainant was taken to St Vincent’s Hospital. On examination the following was noted:

1. the Complainant was suffering from a left leg transverse deep laceration (required wash out, debrided and closed (“repaired”) in operating theatre by the Orthopaedic team);

2. left neck superficial laceration (required wash out in emergency).

8. The hospital notes relevantly record the following:

1. the laceration to the left calf was noted to be “5cm and open”;

2. the superficial laceration to the left neck was 2cm in length;

3. the Complainant was discharged on 9 January 2022.

9. The Offender was arrested on 3 August 2022 and was transferred to St Vincent’s Hospital under s 22 of the Mental Health Act 2007. On 17 August 2022, the Offender was fit for release and arrested. The Offender participated in a forensic procedure. The Offender declined to be interviewed.

Aggravated Robbery

5. I now set out the statement of agreed facts in relation to the aggravated robbery with wounding offence arising out of the events on 13 June 2021.

1. At the time of the offending, the Complainant had been couch surfing on and off for about 12 months at a friend’s unit in Camperdown.

2. At about 10.00pm on Sunday, 12 June 2022, the Complainant let himself into the unit, then went to sleep on the couch.

3. At about 1.00pm on Monday 13 June 2022, the Complainant awoke to the sound of a door shutting and noticed the Offender standing in the kitchen doorway.

4. The Complainant tried to leave the unit when the Offender stated, “give me your money.” The Offender grabbed the Complainant by the forearms and pushed him, which caused the Complainant to fall backwards and hit his head.

5. The Complainant’s arms were stuck inside his jumper and the Offender used his weight to hold the Complainant down. The Complainant tried to pull away and the Offender struck the Complainant with a 15cm serrated knife with a white handle.

6. The Complainant then tried to stand up and the Offender pulled his jumper which forced the Complainant to fall backwards. Whilst on the floor the Offender struck the Complainant again with the knife before saying, “I stabbed you now.”

7. The Offender subsequently took the Complainant’s brown leather wallet from his right-hand side front pocket. The Offender then ran from the unit. The wallet contained a St George credit card, a pension card belonging to the Complainant and about $300.00 in $50.00 denominations.

8. Shortly after, the Complainant noticed blood dripping from his hand and a cut to his neck and head. The Complainant began walking towards Royal Prince Albert Hospital. Members of the public offered assistance and called an ambulance.

9. The Complainant was taken to Royal Prince Alfred Hospital by ambulance. On examination the following was noted.

10. The complainant sustained a laceration to the frontal area of his head approximately 5cm posterior to the hairline. The wound took the form of a, “v-flap” which was 4cm wide, and was treated with sutures. Below is a photograph of the wound.

Dishonestly Obtaining Property by Deception

6. The agreed facts in relation to the Form 1 – dishonestly obtaining property by deception are as follows:

1. On 13 June 2022, the Offender used the St. George debit card belonging to the Complainant to make two purchases at Naan Stop on Norton Street Leichhardt. The total of these transactions was $19.21.

Reckless Wounding / Objective Seriousness

7. As is explained in cases such as R v Mitchell; R v Gallagher [2007] NSWCCA 296 at [27], the nature of the injury caused to the Complainant will, to a very significant degree, determine the seriousness of the offence and the appropriate sentence.

8. The manner in which the injury was inflicted, the reason it was inflicted and the surrounding circumstances are relevant to the seriousness of the offending – see Stevens v R [2017] NSWCCA 216 at [40].

9. The Crown submits that the objective seriousness of the reckless wounding charge is within the mid-range for offences of this nature. The Crown emphasises the use of a 10 cm steak knife with a serrated edge to inflict the wound on the Complainant, the fact that the Complainant told the Offender to stop after he stabbed him in the leg and the fact that the Offender used the knife to inflict two wounds on the Complainant which included a laceration to the left calf which was 5 cm and open, and a 2 cm superficial laceration to the left neck of the Complainant.

