R v Harris-Merchant

[2021] NSWDC 501

District Court

New South Wales

Medium Neutral Citation:

R v Harris-Merchant [2021] NSWDC 501

Hearing dates:

18 August 2021

Date of orders:

18 August 2021

Decision date:

18 August 2021

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Sentence of imprisonment of 2 years 4 months with a non-parole period of 1 year

Catchwords:

CRIME — Public order offences — Affray

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Circumstances of offence

SENTENCING — Relevant factors on sentence — Parole period

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Mental Health (Forensic Provisions Act) 1990

Cases Cited:

Imbornone v R [2017] NSWCCA 144

R v Callaghan [2006] NSWCCA 58

R v Qutami [2001] NSWCCA 353

Category:

Sentence

Parties:

Regina (Crown)
Keano Harris-Merchant (Offender)

Representation:

Stella Calderbank (Crown)
Allan Goldsworthy (Counsel for the Offender)

Director of Public Prosecutions (NSW) (Crown)
Tully & Chiper Lawyers (solicitors for the Offender)

File Number(s):

2020/00293494

REVISED EX TEMPORE JUDGEMENT

Introduction

1. Keano Harris‑Merchant pleaded guilty in the Local Court at Central on 20 April 2021 to a charge of affray contrary to s 93C(1) Crimes Act 1900 expressed in the following terms: that he “on 30 September 2020 at Glebe in the State of New South Wales did use unlawful violence towards an unidentified male, and Keano Harris‑Merchant’s conduct was such as would have caused a person of reasonable firmness present at the scene to fear for her or his personal safety”.

Maximum Penalty

2. The offence carries a maximum penalty of imprisonment for 10 years. There is no standard non‑parole period for the purposes of Part 4, Div 1A Crimes (Sentencing Procedure) Act 1999.

Utility of the Plea of Guilty

3. The plea of guilty was entered at an early point in these proceedings, and attracts a 25% discount upon the application of s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999. The discount will be applied to the sentence that would otherwise have been imposed upon the synthesis of objective and subjective matters that have been raised in the course of these proceedings.

4. The sentence that I have selected has been rounded down to disregard odd days and thus there will be a slight increase in that percentage discount but of marginal, if any, significance.

Pre-Sentence Custody

5. The offender is in custody. He was arrested on 12 October 2020 and has been held since.

6. As a consequence of this misconduct, parole to which he was subject for prior offending was revoked with the balance to be served from that date. He will be eligible for his release upon the expiration of the parole period on 16 December 2021.

7. This requires the Court to consider when the sentence I impose today should commence. It is now well‑established that the Court has discretion as to when to commence a sentence imposed in these circumstances, as discussed by Justice Simpson in R v Callaghan [2006] NSWCCA 58 from para [21] and concluding at para [25]. The matters to which her Honour referred that a Court should consider in the exercise of this discretion begin in para [23],

“It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole.

24. However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences.

25. Thus, I am of the view that the sentencing judge did have a discretion to make the sentences wholly or partly cumulative upon the sentence to which the applicant was, as a consequence of the revocation of parole, serving. That allowed her a period of six months. She could have specified the current sentences to commence at any time during that period.”

8. The parole to which the offender was subject arose from his conviction for an offence of being armed with an offensive weapon and committing robbery and also a conspiracy to commit an offence on 11 December 2017. He was sentenced to an aggregate sentence of six years and six months, commencing on 17 June 2015 to expire on 16 December 2021, with a non‑parole period of four years, to expire on 16 June 2019.

9. The date of the offence before this Court was 30 September 2020, a little more than one year and three months after the commencement of specified parole period given in respect of that sentence. The Crown concedes that there should be significant concurrence between the sentence and the sentence to which he is presently subject, a view with which I agree, and so I shall commence this sentence today, on 12 April 2021.

10. At the time of this offence, he was subject to other conditional liberty in the form of a conditional release order pursuant to s 9(1)(b) Crimes (Sentencing Procedure) Act 1999 imposed on 31 August 2020 in the Local Court at Newtown. This was without proceeding to conviction. Included in the Crown bundle is a bundle of documents relevant to that prosecution. This offence occurred about 12.45pm or shortly thereafter on Thursday, 26 August 2019 when the offender stole from a retail chemist a container of liquid product to the value of $12. I reviewed the facts. The material before the magistrate included a report by psychologist Tim Watson‑Monroe written on 17 August 2020 which is also tendered in the proceedings before me.

11. In the circumstances, upon the admission of the breach and his consent that the Court deals with the matter, I have called the offender up to answer for this breach. I shall revoke the conditional release order. I shall convict him of that offence but pursuant to s 10A Crimes (Sentencing Procedure) Act 1999, I shall impose no penalty.

The Facts

12. The facts admitted by the offender are lengthy, but because of the misconduct and its nature it is appropriate that I not truncate other than marginally what is described as occurring.

13. The events that I am describing were captured on closed‑circuit television by means of which the offender was identified. I note that the offence occurred on 30 September 2020. He was not arrested until 12 October 2020; that came about when the police were able to have examined the images of the offender on the closed‑circuit television recording. He is captured without his T-shirt, which he removed in the course of these events, revealing tattoos that the photographic identification team were able to compare with holdings and ultimately identify the offender. This clearly took time and hence the delay in his arrest.

