R v Histon

[2020] NSWDC 700

District Court

New South Wales

Medium Neutral Citation:

R v Histon [2020] NSWDC 700

Hearing dates:

02 November 2020

Date of orders:

02 November 2020

Decision date:

02 November 2020

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Term of imprisonment of 3 years 2 months with a non-parole period of 2 years 1 month

Catchwords:

CRIME — Violent offences — Recklessly cause actual bodily harm

SENTENCING — Penalties — Imprisonment

SENTENCING — Sentencing procedure — Expert reports

SENTENCING — Subjective considerations on sentence — Special circumstances

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

DPP (C’th) v DeLaRosa [2010] NSWCCA 194

Muldrock v The Queen [2011] HCA 39

R v Presser [1959] VR 45

Tepania v The Queen [2018] NSWCCA 247

Veen v R(No. 2) [1988] HCA 14

Category:

Sentence

Parties:

Regina (Crown)
Thomas Victor Histon (Offender)

Representation:

Heidi Cantor (Crown)
Sharon Ramsden (solicitor for the Offender)

Director of Public Prosecutions (NSW) (Crown)
Marsdens Law Group (Offender)

File Number(s):

2018/00329670

REVISED EX TEMPORE JUDGEMENT

Introduction

1. Thomas Victor Histon pleaded guilty in the District Court in Sydney on 4 September 2020 to a charge contrary to s 35(4) Crimes Act 1900 expressed in the following terms: that he on 27 October 2018, in Surry Hills in the State of New South Wales, did wound [the victim] and was reckless as to causing actual bodily harm to [the victim].

Penalty

2. The maximum penalty to which he is exposed is imprisonment for seven years with a standard non‑parole period of three years for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999. The maximum penalty and the standard non‑parole period are benchmarks that the Court must bring to account in the assessment of sentence, when the Court is faced with a charge for which there is a standard non‑parole period.

3. The relevant provisions are found in Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999 in their present form following the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39.

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

5. The objective gravity for this offence will be assessed on consideration of the objective features of the event that affect the relative seriousness of the offence without reference to matters personal to the offender or class of offender.

6. The principles have been discussed in some detail by Johnson J in Tepania v The Queen [2018] NSWCCA 247. His Honour at para [110] summarised the provisions to which I referred, and then spoke to the Second Reading Speech delivered by the Attorney General upon the presentation of this legislation to the Parliament. His Honour made reference to the explanatory memoranda, and then at para [112] noted that when sentencing for an offence, whether a standard non‑parole period offence or not, the Court must make an assessment of the objective gravity of the offence, applying general law principles, so that all factors that bear upon the seriousness of the offence are taken into account unless excluded by statute. Motive, provocation or non‑exculpatory duress may be taken into account in this way, and matters that are personal to the offender that are causally connected or materially contributed to the commission of the offence are also relevant. These include a mental disorder or mental impairment.

7. His Honour then referred to the recognition by the common law that motive or emotional stress which account for criminal conduct is always material to the consideration of an appropriate sentence. His Honour discussed Veen v R (No. 2) [1988] HCA 14 and the significance of a mental abnormality that might diminish moral culpability, whereas an antecedent criminal history might also illuminate the extent of moral culpability in the conduct which is under consideration by the Court.

8. It is the fact that this offender unfortunately has his challenges in life as a consequence of a brain injury suffered in a motor vehicle collision to which I shall make further reference in due course.

9. The Crown concedes that there are no aggravating factors to be drawn from s 21A Crimes (Sentencing Procedure) Act 1999.

Objective Seriousness

10. Bringing together those various principles to which I have referred, including the guidance provided by Johnson J, I agree with the Crown’s submission that the objective gravity of this offence falls below the mid-range of objective seriousness.

Pre-Sentence Custody

11. When all of the material that is before me is synthesised, I agree with the submission made on behalf of the offender, and with which the Crown does not cavil, that he has all but completed the custodial component of the sentence to be imposed.

12. He has been in custody since the date of the offence, 27 October 2018, a period as of today of two years and seven days. I propose at the end of this judgement to announce sentence, including a non‑parole period of two years and one month.

The Plea

13. The offender pleaded guilty at the earliest opportunity and accordingly upon the application of s 25D(5)(a) Crimes (Sentencing Procedure) Act 1999 he has a total discount of 25% for the utility that the plea of guilty has provided.

