R v Heath Innis Martin

[2018] NSWDC 388

District Court

New South Wales

Medium Neutral Citation:	R v Heath Innis Martin [2018] NSWDC 388
Hearing dates:	5 December 2018
Decision date:	07 December 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [59].
Catchwords:	Recklessly cause grievous bodily harm.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
Cases Cited:	R v Kirkland [2005] NSWCCA 130 R v Lullum (2016) 263 A Crim R 287
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Heath Innis Martin (Offender)
Representation:	Counsel: C Todd (Crown)   Solicitors: M Hempsall (Offender)
File Number(s):	16/345330
Publication restriction:	Nil

REMARKS ON SENTENCE

1. The offender has pleaded guilty to an offence of recklessly causing grievous bodily harm pursuant to s 35(2) of the Crimes Act 1900. The Crown has accepted that plea in full answer to an Indictment on which that charge was an alternative to Count 1.

2. The maximum penalty for the offence is 10 years imprisonment, and there is a Standard Non-Parole Period of 4 years imprisonment.

3. The offender has also been charged with, and entered pleas of guilty to, three charges on a certificate pursuant to s 166 of the Criminal Procedure Act 1986, namely:

H62835147/2 – Stalk/intimidate intend fear physical etc harm

H62835147/3 – Stalk/intimidate intend fear physical etc harm

H62835147/4 – Threaten to destroy or damage other persons property

The sentence hearing

4. The sentence hearing took place on 5 December 2018. The Crown Sentence Summary became Ex A and it contained an Agreed Statement of Facts, which may be summarised as follows.

5. On 3 November 2016, the offender was working interstate. While he was away, someone broke into his garage at premises at Lake Tabourie and stole his quad bike. The offender suspected a young person, TW, who apparently had been seen riding it and admitted knowing that it was stolen. The offender reported the matter to police, however, he was dissatisfied with the police response. TW was the 14 year old son of Ms B-J Davis, who was temporarily staying with her mother, Mrs Kay Taylor at Lake Tabourie. The offender and Mrs Taylor were known to each other.

6. On 17 November 2016, shortly after 7pm, the offender drove to Mrs Taylor’s home. A silver Toyota Corolla was parked in the carport, and a lime green Holden Commodore was parked directly behind it. This vehicle was owned by Ms Davis. The offender parked his vehicle just inside the front boundary. He placed a black petrol container and an oxy-acetylene torch with a yellow gas bottle on the bonnet of his car. Mrs Taylor walked out of her premises and met the offender. He said aggressively, “Get the cunts out here now”. Those facts support sequences 2 and 3 on the s 166 certificate of stalk/intimidate intend fear physical etc harm. Ms Davis and TW came out of the house and an argument ensued over who stole the offender’s quad bike. During that argument, the offender grabbed the container with petrol and said to Ms Davis:

“How would you like it if I damaged your property?

…

He fucked my stuff, so I’ll fuck your stuff.”

This is the conduct that supports sequence 4 on the s 166 certificate of threaten to destroy or damage other persons property.

7. The offender then swung the container in a “jerking motion”, causing petrol to splash over the back of the victim’s car and also on her arms and legs. The victim pleaded with the offender, “No, no not my car, I need it, I’m living out of it at the moment”, and she told TW to run away. The offender, who was a metre from the victim, put his right arm out. The victim put her arms up to defend herself and lunged at the offender. At the same time she heard a distinctive “click” noise, similar to an electric starter for a barbeque lighter. The offender said, “Oh why did you do that for you fucken idiot”.

8. The petrol ignited with a large flash of fire and an explosion. As a result, the petrol can went flying through the air and landed in the garden. The victim caught on fire and immediately stepped to the grass and dropped to the ground in an attempt to extinguish the fire. The offender tried to extinguish the fire and then yelled, “Get her under water” to Mrs Taylor.

9. Mrs Taylor then assisted the victim into the house and into the shower, where she ran cold water over her. During this process, the skin on the victim’s face, shoulder, arms and back was falling off. She was in pain and shaking with shock. The victim passed in and out of consciousness.

10. The offender attempted to put out the fire which had spread to a grassed area neighbouring the left hand side of the property. He was observed to be crying and hysterical.