14. Police were called to the scene in response to a report that there was an ongoing brawl but when they arrived there the participants had all left and thus the investigators resorted to closed‑circuit television. Only the offender has been identified. The other three participants in this affray, at least one of whom appears to have been known to the offender, have not been identified and have escaped their punishment.

15. The facts refer to one of these participants as a victim. I confess that upon my reading of the material, although he seemed to get the worst of what occurred he was, as was said to me, a willing participant in what was unfolding for whatever reason, and for his efforts received the attention of both the offender and two other unidentified males who together engaged upon an assault of him. The facts describe these unidentified males with reference to their clothing, to distinguish them when one compares the images which have been raised from the closed‑circuit television; copies of those images have been included at strategic points within the factual description.

16. The events occurred on 30 September 2020 between 10.25am and 10.35am. This was a Wednesday. It was not within a period of lockdown such as the community is presently experiencing and as I understand it and recall it was not within the period of limitations that were imposed upon the community in one way or another in 2020 by reason of the Covid‑19 pandemic. The events were captured on a north‑facing closed‑circuit television camera in Bay Street at Ultimo and one inside the Off Broadway Hotel.

17. Bay Street runs generally north/south. At the southern end, it joins Parramatta Road and at the northern end as I recall it joins the T‑intersection at Wentworth Park. On the southwestern corner of the Parramatta Road intersection the Broadway Westfield Shopping Centre is located and proximate to that building in Bay Street is the Off Broadway Hotel. Again, that is on the western side of Bay Street.

18. At 10.25am on that day, the victim, so‑called, was captured inside the Broadway Shopping Centre on the closed‑circuit television system. He is depicted descending the escalators at the entrance point of the shopping centre that leads onto Bay Street. He is depicted lighting a cigarette; he smokes it while he is pacing on the pavement next to the taxi rank. He is captured removing his hoodie from his shoulders and putting it on.

19. There is nothing further that explains what he was putting on but he then went a position out of the view of the closed‑circuit television system. He is next seen speaking to a woman, described as unidentified woman number 1, at the top of the steps above the entrance to the Off Broadway Hotel; the woman is described with reference to her clothing and a shopping bag that she was carrying.

20. After speaking with her, the victim walked toward and entered the doors of the Off Broadway Hotel and then went towards the escalators on Bay Street. While continuing to smoke near the bollard at the bottom of the escalators, the victim spoke to unknown male, again described with reference to clothing. Shortly after, he ascended the escalator and returned to the shopping centre and again walked out of view of the camera.

21. The CCTV captured the two unidentified males walking next to each other and taking the Bay Street entrance escalator into the shopping centre.

22. Unidentified male 1 was then described with reference to his clothing; so too the unidentified male 2. Both of them turned left and went out of the view of the camera. The CCTV captured the victim at the top of the screen when he re‑entered the frame. He became aggressive and began to point and appeared to yell. The two unidentified men re‑entered the frame and are seen to continue in a verbal argument at the top of the escalator for a few seconds, although it is not said as I understand it, that there was conduct in which they engaged with the so‑called victim.

23. The CCTV footage shows the offender at that point, running up the escalator to the shopping centre. He is then described with reference to his clothes, including a grey T‑shirt. He was carrying a grey/blue gym bag across his upper body. The victim and the unidentified males, now described as co‑accused, continued in a verbal argument at the top of the escalator for a few seconds. The offender is seen to run up the escalator and raise his right arm and slap the victim to the face with an open hand. The offender then took off his bag and placed it on the floor at the top of the escalators.

24. He and the two unidentified males surrounded the victim forming a circle. The victim’s back was facing toward the street. He walked backwards onto the escalator, which descended to the street. As he negotiated the escalator down he turned and began to walk down it followed by the offender. The offender, midway down the escalator, removed his grey shirt from his upper body and held it scrunched in his right hand. This gave the opportunity for the capture of the tattoos on his chest, left leg, neck, torso and right lower arm which ultimately led to his identification.

25. The two unidentified men followed behind the offender. Unidentified male number 2 was carrying the gym bag previously carried by the offender. The victim headed in a northerly direction down Bay Street. The two unidentified males followed him. He went behind stairs outside the Off Broadway Hotel and put his hand on the door to the northern most entrance. He stopped at the door, he appeared to look inside before turning around and moving toward the offender and the two unidentified males.

26. He ran towards the face of the offender who it is said ducked the punch. Although it is not said so, this carries the implication at least that the victim threw a punch in that manoeuvre. The offender tackled and grabbed hold of the victim. A co‑accused, so described at this point, is seen to attempt to throw punches to the face of the victim. The offender and, as again described, the co‑accused began throwing punches toward the victim. The victim threw punches back in the direction of both the offender and the co‑accused in self‑defence.

27. It was put to me in the course of submissions that the conduct of the victim, who ran toward the face of the offender and by implication, at least threw a punch, which puts him in a more aggressive role. However, upon the facts as I have described them so far, I find as a fact that he had been moving away from these three offenders and it is at least probable that his conduct was in some measure to discourage them, to no avail as it turns out because the three of them embarked upon their attack of him.