14. I note that he has this benefit attaching, notwithstanding that he was committed for trial from the Local Court in Central on 7 March 2020, for there were questions as to his fitness to plead. These were ultimately investigated and in due course, after appropriate negotiations, a plea of guilty was entered to the current charge, which the Crown accepted in satisfaction of the indictment containing a more serious offence than this present offence, charged in the alternative. I agree with the decision made by the Crown to accept that plea and follow that course.

The Facts

15. The facts are set forth in the agreed statement included in the Crown bundle, supplemented by the video recording which captured the offender in the conduct with which he is charged. It was but momentary when he struck his victim with broken glass, causing lacerations to her hand, but it was a particularly violent blow when one observes those images clearly demonstrating the level of seriousness of the misconduct upon which he engaged.

16. He was resident at a lodge which provided accommodation in Bourke Street, Surry Hills, about 250 metres south of Taylor Square. The verandah of those premises connects onto Bourke Street. He moved into the lodge in October 2018. The victim was a former resident; she moved out in June 2018. The victim and the offender did not know each other. Although she had already moved from the building, she would sometimes return to the lodge and was depicted in the closed-circuit television footage seated on the verandah smoking when the offender came to the location and is seen to walk onto the verandah and strike at her in the direction of her face.

17. The facts describe that event in some detail. About 1.33am on the date of the offence, 27 October 2018, she was sitting and smoking on the verandah at the lodge. The offender entered the verandah from Bourke Street; he approached the window of the lodge reception and spoke to the staff. He spoke in an aggressive manner. He said words to the effect, “I want my money back...I am going to get him...I’m going to stab someone...I’m going to gut this cunt.” He appeared to be holding a piece of broken glass in his right hand. He was swinging the glass around.

18. The staff called the triple‑0 emergency line and whilst they did so the offender approached the victim, who was still seated on the ground. Without any provocation he swung his right hand and struck the victim’s left hand with what he later admitted was a broken glass bottle. He then walked to the rubbish bin. He took the metal lid off the bin and threw it toward the victim. This almost struck her; it landed on the ground. He is then depicted throwing items from the bin and casting them around on to the surrounding ground.

19. She was in shock when this occurred to her. She saw that she was bleeding profusely and that there was a piece of glass protruding from her left hand. She approached the window and announced what had happened to her. After the offence the offender left the verandah and walked towards Taylor Square.

20. Police and ambulance arrived. She was taken to St Vincent’s Hospital and treated. He was stopped and arrested at Taylor Square. A broken glass bottle was seized by the Crime Scene Unit. The offender was taken to Surry Hills Police Station. When sitting in the dock he appeared to be speaking with himself. He was heard to say,

“You give me some fucking money, bitch, but I got no money, so I broke the bottle and it was like this big. Oh, he means business. You’re an idiot. Do you understand English? I stabbed her in the fucking...”

21. He participated in an electronically recorded interview. He appeared confused when he was confronted with having swung the bottle. The offender interrupted the Officer and replied,

“I didn’t swing the bottle, I fucking stabbed her in the fucking face with it, straight up, hello, look, you fucking idiot, oh.”

22. The very description of the event and his response to it when confronted by the police indicates a troubled state of mind.

23. The victim was examined by a doctor at the hospital. She had two deep lacerations to her left hand; one wound was 5 centimetres x 2 centimetres to the hypothenar eminence located at the base of the little finger, through the dermis. The other injury was 1 centimetre long to the proximal fifth digit. Treatment included superficial cleaning and dressing, with referral to the hand hospital. There is nothing to indicate what sequelae followed or what further treatment was required.

The Offender

24. The offender was born in 1968 and is now 52 years of age. He has a record of antecedents extending over eight pages. These include charges of malicious injury, obtaining benefit by deception, cultivating a prohibited drug, street offences, damage to property by fire, driving furiously a motor vehicle causing bodily harm. In respect of that offence he suffered imprisonment for a period of 12 months including a non‑parole period of three months. On appeal the conviction was confirmed but in lieu of a sentence he suffered a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 for a period of 18 months.

25. There are other offences of possess a prohibited drug, damaging property, street offences, breaching a recognisance, larceny, assault occasioning actual bodily harm for which he was sentenced to imprisonment, which was suspended pursuant to s 12 Crimes (Sentencing Procedure) Act 1999, imposed in February 2017. It therefore had expired by the time of this offence.