11. Police responded to the accident and attended the premises. The victim was airlifted directly to Royal North Shore Hospital, sustaining deep skin burns of full thickness to 41% or more of her body and face.

12. The offender was also treated for burn injuries and transported by ambulance to Shoalhaven Hospital for treatment.

13. On 18 November 2016, the victim was placed into an induced coma and was in a critical but stable condition. She sustained 41% total body surface area burns, the results of which are deep circumferential burns to her left arm requiring escharotomies. She spent 22 days in North Shore Hospital Burns Unit and underwent nine operations. The burn injuries have left residual scarring to parts of the victim’s body and parts of her face.

14. Exhibit A also included the criminal antecedents of the offender. They included two offences of dishonesty in 1996 and 2000, and a further offence of break and enter dwelling house within intent to steal in 2008, for which, on 10 August 2009, he was sentenced by way of a s 9 bond for a period of 2 years and fined $1,250.00.

15. Exhibit A also included photographs of the victim’s scarring to over 40% of her body, including her left arm, left shoulder, left side of her face and neck, left scapula region, left hand and both legs and feet.

16. The Crown relied on a Sentencing Assessment Report under the hand of Ms Jessica Snell-Anderson dated 22 November 2018 (Ex B). The report set out the offender’s employment as a fly-in fly-out worker within the mining industry over the last 10 years. He has been off work for six months awaiting the outcome of these proceedings. The author noted he was described as an exceptional employee by his employer, and an asset to the company that employed him.

17. The report’s author characterised the offender’s criminal antecedents as a limited criminal history. Under the heading, “Attitudes”, the author noted:

• “Mr Martin reported he was fixated on the theft of the quad bike for three weeks prior to the offence and felt animosity towards the victim’s son for the theft.

• Mr Martin recounted that he confronted the victim as he was dissatisfied with the police response to the theft of the quad bike.

• Mr Martin accepted responsibility for his actions and reported being immediately horrified by his behaviour and its consequences.”

18. The offender acknowledged that anger and his inability to control such emotions was a contributing factor to his offending behaviour. He was not generally a violent person.

19. Under the heading, “Insight into impact of offending”, the offender acknowledged the harm he had caused to the victim, her family and his own family. He recognised the impact on the community and expressed an understanding of the fear that his behaviour may invoke. The offender was remorseful for his actions, stating that he would like to apologise to the victim for the trauma he has caused. He did express an understanding of the steps he should have taken to resolve his concerns, such as seeking legal advice or speaking with the police.

20. Since the offence, the offender has engaged the services of a psychologist due to a decline in his mental health. A mental health care plan has been prepared, targeting depression and impulse control.

21. The offender was assessed as a low risk of re-offending and therefore if a supervised order was made, Community Corrections would suspend any supervision. He was otherwise assessed as suitable to undertake Community Service work of up to 7.5 hours per month due to his work schedule.

The offender’s evidence

22. The offender tendered a report under the hand of Ms T Vegelin dated 30 November 2018. Ms Vegelin is a psychologist. She first saw the offender on 15 December 2016, and they had regular sessions until August 2017, when the offender moved back to New South Wales from the Northern Territory. His treatment was re-commenced on 4 October 2018 by telephone. He has attended 13 sessions over the course of 23 months. The report sets out the offender’s background history which included a history of substance abuse in his early 20’s, by drinking alcohol excessively. He first presented to the author following the offence and reported feeling daily waves of guilt and shame for the hurt that he had caused the victim. He reported the following symptoms – depressed mood, depersonalisation, guilt, distress, agitation, nightmares about fires, intrusive memories of the event, insomnia, hypersomnia, somatic complaints, restlessness, decreased libido, low motivation, forgetfulness and concentration difficulties.

23. During the course of his treatment the offender had reported suicidal ideation, however, he also reported he had no intent or plan to take his own life. He frequently expressed guilt, regret and disappointment for his actions.

24. On psychometric assessment the offender showed clinical elevations on depressive, defensive avoidance and disassociation. He was assessed as suffering moderate symptoms of depression, anxiety and stress in December 2016, however, in October 2018, he was assessed as suffering severe depressive symptoms, mild anxiety symptoms and extremely severe stress symptoms. The author confirmed that his symptoms met the DSM-V criteria for Major Depressive Disorder. The symptoms also met the DSM-V criteria for Post-Traumatic Stress Disorder (“PTSD”).