28. The offender took his left and right arms and wrapped them around the victim’s torso and while holding him so, unidentified male number 1 began to throw a number of punches with his left and right fists to the victim in the chest and face area. The offender then moved his arms from around the victim’s waist and grabbed him around the collar of his hoodie at the back of his neck, and with his left hand still holding the hoodie the offender drew his right hand back, made a fist, and then attempted to throw a number of punches into the victim.

29. The offender, while still holding the collar of the victim attempted to pull the victim toward the street. As this was occurring, unidentified male number 1 used his arms to wrap around the waist of the victim. The victim is seen attempting to pull away from the offender and unidentified male number 1, the offender, continues to attempt to hit the victim with closed fists, and the offender and unidentified male number 1 then released the victim from their hold. The offender turned toward the door of the Off Broadway Hotel and picked up the blue and black gym bag from the top of the stairs.

30. Footage from inside the hotel showed the unidentified woman running out of the hotel toward the altercation. The CCTV captured the victim falling over and landing on the pavement adjacent to the taxi rank. He rose to his feet and then walked towards the three males. The victim and the three males were seen to push each other. The view is partially obscured by concrete columns.

31. The statement of facts then contains the following – “the affray lasts for approximately 15 seconds”. It is not clear to me precisely to what sequence that relates, but it appears to be upon the description I have so far. It is a rather conservative estimate if it was intended to extend to the entire episode of misconduct beginning with the first attack upon the victim.

32. I note that in the Crown submissions, a longer period of time was specified. I have approached the assessment of this matter upon the basis that the affray involving the application of force or the demonstrated violence occurred over a period of approximately 15 seconds but it would appear to me to be at least that length of time.

33. The unidentified woman positioned herself between the males, including the offender and the victim. A grey T‑shirt which must be the T‑shirt that was removed by the offender is seen to fall onto the pavement and the woman picked it up. She is seen to be holding on to the victim’s hoodie. The offender and the victim are shown to be yelling at each other. What is here written is consistent with the unidentified woman holding the hoodie and also the offender holding the hoodie. It is not clear to me which description should apply.

34. At that point, the offender returned the T‑shirt to his upper body. There is no explanation anywhere given for his decision to remove the T‑shirt. It is open to find, in my view, looking at the objective facts and circumstances that are described, that he did so as part of the display of aggression that is described in this confrontation and the violence toward the victim.

35. The CCTV continues to show the victim and the three men, including the offender, engage in a verbal altercation. The unidentified woman holds the victim by the sleeve of his hoodie. Unidentified male number one ascended the escalator to the Broadway Shopping Centre, picked up a red gym bag and then ran down the escalator. The offender approached a silver taxi and spoke to the driver. The offender and the two unidentified males are then seen to run across a pedestrian crossing and move south on Bay Street and out of sight of the closed‑circuit television system.

36. Police received a radio message at or about 10.40am, to attend the brawl occurring outside of the Broadway Shopping Centre. They could not locate any of the people involved. They canvassed the area and were approached by a witness, an employee from the hotel. The employee provided CCTV footage from the hotel, and upon their review of that, the police noticed the unique tattoos on the offender, and this, as I said, went to the photo recognition unit of New South Wales Police, leading to the identification in due course of the offender.

37. He was arrested on 12 October 2020. At or about 8pm, the police attended his address there. There was no answer to their knock at the door. They returned at 11.45pm. The offender called from inside. The police announced their office. The offender came to the door. The police saw the tattoos, or at least some of them. He was arrested for the affray. His response was, “Yeah, I know what happened. I know exactly what happened.” He was taken to Newtown Police Station. When being escorted from the vehicle there, he said, “You guys don't want to be here. It was silly. He wasn't injured and I did not start it.” He submitted to a forensic procedure. He declined the opportunity to participate in an ERISP. He bears no burden as a consequence of that. He was exercising his right.

The Assessment of the Offence

38. The submissions made regarding this misconduct on the part of the offender was that this should be seen at the lowest end of the range of objective seriousness. I was invited to the paras 27 and 33 of the statement of facts to which I have made some reference already. It was noted that the participants in this event were all voluntarily engaged. It was said there were not many people about at that time of the day proximate to the hotel. The recording, apparently, depicts very few people in the vicinity, so I am told. I have not seen the recording, but I have seen the images that were raised from the recording.

39. I agree that from the images I have the area was not crowded, but it is not to be overlooked that this was on a Wednesday, in the morning, when one might expect at least a number, perhaps significant a significant number, of members of the public moving about and in the vicinity of the business premises near to and within the shopping centre. It was submitted on behalf of the offender that in these circumstances, the threshold provided in s 5 Crimes (Sentencing Procedure) Act 1999 has not been crossed.

38. The submission, as I understood it, was made upon the assessment of the objective facts and circumstances without reference to the subjective matters upon which reliance is placed, but it is said that when one brings that to account and considers the extent of any moral culpability of the offender, one would come to the view that the line of s 5 has not been crossed and the alternative of a lengthy community corrections order is available and ought to be employed.