26. There is an offence of committing an act of indecency with a person of 16 years or over. There are four counts. He was given a suspended sentence for each of those charges. There are offences recorded against him in Queensland which resulted in probation it appears under their system in that state, and an offence in the ACT for which he was fined, a matter that is of modest significance.

27. There is a wealth of material in the case tendered on behalf of the offender. This begins with a report from Dr Gerald Chew, who wrote on 11 February 2019 of his assessment of the offender. He refers to the significant motor vehicle accident in which he was injured when he was 19 years of age. He suffered a brain injury and required rehabilitation from 13 February 1988 to 28 March 1989. He was ultimately diagnosed with a significant acquired brain injury with significant cognitive, personality and physical difficulties as a result.

28. He has significant frontal lobe and executive function deficits that were in due course documented. The brain injury is predominantly to the right side, with significant left-sided physical dysfunction including dysarthria. His intelligence quotient is recorded.

29. He has had the Public Trustee providing for his financial affairs since November 1997, necessary for the management of the compensation payment discussed in the report.

30. He had little memory of the details of the misconduct. He saw the video recording and accepts that he must have done it, that he was really sorry, and that he does not want to hurt anyone. He said that leading to the behaviour he had been very stressed, he had been short of money; he had been homeless, despite having money from the Public Trustee, managing his compensation payout for him.

31. He spoke of being prescribed medication but had stopped taking it because he said he did not need it. He has had long involvement on and off with mental health services since the acquired brain injury. He overdosed on a number of occasions in the 1990s. He has been treated with various medications including anti-depressants and anti‑psychotics. He was diagnosed previously with a psychotic disorder and treated with anti-psychotic medication. He has been a cannabis user but denied other illicit drugs. He denies drinking alcohol.

32. He has no family other than one sister; both parents are deceased. He has little contact with his sister. He has, he said, at least at the time of this report, an intimate relationship with no dependent children. He completed school to Year 10, he did okay at school he said. He had an apprenticeship as a sheet metal worker, but did not complete this and thereafter worked in various labouring positions until 1998 when he had the motor vehicle collision, the significant brain injury, and thereafter the inability to engage upon continuing and meaningful work.

33. He underwent a mental state examination and this led to a primary diagnosis of a severe acquired brain injury with significant cognitive impairment as a result of that. He has a significant physical, emotional and psychological disability with consequent difficulties, all arising from that catastrophic event earlier in his life. He has been burdened by these for many years and it is unlikely that they will improve. It is likely that he also has schizophrenia, currently untreated.

34. He was assessed as not meeting the minimum R v Presser [1959] VR 45 criteria for the purposes of his fitness for the proceedings, but that opinion has been surpassed by subsequent developments and improved capacity to continue with the prosecution and thus the sentence proceedings today.

35. There is a report by Dr Adam Martin, forensic psychiatrist, written on 9 April 2019. He had access to various documents including the relevant statements and the interview in which the offender participated. His history included his age and his period of homelessness prior to his entry to the lodge where this event occurred. The history included the traumatic brain injury, as discussed, with the consequences he suffers from it; his medication is discussed and his abstinence when he should be taking it. His history of self-harming is dealt with.

36. Again this doctor writes of the fitness issue. The offender described to the doctor his understanding of the proceedings and what would be expected of him and what would be expected of other participants in the process. The doctor found that he could not be satisfied that the offender understood the explanations given to him.

37. His history of the event was thought to be probably unreliable. There had been consumption of alcohol and illicit drugs prior to the event. The issue of fitness was considered; the doctor was of the opinion that his impairment was such that the Court would be likely to find him unfit to stand trial. As I say, things have moved on from then.

38. There is a report from Dr Olav Nielssen, written on 11 July 2020.

39. I might interpolate at this point that each of these practitioners, over the years I have been a judge in these courts, have provided reports that I have found in all instances to be objective and reliable in the harvest of material and the assessment of that material, underpinning the opinions they have offered. I have no difficulty accepting the views here expressed.

40. The report from Dr Nielssen is comprehensive, speaking of his history, including his mental health care, his medical history, his history of substance use, including alcohol and cannabis, and his denial of any other drug. He tried methamphetamine several times when he was at Kempsey, he said. He denied any abuse of medication, including opioids or sedatives.