25. Given his ongoing depressive and PTSD symptoms, the author recommended that the offender continues to engage in regular psychology sessions.

26. The offender also tendered a bundle of documents which became Ex 2. It included a letter from the offender expressing his sincere apologies for committing the offence which led to the victim’s terrible injuries. In that letter, he expresses disappointment in himself for causing the victim so much pain and suffering. He states that it was never his intention to hurt anyone and that he understands how terrifying it must have been for the victim’s son to witness what happened. He states that he is truly sorry for his offending. Also in Ex 2 is a photo of the offender in hospital showing burns to his left hand and arm. Exhibit 2 also includes six testimonials from people including the offender’s neighbour, his ex-partner and employer. All the authors of those testimonials acknowledge that they have read the facts sheet and his criminal history. They speak highly of his character as a family man, a contributor to his community and a trusted employee.

The Crown submissions

27. The Crown submitted that the facts demonstrated that the offender took the law into his own hands by causing petrol to go over the victim’s body and car, and then to ignite it, demonstrating a high level of recklessness. For an offence pursuant to s 35(2) of the Crimes Act 1900, it was extremely serious offending, characterised by the Crown as being above mid-range, having regard to the serious injuries suffered by the victim, the consequences of his actions and the fact that it was unprovoked. Aggravating factors were that the offending occurred in the home of the victim and in the presence of her child.

28. A further aggravating factor was that there was some planning involved, which is reflected in the Statement of Agreed Facts.

29. The Crown acknowledged that there were subjective factors to be taken into account and that the offender had demonstrated some remorse. However, he had not given sworn evidence to support the remorse reported by the psychologist in Ex 1, or the testimonial writers in the documents contained in Ex 2.

30. The Crown submitted that the offender had entered a plea of guilty to the alternative charge on the Indictment after he had been committed for trial and before his second trial had commenced. However, as negotiations had been going on for some time, the utilitarian discount was somewhere between 10 and 20%.

31. The Crown submitted that general deterrence and specific deterrence were important in the sentencing process here, where the offender had taken the law into his own hands and a clear message must be sent to the community that condign punishment will follow such offending.

32. It was submitted by the Crown that the s 5 threshold had been met and that the only appropriate penalty to be imposed was a sentence of full time custody.

The offender’s submissions

33. In respect of the plea of guilty, it was submitted that the offender’s offer to plead guilty to the alternative charge had been made in March 2018, shortly after he obtained legal representation. Notwithstanding that the Crown agreed to his offer at a later time, it was submitted that the appropriate range for discount was between 15 and 20%.

34. It was submitted that it was not an aggravating factor here, pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”) that the offending occurred in the home of the victim because it had happened in the front yard of the premises. This submission was later withdrawn.

35. The offender acknowledged that there was some degree of planning involved in that he had arrived at the premises with the petrol and the igniter.

36. In assessing the objective seriousness of the offence, the offender submitted there were three main factors to be taken into account:

1. The extent of the victim’s injuries.

2. The degree of violence.

3. The mental element of the offending.

37. In respect of the victim’s injuries, it was significant that the victim had spent 22 days in hospital. It was submitted that, although there was a degree of scarring to the victim’s body, “mercifully there was minor scarring only to the face on her left cheek”. It was further submitted that the victim had suffered no loss of function. As grievous bodily harm covered a very wide range of injuries and it was not in dispute that the victim had suffered really serious injuries here, it was submitted that the injuries were in the middle of the range for such an offence, referring to R v Kirkland [2005] NSWCCA 130 at [33].

38. In assessing the objective seriousness of the offending, not only were the consequences to the victim a factor, but also the acts of the offender should also be considered here. His actions were not a direct attack on the victim’s body, rather, they were directed at her car. It was an unintended accident that petrol splashed back, on the victim, and there was no evidence that he realised that had occurred. Finally, the offender had no intention of any harm or injury to the victim at all.