39. I don’t agree. Although the objective seriousness of this misconduct is below mid‑range, I will not put it as low as was put on behalf of the offender. Features of this event which inform the assessment I made include the date, the day and the time and the location of where this occurred, the period of time over which the altercation occurred, described in the submissions by the Crown as several minutes. As I have said, the facts to which the offender has pleaded guilty as the affray has approximately 15 seconds, which I find extraordinarily conservative, as I have said.

40. I agree with the proposition that upon the material I have, the offender was the instigator of the conduct. He ran up the escalators. He struck the person described as the victim, who then moved from the presence of the offender and the two unidentified males, but was followed by the offender, who removed his T‑shirt, and thereafter, the three of them continued on after the victim and offered the violence described. In those circumstances, the victim is seen to be attempting to walk away. The offender struck the victim on multiple times. There were three of them engaged. For those reasons, I have come to the view that, objectively, the line in s 5 has been crossed.

41. Submissions were also made with regard to the willing participation of all of the men who were involved in this, including the so‑called victim. I agree that the victim had a role to play in this, beginning with what appears to have been so sort of verbal exchange with the two unidentified males.

42. But I find from that point on he became their target. The essence of affray is not so much the attack upon the individual but the nature of the conduct and the impact it has upon those members of the community who might be about at the time and place it occurs. It is appropriate to refer to the provision - s 93C Crimes Act 1900 provides for the offence,

“1. A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years.

2. If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subs (1).

3. For the purposes of this section, a threat cannot be made by the use of words alone.

4. No person of reasonable firmness need actually be, or be likely to be, present at the scene.

5. Affray may be committed in private as well as in public places.”

The Offender

45. The offender is 28 years of age, born about mid‑1993. The offence led to his revocation of parole and I have the breach of parole report prepared upon the failure to comply with the condition that he must not commit any offences. His response to supervision has been positive according to this. The report includes the following,

“Mr Harris‑Merchant’s response to supervision had been satisfactory. His criminogenic factors include substance abuse and violence. Mr Harris‑Merchant had been compliant with reporting and supervision. He had been attending his treatment provided to address his substance abuse. Mr Harris‑Merchant was employed and had the support of his family.”

46. There is reference to a supervision plan that might be employed but the recommendation ultimately is that parole be revoked; that was executed.

47. His antecedents are significant. They extend over 11 pages. I have been asked to ignore or attribute little weight to what is contained in the record of antecedents accumulated in the Children’s Courts. I choose not to do so.

48. It is important in my view to obtain a complete picture of the offender’s background so that the sentence and the structure I intend to adopt can be seen to reflect what is hoped to be an appropriate sentence with a measure of punishment to reflect the misconduct upon which he engaged but at the same time, providing for an extended period of parole, hopefully to continue in the community without further criminality.

49. I agree with the submission that was made on his behalf that he has in the past demonstrated some capacity for rehabilitation. Indeed, he had gone for more than 12 months on parole apart from a minor stealing offence without any other misconduct, which unfortunately has now brought him back into custody where he is to remain for some little time yet.

50. The first Court date I have was in September 2010 in the Children’s Court for an offence of affray. He was given conditional liberty with a fine. In January 2011, he was called up and given an extended period of probation for having breached the earlier imposed conditional liberty.

51. In September 2010, he was made subject of a control order, suspended for an offence of robbery, armed with an offensive weapon. In May 2011, for an offensive manner, the charge was dismissed with a caution. In January 2011, he was detected driving a motor vehicle as a learner without a licensed driver, without displaying L‑plates, with taking and driving conveyance without the consent of the owner and with engaging in a police pursuit. For the licence offences, he was fined and disqualified. For the taking/drive the conveyance, he was given probation and a control order of one month only was imposed for the police pursuit.

52. In September 2011, for aggravated enter a dwelling, people were there, he was made subject to a control order, and for taking and driving a conveyance without consent of the owner he was made subject to a control order. They were both concurrent. In September 2011, for aggravated break and order, and commit a serious indictable offence, people were therein, another control order, concurrent with the earlier order, imposed on the same day.

53. In November 2012, for larceny, he was fined and made subject to a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999. This is the first appearance I have in the adult Court. On the same day, for breaking and entering and stealing, he was fined and placed under another bond pursuant to the same provision. In March 2012, a matter was dealt with in the Children’s Court. This was robbery, armed with an offensive weapon, which resulted in a control order with supervision upon release. So too for an aggravated assault with attempt to rob. Being carried in a conveyance taken without the consent of the owner was an offence taken into account.

54. In October 2014, again, in an adult Court for shoplifting, three offences, he was ordered to perform community service and pay a fine and enter a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999. He was called up in respect of the s 9 bond in due course in July 2015 and was sentenced to 14 days’ imprisonment. In September 2015, for two offences of shoplifting, he was called up and in respect of bonds previously imposed given another bond pursuant to section 9 of the Act for a period of two years. In September 2015, for affray, he was fined and given another bond of two years pursuant to s 9 Crimes (Sentencing Procedure) Act 1999. In September 2015, for common assault, he was fined and made subject to a further bond pursuant to s 9 of the aforementioned Act.