10. I accept the Crown’s submissions (which I don’t think are really contested on behalf of the Offender) that the reckless wounding charge is well within the mid-range for offences of this nature.

Aggravated Robbery /Objective Seriousness

11. As to the aggravated robbery with wounding offence, the Crown, after referring to the guideline judgment of R v Henry [1999] NSWCCA 111, R v Thomas [2008] NSWCCA 269 at [22] and [91] and McDonald v R [2015] NSWCCA 280 makes these observations as to the seven factors identified by the Court of Criminal Appeal in Henry as follows:

1. The Offender is young, having committed the offence at age 20. However, notwithstanding his young age, the Offender has, to say the least, a significant record of prior convictions for similar offences.

2. The offence involved the use of an approximately 10 cm serrated edged knife, capable of killing or inflicting serious injury.

3. There was no planning involved.

4. It cannot be said that there was limited violence, with the Offender striking the Complainant more than once with a knife.

5. The property taken was a small amount, the Complainant’s debit card with transactions totalling $19.21 which is taken into account on the Form 1.

6. In this case, the Offender entered an early guilty plea, however this factor is limited by the strength of the Crown case. The Complainant recognised the Offender, and the Offender was seen on CCTV at the unit after the offending, which also captured the Offender’s distinctive arm tattoo.

12. The objective seriousness of a robbery will obviously be affected by whether a weapon or weapons are used, and if so, the nature of the weapons and the manner in which they are used: R v Jenkins [1999] NSWCCA 110 at [5]. I find that the Offender used an approximately 15cm serrated steak edged knife during the robbery to strike the Complainant twice, causing not insignificant injuries.

13. The Crown submits that in all the circumstances, the objective seriousness of the aggravated robbery with wounding charge is that it is again within mid-range for offences of this nature.

14. Again, I don’t think this is really contended by the Offender. I accept that submission and proceed upon that basis.

15. As to the Form 1 offence, I approach the matter upon the following basis:

1. The Court stated in Attorney General's Application Under S37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 at [42]:

“The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so.”

2. It may be accepted that a sentencing Judge should assess the objective seriousness of the primary offence separately before taking into account Form 1 offences for the purpose of sentence. Although the ultimate sentencing decision should have regard to the total criminality involved, different pathways are to be followed to bring about this result: Nguyen v R [2019] NSWCCA 209 at [58].

16. The Crown submits that taking into account the Form 1 offence, attached to sequence 3 and involving the same victim would have some increase on the overall sentence of the principal offence. I accept this submission and will take the Form 1 offence into account when considering the appropriate sentence.

Section 21A - Aggravating Factors

17. There are a number of aggravating factors in play in relation to each offence, which I will now identify.

18. First, both offences involved actual or threatened use of a weapon (s 21A(2)(c)). Second, both offences were committed inside the home of the Complainant or another person (s 21A(2)(b)). Third, the Offender has a number of prior convictions for violent offences for which he has served terms of imprisonment, including two previous offences of reckless wounding and common assault (s 21A(2)(d)). Fourth, both offences were committed at a time when the Offender was on conditional liberty (s 21A(2)(i)). The Offender was on conditional bail for domestic violence related offences at the time of each offence and was also on bail in relation to three separate offences including stalk/intimidation, steal property in a dwelling house, and common assault, at the time of committing the aggravated robbery offence.

Section 21A – Mitigating Factor

19. As I have said the Offender entered a plea of guilty in the Local Court on 23 March 2023 and is thus entitled to a discount of 25% to reflect the utilitarian value of the plea in accordance with s 25D(2)(a) of the Crimes (Sentencing and Procedure) Act 1999. The plea of guilty itself is also a mitigating factor for the purpose of s 21A.