39. It was submitted that this was unusual offending in that it was not the product of an assault. Here, the offending was directed towards damaging the victim’s property. Whilst it was conceded that the offender must have realised there was a risk of harm to the victim, that was different from him deliberately trying to harm her. That was supported by the conversation that had taken place when the victim had said, “No, no not my car”.

40. It was submitted that the facts bespeak a high degree of recklessness, however, a low degree of intention to inflict violence on the victim.

41. Further, it was submitted that the immediate response of the offender was instructive, namely, he was surprised, he immediately tried to help by advising Mrs Taylor to get the victim under cold water, and further, had tried to put the fire out. At that time he was observed to be crying and hysterical. It was submitted that this was consistent with an immediate remorse and concern for the victim, together with surprise at what had happened. It should also be taken into account that the offender also suffered significant injury to his left arm and hand.

42. The offender submitted that the following subjective factors should be taken into account. He was a 41 year old man with three children, and had a good relationship with his ex-partner. He provided a supportive role to his ex‑partner and as the testimonials set out, he was clearly a person of good character and had provided assistance to other members of his community. Having regard to those testimonials, it was submitted that the offending was totally out of character for him.

43. It was further submitted that he had expressed significant remorse as identified throughout the evidence. That was evidenced by his immediate response, his offer of assistance and the testimonials, as well as what he had told the psychologist.

44. Further, Ex 1 demonstrated that the offender suffered from PTSD and depression, and was taking medications for both conditions. The offending had absolutely left its mark on him and he had demonstrated empathy and concern for the victim. According to the Sentencing Assessment Report, he had a positive response to the offending and took responsibility for his criminal conduct. He had both insight into the offending and acknowledged the harm caused to the victim. The court would therefore find that he was, as assessed by the author, a low risk of re-offending and that he had good prospects of rehabilitation. Therefore the need for protection of the community in the sentencing process was lessened.

45. The offender submitted that a finding of special circumstances should be made pursuant to s 44 of the CSPA. This would be the first time in gaol for the offender and he was suffering mental health issues of depression and PTSD. Given the content of the psychologist’s report as to self-harm, his family have been a protective factor whilst he was at liberty, which would not be present in custody. Therefore the court should make a finding of special circumstances.

Crown submissions in reply

46. The Crown did not dispute the finding of special circumstances, however, the Crown submitted that the offender would receive appropriate treatment from Justice Health whilst in custody.

Determination

47. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

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

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

48. The objective seriousness of the offending here has to be assessed both by taking into account the injuries received by the victim to the crime, and the circumstances of the offending. I accept the Crown’s submission that there was a high level of recklessness involved in the offending here. The offender had gone to the premises of Mrs Taylor with a can of petrol and a device to ignite it. He had taken the law into his own hands, having been dissatisfied with the police response to his complaint that TW was responsible for stealing his quad bike. I am satisfied that the offending occurred in the home of the victim, i.e. on the driveway of the premises, and that was an aggravating factor pursuant to s 21A(2)(eb). The offence involved a violation of the victim’s reasonable expectation of safety and security in her own home – see R v Lullum (2016) 263 A Crim R 287 at [25].

49. It was also an aggravating factor that the offence was committed in the presence of the victim’s child, pursuant to s 21A(2)(ea). A further aggravating factor was that there was some planning involved, pursuant to s 21A(2)(n).

48. The extent of the victim’s injuries is a relevant factor here. She suffered burns to 41% of her body, with gross scarring, as set out above. She was hospitalised for 22 days and underwent nine operations. I do not accept the offender’s submission to the effect that mercifully she only suffered minor scarring to her face or left cheek. Whilst she did suffer no loss of function, there is no medical evidence to assess the full extent of her injuries and the affect they have had on her. Having regard to all of the above factors, I find that the objective seriousness of the offending fell well within the mid-range for an offence pursuant to s 35(2) of the Crimes Act 1900, and towards the higher part of that mid-range.

49. I accept the Crown submission that general deterrence and specific deterrence are important in the sentencing process here. A clear message must be sent to like-minded members of the community that they cannot take the law into their own hands and meter out punishment to others in respect of perceived crimes or indiscretions. There were a number of avenues open to the offender here to have recourse to rather than act in the way he did. It was his inability to control his anger in response to a minor neighbourhood event, which he has acknowledged, which gave rise to this offending. Specific deterrence is important in that the offender must understand that the community will not abide such reactions.