55. In December 2017, for robbery, armed with an offensive weapon and conspiracy to commit an offence, three counts, he suffered the imprisonment of six years and six months to which I earlier referred when dealing with his breach of parole and the decision made with regard to the commencement of this sentence today. An offence of taking/detain a person in company with attempt to obtain an advantage was taken into account in that prosecution.

56. In September 2011, in a Children’s Court for common assault, he was made the subject of a control order. In November 2012, in an adult Court, for assault occasioning actual bodily harm, he was fined and made the subject of a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999. In March 2012 in the Children’s Court for damaging property, he was placed on probation for 12 months.

57. In November 2012, in an adult Court for damaging property, the charge was dismissed pursuant to s 10 of the aforementioned Act. In November 2012, in an adult Court, for entering a vehicle or boat without consent of the owner, he was fined $200 and ordered to enter a bond pursuant to s 9, of the aforementioned Act for a period of 12 months. In August 2020, he was dealt with the shoplifting charge the subject of the conditional release order upon which I have made earlier comment.

58. His custodial record does him little service I must say. In the period within which he has been in custody on this occasion, there have been various incidents of misconduct leading to punishment.

59. The dates upon which they were incurred were 25 January 2021, resisting or impeding a search; on the same day, obstructing an officer; that was dismissed without evidence. On the same day, disobeying directions, which resulted in a punishment; on 15 February 2021, for an assault, he was confined in his cell for seven days. On the same day, for possessing a drug, he was off contact visits for 42 days. On 20 April 2021, for stealing, he was confined to his cell for three days. On 6 May 2021, fighting or engaging in other physical combat, he was confined in his cell for seven days.

60. I was asked to look favourably upon the sentence assessment report written for these proceedings on 13 August 2021. Before re‑entering custody, he had been living with his father and sister in the family home at Newtown. He has a close relationship with his father and has a close bond with his mother who lives in New Zealand. He has regular contact with her. He had employment as a personal trainer which apparently has been lost as a consequence of the Covid‑19 pandemic.

61. When I say “lost”, he cannot engage in that work or could not engage in that work, at least while the current lockdown arrangements are in place. His father has indicated he would like the offender to return to work with him.

62. Included in the offender’s bundle, exhibit 1, is a letter from his father, recording that proposition. His father speaks well of him, as one might expect. He speaks of changes he has noticed in the offender’s behaviour over the last few months. This does not sit comfortably with the offences in custody, but that aside, his father describes him as a hard worker who has recently matured into becoming an adult. He has seen changes made to his life and undertaken responsibility for past actions. This observation has changed his father’s mind about believing whether the offender could become a positive member of society.

63. It appears that his father now is of the view, in light of what he sees as progress, that the offender might be a worthwhile member in the community with appropriate support. His father attributes these changes to his enrolment in a program to help with addictions, trying to maintain a healthy lifestyle. He notes the disruption caused by the COVID 19 lockdown to the employment opportunity in the gym. The offender has expressed interests in returning to work with his father and his father writes of his son’s experience in that industry.

64. Risk factors relating to the offending are noted in the sentence assessment report: “History of Antisocial Behaviour” is the heading, the first dot point, “Mr Harris‑Merchant has a pattern of violent and aggressive behaviour which is reflected in his criminal history.” Next dot point, “While still in custody, dating from September 2011 to June 2021, Mr Harris‑Merchant has been punished 29 times for misconduct including acts of violence which appear to be prison‑gang affiliated or, possess drugs, damage‑destroy property and possessing weapons”.

65. I have not referred to the earlier misconduct upon which he engaged when in custody previously. I have only referred to the episodes of misconduct in his more recent incarceration, with reference to the custodial record. Under the heading, “Attitudes”, the following appears, first dot point, “At the time of offending, Mr Harris‑Merchant described that ‘life was good’, he was training at the gym regularly and felt mentally well.” Next dot point, “During interviews, it was difficult to gauge Mr Harris‑Merchant attitudes (sic) as he was unwilling to discuss the nature of the circumstances around the offending, despite considerable probing.”

66. The report then deals with his history of illicit substance use - heroin, cocaine and cannabis; during previous imprisonment, he acknowledged, he was alternating between smoking and injecting buprenorphine. He commenced opioid replacement therapy on 7 November 2019. His attendance was described as regular. He reported no issues or concerns with treatment. It was terminated on 13 October 2020 due to his apprehension. He said he was using Valium on the day of the offence with which I am concerned, as it, “takes away that care”. He is currently on a buprenorphine program and wants to remain abstinent.

67. I have been taken to the aspect of insight on behalf of the offender, but that should be read in conjunction with three passages immediately before that under the heading, “Violence and aggression.” The first dot point,

“The commission of the indexed event is aggressive in nature; Mr Harris‑Merchant did not identify himself as an aggressive person, describing himself as a protective person that stands up for the people he cares about, yet commented further that he always felt he had to prove himself to people by being ‘tough’.”