The Offender’s subjective case

20. Dealing with the subjective case for the Offender and in particular my assessment of his moral culpability, remorse, contrition, insight together with his prospects of reoffending, I have before me a psychological report from Ms Chris North dated 21 December 2023 and a psychiatric report from Dr Richard Furst dated 8 October 2019 (prepared in relation to proceedings for previous offences) which comprehensively set out the Offender’s background.

21. Whilst neither report deals with the circumstances of the offences that are before me, it seems to me that the opinions remain as relevant as they were prior to these events.

22. I also have tendered before me a moving letter from the Offender’s father which I think it appropriate to set out the relevant portions in full:

“My son Andre went off the rails after the passing of his mother Mecca Tighes on the 08/09/20. During the year leading up to his arrest in August 2022, Andre was living on the streets and busking to support his drug habit. Andre was also couch-surfing when it was too cold to be sleeping out on the streets and he would wear the same clothes for days. Andre had a heroin and ice addition and was reliant on those drugs daily. Andre was also suffering from untreated mental health issues.

When I saw my son during this period he appeared paranoid and distressed. He would say things like:

‘I’ve got voices in my head’ and ‘there’s someone talking to me but no one is there’. He seemed agitated and to my observation too drugs in part to mask the impact of his mental health.

When Andre was first arrested last year, he was extremely unwell and distressed. Before Andre was returned to police custody, they sent him to St Vincent’s hospital for a few weeks for him to get assessed for his mental health. Since Andre has been in custody and on the Buvidal program, I have noticed a steady improvement in his attitude since he is properly medicated and being treated for drug use.

I have regular contact with Andre by phone when he is not in a metropolitan gaol. When he is in Sydney I can have physical visits with him. We have an extended family who all love and are supportive of Andre, including my mother, his grandmother.

Andre will always have a home with me. I love my son and I am happy for him to live with me, his younger brother and sister at my home in Blakehurst. I am able and willing to provide him with the physical and emotional support he needs.”

23. I accept as fact the various matters set out in this letter. They are largely consistent with the expert reports to which I have referred.

24. I make the following findings.

1. The Offender is 21 years of age. He is of mixed Aboriginal and Lebanese descent (North [20]; Furst p.5).

2. The Offender was raised in a highly dysfunctional environment characterised by instability and family violence. His mother suffered from mental health and substance abuse issues and spent time in prison (North [20]; Furst p5). She also used alcohol, cannabis and amphetamines while pregnant with and breastfeeding the Offender (North [10]).

3. The Offender’s mother subjected him to physical abuse during childhood (North [8], [15], [25]; Furst pp.2, 4). The Offender also witnessed his mother perpetrate violence against his father and siblings, which culminated in his mother stabbing his father when he was aged 7 or 8 years (Furst p2).

4. The Offender’s mother died suddenly in 2019, which caused him distress (North [6]).

5. The Offender has an underlying intellectual or learning disability and symptoms of dyslexia and ADHD which inhibited his education (North [11], [29]; Furst p.2). His unstable family circumstances and behavioural difficulties were also disruptive of his education, causing him to attend several different schools before leaving school in year 8 (North [11]; Furst p.2).

6. Although his cognitive function has not been formally tested, he appeared to Dr Furst (p. 5) to be of well below average IQ.

7. The Offender commenced smoking cannabis when 13 years of age and using the drug “ice” and heroin between 13 and 15 years of age (North [13]; Furst p.3). He reported his use was to “block out” memories of childhood trauma in connection with his mental health issues (North [14]; Furst p.3).

8. The Offender’s cannabis use increased after reconnecting with his mother between the ages of 14 and 15 years (North [13]), with The Offender’s father noting that his mother encouraged his drug use from an early age (Furst p.5).

9. During the period of offending, The Offender was unemployed, had no stable accommodation and was associating with anti-social peers. He was also using both heroin and “ice” daily in the leadup to the offending (North [6]-[7]).

10. The Offender has previously attended the St George Drug and Alcohol Service for Opioid Substitution Treatment (Furst p.5).