50. I accept that the offender is entitled to a discount on sentence in respect to his plea of guilty, which was not entered at the earliest possible opportunity. I note that shortly after he was legally represented, a plea offer was made which took some time for the Crown to accept. In those circumstances, I intend to allow a 20% utilitarian discount on sentence in respect of the offender’s plea of guilty. Whilst that plea of guilty may also indicate some remorse and contrition, the offender has not given evidence and I therefore approach his expressions of remorse, both to his psychologist (in Ex 1), in his own letter to the court (Ex 2), and to the writers of the testimonials tendered on his behalf (Ex 2), with some caution. An important subjective factor is that he has sought psychological treatment from shortly after the offending and has continued that treatment, albeit with a break when he moved interstate, for a period of almost two years.

51. I further accept that upon realising what had occurred, the offender did show some concern for the victim, advising Mrs Taylor to get her under cold water, and that the offending involved a high degree of recklessness, but no intention to directly harm the victim. I do not accept the offender’s submission that the remorse demonstrated by the evidence could be characterised as “significant”, however, I accept that the offender is remorseful for his actions and has displayed some empathy for the victim.

52. I further accept that he displays symptoms of PTSD and depression, and has been treated for those conditions. However, he has not been under the care of a psychiatrist to date. Notwithstanding that, I accept that he does have insight into his offending and has acknowledged the harm caused to the victim and can be properly assessed as a low risk of re-offending. His previous criminal antecedents are offences of dishonesty and he has no previous offences of violence. His record therefore does not disentitle him to some leniency in the sentencing process. I find that he has good prospects of rehabilitation ultimately, provided he remains under qualified care.

53. The maximum penalty of 10 years imprisonment and Standard Non-Parole Period of 4 years imprisonment are guideposts in the sentencing process and must be taken into account.

54. I find that there are special circumstances established here pursuant to s 44(2) of the CSPA. This will be his first time in gaol, and he has mental health issues for which he requires ongoing treatment. There is insufficient evidence for any finding that a custodial sentence would amount to exceptional hardship for him. He will be entitled to treatment by Justice Health.

55. Having regard to the objective seriousness of the offending, the aggravating factors and subjective factors set out above, I find that the threshold in s 5 of the CSPA has been met, and having considered all possible alternatives, no penalty other than imprisonment is appropriate in the circumstances here. The offender, by taking the law into his own hands, acted highly recklessly and caused the victim very severe bodily injuries, by which, she will be scarred over 40% of her body for the rest of her life. Pursuant to s 29(3) of the CSPA, the absence of a Victim Impact Statement here does not give rise to an inference that the offence had little or no impact on the victim. It is patently clear that the impact of her injuries, and her subsequent hospitalisation, treatment and recovery, would have had a profound impact on the victim and will continue to do so.

56. I intend to sentence the offender to a term of imprisonment of 2 years and 8 months, with a non-parole period of 1 year and 6 months. As the offender spent two days in custody following his arrest, the non-parole period will commence on 5 December 2018 and terminate on 4 June 2020. The balance of term of 14 months will terminate on 4 August 2021. In respect of the three offences set out on the s 166 certificate, namely, sequences 2, 3 and 4, I intend to proceed pursuant to s 10A of the CSPA in respect of each offence by finding a conviction without imposing any further penalty. All of that offending arises from the same course of conduct.

Orders

59. I make the following orders:

1. You are convicted of the offence of recklessly cause grievous bodily harm pursuant to s 35(2) of the Crimes Act 1900.

2. I sentence you to a Non-Parole Period of 18 months commencing on 5 December 2018 and terminating on 4 June 2020.

3. The balance of term of 14 months will commence on 5 June 2020 and terminate on 4 August 2021.

4. Your parole eligibility date will be 4 June 2020.

5. In respect of the three offences on the s 166 Certificate, namely sequences 2, 3 and 4, you are convicted of each offence, however I impose no further penalty pursuant to s 10A of the CSPA.

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Decision last updated: 13 December 2018