41. His personal history is discussed, including his education. A review of the documents is provided, including the reports of Dr Chew and Dr Martin. He underwent a mental state examination. He diagnosed acquired brain injury, substance use disorder with possible psychotic illness. His opinion is given, including with regard to the availability of a defence of mental illness. Dr Nielssen was of the view that the offender was now fit for trial, reflecting the progress that he has made I would suggest in custody.

42. There is a report of a neuropsychological assessment provided by Dr James Berry. The findings are most consistent with a diagnosis of extremely severe traumatic brain injury involving the right hemisphere greater than the left, consistent with his report of extensive bruising in the right side of his brain. Poor prospects for improvement are noted and recommendations are made with regard to his future management. In respect of that I have a transition plan which outlines the assistance that is available to him once he is released into the community.

43. There is material from the Public Guardian, who writes of the decision by the Guardianship Division of the New South Wales Civil and Administrative Tribunal, to appoint a public guardian on 3 June 2020 to make decisions about accommodation, healthcare, medical and dental consent services and objections to treatment. There is an address nominated for which consent is given for him to reside and reasons for the decision reached are discussed.

44. The plan under the NDIS has been approved according to the next document in the bundle which I have read.

Submissions

45. I have been assisted by the written submissions provided by the parties. They are ultimately all to the same point and outcome.

46. The Crown has helpfully given me guidance with regard to the assessment of the objective gravity of the offending. The nature of the attack, the severity of consequences and the nature of the injury are all relevant factors to be brought to account, and upon the combination of those matters the Crown concedes that objectively the offences are below the middle range, notwithstanding that it is serious misconduct.

47. To place it more precisely on the scale is not easy, but I would suggest it is somewhere approaching middle range, but well below it. I note that there was a weapon used. The attack was unprovoked. There was a single blow directed towards the victim’s face, which appears to have been deflected by her hand. The limited nature of the injuries is conceded by the Crown, also the absence of objective aggravating factors.

48. The Crown concedes his individual state of health as a relevant factor and that the aspect of general deterrence has limited significance in this case. I agree with the Crown’s submission that is this matter in which the guidance provided by the High Court of Australia in Veen (No. 2) ibid has application. The Crown concedes the nature of the burdens that the offender suffers, including his low frustration tolerance, his impairment to emotional regulation and impulse control, exacerbated by the consumption of alcohol before these events.

45. I am reminded of what the High Court said in Muldrock v The Queen ibid at para [66] in the following terms:

“General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.”

50. This is a proposition obviously of application in this case.

51. I am reminded of DPP (C’th) v De La Rosa [2010] NSWCCA 194 at para [177]. The custodial sentence might be found to weigh more heavily upon this offender, particularly in the current climate with the COVID‑19 virus burdening all of us in society.

52. There is also an impact upon the assessment of specific deterrence, but there is correspondingly a need to provide adequate protection from the offender because of the explanation for this misconduct.

53. The submissions made on behalf of the offender urged the view that he has reached the stage of his progress through the criminal justice system in respect of this matter whereby he has all but completed his custodial component. With that proposition I agree.

54. The balancing submission put against what the Crown has had to say is that this was not a sustained attack and was of a short duration, a matter upon which I have already commented. There was only one strike leading to the injury suffered. It was impulsive, I accept. He was subject to the mental condition at the time, which I have already sought to summarise, and the significance of mental illness is addressed.

55. He has limited opportunities for care in the community other than by way of the program that has been assembled for him.

56. The documents that have been provided in his case, exhibit 1, should accompany him so that they will be available to the parole authorities. A copy should be retained on file so that the parole authorities may have access to those in the next few weeks when he will be eligible.

57. I have brought to account his plea of guilty. I have applied 25% discount. It is probably a little bit more to round out the sentence in years and months, but I see no difficulty with that in the circumstances. There are ample special circumstances. The significance of a custodial sentence upon him in light of his impairment needs no further elaboration. He does need a longer period of time on parole, under supervision, to exploit the treatment options that are in place for him.

Sentence

58. I convict him of the offence of reckless wounding. I specify a non‑parole period of 2 years and 1 month from 27 October 2018 to expire on 26 November 2020. I impose a further period of imprisonment during which he is eligible for parole of 1 year and 1 month to expire on 26 December 2021.

59. The exhibits can remain on file.

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Decision last updated: 16 November 2020