68. The next dot point,

“During interviews Mr Harris‑Merchant changed his version of the event twice and remained non‑descriptive around the nature of the relationship between parties.” The next dot point, “He downplayed his part by describing hearing a ‘heated argument’,” and then continuing, “with his friend and a stranger and involved himself viewed to being protective and sticking up for his ‘mate’.”

69. The next dot point,

“Records show that Mr Harris‑Merchant’s criminal history and misconduct in custody revolve around violence and aggression including assaults, affrays, robbery armed with offensive weapon and numerous fights or other physical combat while in custody.”

70. Against that, the following is written under the heading, “Responsivity,” and a subheading, “Insight into impact of offending.” First dot point,

“Mr Harris‑Merchant displayed a good level of insight into the effects of his offending as he was able to identify that his behaviour impacted the victim, his family and friends and the people that witnessed the event.” Next dot point, “He mentioned being disappointed in himself and being upset for his action, acknowledged that he did not need to be involved in the altercation and commented that if he did not take the Valium ‘it wouldn’t have happened’.”

71. At this point, I would note, with regard to the Valium, the calming effect of the Valium did not seem to assist the offender in his decision to engage upon the misconduct on this occasion, but in any event, self‑induced intoxication, if it has any connection with the misconduct, is not a factor in mitigation by force of s 21A(5AA) Crimes (Sentencing Procedure) Act 1999.

72. When one looks at the antecedent record and the opinion of it in this report and the custodial record, he is prone to violence without a great deal of provocation, if any. His recognition that what he has done had an impact upon him, his family, and importantly those members of the community who were about at the time demonstrate that he has the capacity to know right from wrong. It still leaves alive a question as to why he embarked upon the misconduct as he did. There could be no justification at all in his decision to run up the set of escalators and strike the unknown victim, so‑called, and then to continue on after him with the two unidentified males after the offender removed his shirt.

73. He is attributed with a willingness to comply with supervision and undertake whatever might be needed to address criminogenic needs. He said he is willing to undertake community service work. With regard to supervision and response to it, it is said that his engagement during the interviews for the preparation of this report was satisfactory, but at times he appeared intentionally vague with information and presented with attitude suggesting institutionalised behaviour. He has been compliant with reporting for supervision in the past, and it does appear he was addressing his substance use with opioid treatment and participation in programs, has good family support and he will have employment. He is assessed as a medium risk of reoffending. A supervision plan is discussed.

74. The offender did not give evidence, and therefore I am left to come to my decision in this matter informed only by representations attributed to him and the objective facts that are before me, both relevant to the offending and his evolution through life to his present stage, including the episodes of misconduct in his past leading to the various forms of conditional liberty that were extended to him but which do not seem to have served their purpose, and his ultimate punishment by way of custodial sentences.

75. I am reminded of the care that must be given to the assessment of what is attributed to an offender in these circumstances by others. This guidance was offered as far back as 2001 by Smart AJ in R v Qutami [2001] NSWCCA 353. Although the representations attributed to an offender by psychiatrists and psychologists are admissible, there is considerable caution required before relying upon them when there is no evidence given by the offender.

76. The caution required was a subject in the judgement of Wilson J in Imbornone v R [2017] NSWCCA 144, which included reference to the decision of Qutami and multiple other authorities, pointing to the hiatus left when an offender chooses not to give evidence in proceedings for the determination of sentence.

77. There is, of course, no obligation upon an offender to do so and the burden is upon the Crown to prove beyond reasonable doubt objective factors pointing to the nature and seriousness of misconduct, whereas the offender can rely upon subjective matters that need only rise to the standard of the balance of probabilities in support of their subjective case. However, it is clear that the Court must exercise appropriate caution when assessing representations attributed to an offender in the absence of evidence given under oath or affirmation and tested by cross‑examination.

78. In this instance, some of the material before me by way of the psychologist reports is to be accepted because, apart from anything else, the Crown has not challenged it. But there are other aspects in the reports that I found of limited weight or assistance. I shall refer to them.

79. The first report by the psychologist was written on 17 August 2020; this was in respect of the proceedings against him in the Local Court at Newtown for the larceny, which led to the conditional release order with which I have dealt. It is interesting to note that there are significant similarities in the opening paragraphs in this report and the later report published for the purposes of these proceedings, consistent with a measure of cutting and pasting, it would appear.

80. I also note that the attendance by the psychologist upon the offender was by way of a telehealth facility, which could have, as I know from my own experiences, only been by way of a telephone call. When a psychologist in those circumstances offers opinions as to the credibility and veracity of assertions made by the subject of the report, one needs to deal with those opinions with an appropriate measure of circumspection.

71. The first report written on 17 August 2020 refers to a complex and clinical history characterised by high levels of anxiety, depression and an overarching substance use disorder. There is no material in either report that gives any factual premise upon which that opinion might be assessed. There is no description that allows the Court to come to a view as to what were the levels of anxiety and depression throughout this young man's life, or what prompted them. These are conclusions expressed by the psychologist, offered simply upon the representation of the descriptions he has adopted.