1. The Offender has a loving and supportive family.

25. The principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 at [43]-[44] are highly relevant here:

“The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person had a long history of offending.

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an Offender’s deprived background in every sentencing decision.”

26. The comments made by Simpson J in R v Millwood [2012] NSWCCA 2, at [69] are also worth emphasising in the context of this case:

“I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.”

27. The Offender’s deprived and traumatic background must properly be taken into account when imposing the sentence in this case, in the way permitted by the High Court in Bugmy (see [37]). I propose to give those matters significant weight.

Mental Health History

28. Each of the reports by Dr Furst and Ms North detail the Offender’s mental health history.

29. Dr Furst states that the Offender has a history of traumatic exposure in his childhood to his mother’s mental illness and developed symptoms consistent with PTSD in his childhood and early teens. Dr Furst’s opinion is that he cannot currently be diagnosed with PTSD but that he does have some residual “flashbacks” (p.6).

30. He has a history of self-harm, depressive symptoms, suicidal ideation, and he attempted suicide including whilst in Juvenile Justice (North [16]-[17]; Furst pp.4-5). Dr Furst’s opinion is that this is suggestive of an underlying/emerging personality disorder of the borderline type (p.6).

31. Dr Furst is of the opinion that the Offender has a substance use disorder with a primary addiction of opiate dependence (Furst p.6) and Ms North diagnoses the Offender with Opioid Use Disorder, Moderate and Stimulant Use Disorder, Moderate and potentially schizophrenia (North [28]).

32. In relation to a diagnosis of schizophrenia, Dr Furst noted that the Offender first reported psychotic symptoms in February 2019 and reports receiving a diagnosis of schizophrenia through Juvenile Justice. As of October 2019, he was being medicated with antipsychotic medication for schizophrenia (Furst p.3). However, as at October 2019, Dr Furst was not able to provide a definitive diagnosis of schizophrenia due to the complexity of his presentation and the small window of time in which he has reported symptoms (p.6-7).

33. The Offender’s mental health continued to deteriorate after October 2019 and following his release from custody at that time. As detailed by Ms North (noting her report was 3 years after Dr Furst’s report), the Offender ceased taking medication when he was released and did not seek any treatment when he was back in the community. His mental health declined accordingly (North [6]), coupled with a relapse into heroin and methamphetamine use.

34. The Offender reported a decline in his mental health during the period of offending, experiencing various symptoms consistent with a diagnosis of schizophrenia, including paranoia and auditory hallucinations. This led to his admission to St Vincent’s Hospital as an involuntary patient following his arrest on 4 August 2022 and was subsequently a voluntary patient at the Caritas Mental Health Unit until 17 August 2022. He has since been treated with antipsychotic medication in custody (North [18]-[19]).

35. Ms North notes that the Offender’s history and presentation is consistent with Schizophrenia, also noting that the Offender’s mother had been diagnosed with the same illness suggestive of a family history (North [26]). Ultimately, Ms North assessed the Offender as meeting the criteria for schizophrenia, although Ms North does not make such a diagnosis.

36. The Offender’s mental condition is relevant to sentence in a number of ways. The relevant principles are explained in Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; 205 A Crim R 1; [2010] NSWCCA 194.

37. 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.

38. The evidence of the deterioration of the Offender’s mental health in the 18 months before his arrest, encompassing the time of each of the offences, and his being symptomatic of schizophrenia, leads me to find that his mental health whilst perhaps not the cause, contributed to the commission of the offence in a material way (see Benitez v R (2006) 160 A Crim R 166).