72. The offender was assaulted in Lithgow Correctional Centre about 2017 when he was said to have been struck by another inmate using a sandwich press. This is said to have caused his jaw to snap, and it is said in the material before me that I will come to, that there was surgical intervention required, including the insertion of a plate, which causes continuing discomfort.

73. I have no material before me other than the bare description offered by the psychologist of what occurred, what event led to the assault, what was the extent of the treatment administered and the sequelae and its assessment, other than, as I have said, in the most general terms provided here. But it must be accepted from the way the case has been presented that he did suffer an assault, and that he did suffer what must have been a significant injury. Whether or not he suffers post‑traumatic stress disorder as a result, I simply cannot find. The material before me does not allow me to do so. There is no basis upon which the suggested diagnosis is made, and it doesn't sit comfortably at all with the conduct upon which the offender engaged on this day, as described in the agreed statement of facts.

74. The report is focused upon an outcome using s 32 Mental Health (Forensic Provisions Act) 1990, which provides for a diversionary program for those who have mental health issues that might be dealt with by way of a treatment plan. The magistrate appears not to have been persuaded to employ that provision and chose the course of the conditional release order, to which I earlier referred.

75. There is a history of his social upbringing, his family structure, with two brothers and two sisters, two of siblings and two half siblings born to his mother. He has positive relationships with his siblings, and it appears positive relationships with his parents.

76. There is reference to his employment with his father, his education at Newtown School of Performing Arts where he reached year 11 before he embarked upon work in the construction industry with his father. There is reference to his work in the local gymnasium after completing a 10‑week program online to become a fitness instructor.

77. The report continues with his drug, alcohol and psychological history. It includes the following, “Mr Harris‑Merchant stated that he has suffered a substance use disorder since about the age of 13 years.” I would be most surprised if the offender expressed himself in those terms. The history attributed to him then includes smoking cannabis for about 12 months. He ceased use of that because of the impact upon his motivation and energy levels. At 17, he began using methylenedioxymethylamphetamine. He took that on five occasions. Then after that, he resorted to cocaine and heroin. He said he took heroin to suppress this anxiety and cocaine to bolster his energy levels.

78. There was a major overdose of cocaine, the report continues, “resulting in him being observed in casualty at the Royal Prince Alfred Hospital for a period of three years”. I just don't understand that. There must be some typographical error, I would think, with regard to that specification of time. He said, at that stage, he used about a gram of the drug. His father apparently found him and took him to hospital, and he ceased using cocaine from that time onwards, demonstrating capacity to abstain from it, if that was a correct representation.

79. He was less successful in relinquishing heroin. He said that alleviated his anxiety. He said he was diagnosed with social anxiety at the Baxter Juvenile Detention Centre when about 15. There is nothing before me to show when that occurred or by whom, or upon what premise. He spoke of experiencing high levels of panic with shortness of breath and fear. He said heroin numbed his thoughts. It took the panic away. It made him feel normal.

80. At the time of this report, he was being treated with methadone. He spoke of long‑standing symptoms of depression, anxiety and low self‑esteem, which the psychologist suspects date back to his adolescent years. That is a rather imprecise description, and the report provides no analysis upon which one could conclude the veracity of the history as reported by the offender to the psychologist.

81. There is reference to his attack at Lithgow Correctional Centre and the procedures that followed. Here, it is said that he was a victim of gaol politics, persecuted because of his Christian faith. There is reference to flashbacks, hypervigilance, and loss of trust in others, an escalation in anxiety and a sense of despair regarding his future, none of which sits comfortably with the conduct with which I am concerned.

82. He is fearful, at the time of this report, of being referred to gaol. He thinks about the altercations. There has been no treatment for the trauma. There is reference to a mental health care plan, which he is in the process of obtaining. From where, is not disclosed. There were no indications of major psychiatric disturbance.

83. He was submitted to the Beck Depression Inventory, and by telephone, it must have been a difficult exercise, I would have thought. This is a self‑reporting questionnaire which canvassed the psychological symptoms of depression and anxiety, which gave the clinical impression of a depressive disorder. The psychologist said that in some ways he was minimising the intensity of his symptoms. I don't know what the basis is for the psychologist coming to that view.

84. The report then continues with reference to the application of s 32 Mental Health (Forensic Provisions) Act, and then I come to the report prepared for these proceedings.

85. He reviewed the offender on 21 April 2021. This is described as the first review. The report is inaccurate in that this refers to his earlier Court appearance in which he was fortunate enough to be granted a s 32 disposition on the basis of his well‑entrenched psychological problems. This was not the outcome.
    Treatment had not been instigated at the time of the misconduct and his arrest on this occasion. There is reference to his taking of Valium, which, as the psychologist notes paradoxically, would sedate a person. It appears not to have worked in this case.

86. In this report, the offender is attributed with a description of having seen a heated argument between a friend of his and an unidentified male. There was another mutual friend standing close by who did not become involved. As the escalator proceeded to the top, the offender said he saw the victim threatening his friend and challenging him to “have a go”. He said that the individual was fitter and more confident than his mutual friends, and he feared that they were going to be severely injured. This is not advanced, as I understand matters, as conduct offered in defence of another, and clearly it could not be sufficient to achieve that goal if it was pursued in light of the description of what occurred with the offender taking his shirt off, going after the victim and engaging with the victim with the offender’s two unidentified companions.