39. In Moiler v R [2021] NSWCCA 73, the appellant was an Aboriginal man whose mental health issues, including schizophrenia, were exacerbated by his abuse of prohibited drugs. Button J said the following in respect of the causal link between mental health, substance abuse and criminal offending (emphasis added):

[59] “It is well known that the assessment of the extent of a mental condition, its causative connection (if any) with offending, and any concomitant reduction in moral culpability and sentence to be imposed are all very much a matter for a sentencing judge: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. Even so, in my opinion care should be taken not to take too prescriptive an approach, in a process of instinctive synthesis, whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence. It is noteworthy that the first dot point of that oft-quoted paragraph speaks of material contribution to offending, not singular or direct causation of it.

[60] I accept that the applicant on this occasion did not assert that command hallucinations had “told” him to use the fire extinguisher. But that is hardly to say that his chronic and severe mental illness could not play a significant contextual and causative role in how it was that this offence came to be committed. After all, one could reflect that, if the applicant had not been suffering from a longstanding mental illness and intellectual deficits, and all that has flowed from them, by the age of 29 his life might have turned out very differently.

[61] In similar vein, whilst it is true that abuse of prohibited drugs played a role in the commission of the offence, and that abuse of such substances is not a mitigating feature on sentence except in unusual circumstances, care needs to be taken not to permit that statutory prohibition to lead to insufficient weight being given to a closely related mental illness, especially when that illness and the abuse of prohibited drugs are so tightly bound up with each other.”

40. In this case, I conclude that the Offender’s mental illness reduces the Offender’s moral culpability and the need for retribution and denunciation.

41. I also think the Offender’s mental illness makes him an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

42. However, I am very concerned that the Offender’s mental illness, if untreated, makes him a danger to the community. As so often occurs in the process of sentencing, the various relevant matters point in different directions. In those circumstances, considerations of the safety of the community loom large.

43. The Offender appears to have been compliant with a treatment program whilst in custody and has a treatment plan in place as outlined by Ms North which, if complied with in my judgment, will significantly reduce any risk of reoffending.

44. Finally, the Offender’s experience of custody may be expected to be more onerous due to mental illness.

Prior criminal history

45. For a man of such a young age, the Offender has what can only be described as a dreadful criminal history which has been dealt with both in the Children’s Court and the Downing Centre Local Court, wherein he has received various sentences ranging from Community Corrections orders, periods of full-time imprisonment, and the like.

46. The offences include reckless wounding (2018), reckless wounding and custody of knife (2019), destroy or damage property, stalk/intimidation (2021), steal property in dwelling house (2021), common assault, larceny and steal property in dwelling house (2022).

47. The Offender’s prior record does not act to increase the objective seriousness of the offences with which I am dealing, and it is not open to the Court to use prior convictions to determine the upper boundary of a proportionate sentence: R v McNaughton (2006) 66 NSWLR 566 at [25]; Veen v The Queen (No 2) (1988) 164 CLR 465; Dixon v The Queen [2019] NSWCCA 85. However, prior convictions can be relevant to the determination of whether leniency should be extended: Shaw v R [2008] NSWCCA 58 at 21; Pattison v R [2007] NSWCCA 186 at [39]. Moreover, his history to date in reoffending is obviously relevant to his prospects of reoffending in the future.

48. However, the aggravating factor of the Offender’s record of previous convictions under s21A(2)(d) of the Criminal (Sentencing and Procedure) Act must be considered in a manner consistent with the proportionality principle in Veen at [477] and McNaughton at [30]. That is, his prior criminal record cannot be given such weight as to lead to the imposition of a penalty that is disproportionate to the gravity of these particular offences.

Drug addiction

49. It is obvious that the Offender has not only had to deal with a dreadfully deprived upbringing and has serious mental health issues – whether or not he has a certain diagnosis of schizophrenia – is not to the point. I find that the Offender is exhibiting all of the signs and symptoms of schizophrenia and is being treated for it. When he takes the medication, his mood significantly improves, which strongly suggests to me that if it is not schizophrenia, it is something close to it. The fact that he has a family history of schizophrenia to my mind allows me to proceed upon the basis that he probably does have schizophrenia. He is also addicted to ice and heroin. He seems to have had a serious drug problem since he was about 13 years old. The circumstances of how he got onto drugs lead me to conclude that this is not a case where he made a deliberate decision to commence taking drugs, rather, it was a consequence of his circumstances and accordingly, whilst I accept that self-induced drug taking is no excuse for these sorts of crimes, it is an explanation and is the key to the important question of the prospects of his rehabilitation.