87. He is attributed with the following,

“Initially he had hoped to stop an escalating situation but conceded regrettably, that his actions in fact caused the matter to escalate. At that point he felt he could not extricate himself without looking foolish.”

98. This does not sit comfortably with the description of the event as summarised, noting again, his removing his shirt, following the victim down the escalator as he retreated, and in company with the two unidentified males engaging in the attack. The victim, he said, was a willing participant until the end. I have no difficulty coming to the finding that the victim did participate in the fight and continued with at least argument with the offender and the other two when he, in good sense, should have continued in his effort to retreat from the circumstances.

99. The offender was using heroin and Valium on a daily basis at the time of this event, according to this report. There's an explanation for the limited impact of Valium because of his high level of anxiety and associated desensitisation to benzodiazepine. He was using up to 15 Valium per day in addition to half a gram of heroin. It is said this reflects the intensity of his problems. He was injecting heroin.

100. Self‑induced drugs offered to explain misconduct is not a matter available in mitigation. Nor is there any evidence before me to explain why he has become a drug user, in other than the most general terms, without any adequate assessment of whatever anxiety or depression or the reasons for it there might have been.

101. He is attributed with regret for his behaviour. He can only see his family via video because of the current difficulties, but they remain supportive. He had made progress with regard to his drug treatment in custody and as I understand this, he is abstinent and has been abstinent, although there is the drug possession charge that he had whilst in custody to which I have referred. But the report asserts that he is now drug‑free on remand, with the renewal of motivation to undertake his treatment.

102. It’s said he has had no psychological treatment in custody, and the opinion continues in this report with reference to a s 32 bond, which is an inaccurate description.

103. There is reference to him struggling to manage his environment and the compounding issues referable to ongoing drug use involving benzodiazepine and heroin, in addition to cocaine, so it is said. This period of custody has been a circuit breaker, it is said, and he has been drug‑free since incarceration and is now focused on physical and mental health.

104. There is no material before me, other than the two reports from the psychologist. Without any of the facts which the psychologist would advance demonstrated in other material or other sources, I attribute little weight to what the psychologist has suggested. It is apparent, though, and I accept that the offender does have his difficulties, whatever they might be, and for whatever reason not demonstrated adequately in the material before me.

Consideration

105. I have written submissions from both parties; I agree that this is below mid‑range, but not as low as has been said on behalf of the offender. I do not accept the submission that an order other than a sentence of imprisonment is appropriate. I am satisfied that the offence has crossed the threshold in s 5 Crimes (Sentencing Procedure) Act 1999.

106. I am not satisfied that there are longstanding serious psychological issues. Everything depends upon what was represented to the psychologist, including what I suggest is an inappropriate way to administer the psychometric testing that was used. He did suffer an attack in jail, the precise nature of which is difficult to ascertain, but I accept in the general description given it is what occurred, and that there was some impact as a result of it, but it has not discouraged him from engaging in violent behaviour when the mood has taken him, as indicated in the present event.

107. The Crown has reminded me of the purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act 1999. The Crown submits that I would be guarded about his prospects of rehabilitation. I am guarded, I might say, but I am prepared to find that he is capable of rehabilitation and that he has some prospects demonstrated in what he has been able to achieve thus far since his release to parole. He was for some time in the community before he found himself again before the courts. He has, if the material before me is accurate, demonstrated that he can address his misuse of drugs. He did so with cocaine, notwithstanding the ultimate comments by the psychologist, and he has it appears in his recent incarceration been able to address the misuse of the other drugs that he was taking at the time of misconduct. His expressions of remorse are qualified. I am not satisfied that he has met what is a requirement in respect to that as specified in s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Representations attributed to him suggest that he was at least in part acting in defence of his friends when the facts as described do not support that proposition.

108. I am reminded of the principle of totality and I have brought that to account. The Crown does not concede that there are special circumstances. I differ with that. In my view there are special circumstances. There is, at his age, and with his history, the risk that he could become at least to some extent institutionalised and for that reason I reduce the custodial component of this sentence bringing to account his current sentence served by way of the balance of parole. I accept that he does need an extended period on parole to be supervised, hopefully to achieve the same success when he was released on parole on the last occasion.

The Sentence

109. As to the imposition of sentence, I have already made orders with regard to the larceny offence, breached by this further misconduct. I have applied a discount 25% onto the sentence I would have otherwise imposed and the sentence imposed today will commence on 12 April 2021.

110. The offender is convicted. I impose a non‑parole period of 1 year, commencing 12 April 2021 to expire on 11 April 2022. I specify a further period of imprisonment during which he shall be released on parole. That is of 1 year and 4 months. That will expire on 11 August 2023.

111. I will repeat that. The sentence is overall one of 2 years and 4 months, commencing 12 April 2021. He is to be released on parole at the expiration of the 1 year non‑parole period on 11 April 2022 and thereafter, will be subject to parole for a year and four months until 11 August 2023.

112. I shall leave the exhibits on file until such time as the parties might require.

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Decision last updated: 22 September 2021