Remorse and risk of re-offending

50. The Offender has expressed remorse and contrition by accepting responsibility for the offences.

51. Ms North notes positively that the Offender has displayed insight into his need to address his mental health issues and has resumed his medications since his arrest (North [4]). Ms North at [29] sets out a comprehensive treatment plan to address the Offender’s treatment needs. I pause to observe that this insight was before the offences before me occurred. This gives me reason to doubt his ability to abide by future treatment plans, but to my mind does not mean that he does not have real remorse and insight.

52. The Offender’s father is supportive of him and has insight into the effect of his mental health issues, which is a protective factor. The Offender’s young age, 22 years, is also important to the question of the Offender’s ability to rehabilitate over time. It is generally accepted that young offenders have a greater prospect of rehabilitation than more mature offenders.

Consideration

53. I think it is important to emphasise that notwithstanding the sorry history of the Offender’s dealings with the criminal justice system in his short life, and notwithstanding his long-term drug addiction, he remains a very young man who is still only 22 years old. I do accept his expressions of contrition and remorse and I do think there is a reasonable prospect that he can be rehabilitated from what to date has effectively been a life of crime, if and only if, he becomes drug-free and continues treatment for his mental health issues.

54. In other words, it must be accepted that to a very large degree his mental health and drug taking is the cause of his criminal conduct. I am satisfied that he has a very supportive family and some determination to become drug free and obtain treatment for his mental health issues, albeit he has tried and failed in the past. I am very conscious that I should endeavour not to impose a sentence involving a term of imprisonment which “crushes” him, thus leaving him with no prospects at all of a successful life.

55. His counsel submitted that this sentence should be seen as a “turning point” in his life, where he should be given some opportunity to redeem himself going forward. Notwithstanding the fact that I am sure a number of judicial officers before me have received and acted upon a similar submission, I am prepared to proceed upon that basis.

Time in custody

56. The Offender has spent time in custody since 17 August 2022, when he was released from hospital following his arrest for these matters on 3 August 2022.

57. The Offender was in custody for one day when initially arrested on 3 August 2022. He was then admitted to hospital and taken into custody again on his release from hospital on 17 August 2022. He has remained in custody since that date. On 7 March 2023, he was sentenced for unrelated offences committed on 3 January 2022. A six-month non-parole period was imposed commencing 2 August 2022 and expiring 2 February 2023.

58. It is submitted that the Court would exercise its discretion and backdate any sentence to when he was arrested for the offences for which he is now to be sentenced. This recognises that the dates of the offences for which he was sentenced on 7 March 2023 were around the same time as the offence and that the subjective matters raised for the Offender were also in play at this time according to Ms North.

59. If the Offender had been apprehended and sentenced for all offences at the same time the principle of totality would have led to a large degree of concurrency across the offences in any periods of imprisonment imposed. Again, I am acutely conscious that I must try to avoid a “crushing” sentence is imposed on the Offender.

60. The Crown accepts that it is appropriate in all the circumstances for any term of imprisonment imposed by me to be backdated, so as to commence on 17 August 2022, and I propose to take that course.

61. I should also record at this stage that it is agreed between the parties that during that period in custody the Offender has been in protective custody for approximately six months, because it has been determined that he is at risk of violence from at least one other inmate. I take that into account when considering both the weight to give to the time in custody already passed and the length of any prison term that I will impose.

The Principles of Sentencing

62. Section 3A of the Crimes (Sentencing and Procedure) Act commands me to take into account various matters.

63. Of significant relevance to the consideration of the issue at hand before me is protection of the community, specific and general deterrence, and that the punishment is appropriate in relation to the crimes, so as to allow both the victims and the community some retribution.

64. It is important to keep firmly in mind, notwithstanding the powerful subjective case of the Offender, that the crimes he is being sentenced for were extremely serious and violent. They caused what can only be described as significant injuries to the Complainant and it is perhaps only a matter of luck that the consequences of the crimes were not much worse.

65. Notwithstanding his deprived background, mental health issues, and drug addictions, it is simply not acceptable to the community that a young man such as the Offender continues to inflict violent assaults on other members of society. If the Offender continues to attack people with knives it seems to me to be close to inevitable that he will eventually kill someone.

Resolution

66. Taking all of the matters that I've mentioned into account but in particular:

1. the fact that the Offender is still extremely young, thus to my mind his prospects of rehabilitation are reasonable;

2. the explanation for the crimes being directly linked to his mental health issues via his serious drug addiction which to my mind reduces his moral culpability;

3. that his drug addiction cannot be described as being the product of an informed adult choice;

4. the Offender’s significant statements of contrition and remorse and insight;

5. the Offender’s desire to become drug free;

6. the opinions of both Ms North and Dr Furst;

7. the extremely deprived background of the Offender;

8. that there is hope for the Offender, if he can become drug free and is properly treated for his mental health issues;

9. the extremely violent nature of the crimes; and

10. the Offender’s significant record of violent crime,

I have decided that an appropriate indicative sentence for the reckless wounding offence is 3 years and for the aggravated robbery offence is 4 years. From both sentences a discount of 25% is to be deducted for the plea of guilty. Taking into account principles of totality and proportionality and the offence on the Form 1, I propose an aggregate head sentence of 4 years and 6 months.

67. For reasons I have explained, the sentence should be backdated so as to commence from 17 August 2022.

68. When fixing the non-parole period I make a finding of special circumstances given the Offenders’ early plea of guilty, the significant risk that I perceive of him becoming institutionalised if he spends too long in prison, and the obvious need that he has to be supervised upon his release in relation to both his mental health treatment and his drug issues, I think it appropriate to increase the period on parole so that it represents 33% of the term.

Drug Court Act 1988

69. In my judgment, the Offender is an “eligible convicted Offender” for the purpose of s 5A of the Drug Court Act, in those circumstances, pursuant to s 18B of that Act I propose to refer him to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order whilst in custody. Whilst it is entirely a matter for that Court, it is my opinion on the evidence before me that he appears to be a suitable candidate and treatment whilst in custody would be to his and the community’s benefit.

Conclusion and orders

70. I have decided to impose an aggregate sentence of imprisonment. The aggregate sentence I impose consists of a non-parole period of 3 years, commencing from 17 August 2022 and a head sentence of 4 years and 6 months. The Offender will become eligible to be released on parole on 16 August 2025.

71. The sentences that would have been imposed for each offence if separate sentences had been imposed instead of an aggregate sentence are:

1. For the offence of reckless wounding pursuant to s 35(4) of the Crimes Act 1900, a sentence of 2 years and 3 months. This term has been reduced by 25% for the plea of guilty.

2. For the offence of aggravated robbery with wounding/grievous bodily harm pursuant to s 96 of the Crimes Act 1900, a sentence of 3 years. This term has been reduced by 25% for the plea of guilty.

72. Mr Haddad for the offences you have pleaded guilty to, I convict you, and

1. I impose an aggregate term of imprisonment of 4 years and 6 months.

2. I order that the sentence be taken to commence on 17 August 2022.

3. The first date the Offender will be eligible for parole is 16 August 2025.

4. Pursuant to s 18B of the Drug Court Act I refer the Offender to the Drug Court to consider whether he should be the subject of a compulsory drug treatment order whilst in custody.

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Decision last updated: 29 September 2023