R v James FRYAR

[2008] NSWCCA 171

New South Wales
Court of Criminal Appeal

CITATION:	R v James FRYAR [2008] NSWCCA 171
HEARING DATE(S):	8 July 2008
JUDGMENT DATE:	13 August 2008
JUDGMENT OF:	Spigelman CJ at 1; Barr J at 2; Fullerton J at 3
DECISION:	1. The Crown appeal is allowed. 2. The sentence imposed in the District Court is quashed. 3. The respondent is sentenced to a term of imprisonment comprising a non-parole period of 6 years to date from 25 August 2006 and to expire 24 August 2012 with a balance of term of 3 years to expire on 24 August 2015.
CATCHWORDS:	Crown appeal against inadequacy - one count malicious wounding with intent to cause grievous bodily harm - after trial - application of s 54B of Crimes Sentencing Procedure Act 1999 - identified errors in assessment of objective criminality - failure to find a matter of aggravation under s21A(2)(i) - overweighed matters of mitigation.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	DB v R; DNN v R [2007] NSWCCA 27; 167 A Crim R 393 Mackey v R [2006] NSWCCA 254 R v Baker [2000] NSWCCA 85 R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398 R v Mitchell; R v Gallagher [2007] NSWCCA 296 R v Nowak [2008] NSWCCA 89 R v Saleib [2005] NSWCCA 85 R v Way [2004] NSWCCA 131; 60 NSWLR 168 SZ v R [2007] NSWCCA 19; 168 A Crim R 249 Vragovic v R [2007] NSWCCA 46
PARTIES:	The Crown (App) James Fryar (Resp)
FILE NUMBER(S):	CCA 2007/15487
COUNSEL:	MG Sexton SC (App) D Price (Resp)
SOLICITORS:	Director of Public Prosecutions (App) Conaghan Hunter Solicitors (Resp)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0266
LOWER COURT JUDICIAL OFFICER:	Flannery DCJ
LOWER COURT DATE OF DECISION:	18 April 2008

2007/15487

SPIGELMAN CJ
BARR J
FULLERTON J

Wednesday 13 August 2008

R v JAMES FRYAR

Judgment

1 SPIGELMAN CJ: I agree with Fullerton J.

2 BARR J: I agree with Fullerton J.

3 FULLERTON J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act 1912 against the inadequacy of the sentence imposed by her Honour Judge Flannery at the Sydney District Court on 18 April 2008. The sentence was imposed after trial.

4 On 19 November 2007 the respondent was indicted on two counts, cast in the alternative, arising out of an incident where the victim was stabbed in the back with a Stanley knife. The first count charged a wounding with intent to murder contrary to s 27 of the Crimes Act 1900 and the second count malicious wounding with intent to cause grievous bodily harm contrary to s 33 of the Crimes Act. The respondent offered to plead guilty to the offence constituted by s 35 of the Crimes Act as a statutory alternative to the second count. The Crown refused to accept the plea of guilty in discharge of the indictment and the matter proceeded to trial.

5 On 29 November 2007 the respondent was convicted of malicious wounding with intent to cause grievous bodily harm which carries a maximum penalty of 25 years imprisonment and attracts a standard non-parole period of 7 years pursuant to Div 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act").

6 Her Honour imposed a non-parole period of 4 years to date from 25 August 2006 and to expire on the 24 August 2010. The sentence was backdated to account for the fact the respondent had been in continuous custody from the date of charge, namely 25 August 2006. On finding special circumstances established her Honour imposed a balance of term of 2 years and 6 months to expire on the 24 February 2013.

The Crown appeal in summary

7 The Crown’s primary submission is that the sentence is manifestly inadequate, particularly having regard to the fact that a standard non-parole period of 7 years is specified and further, that since the conviction was entered after a trial, the mandatory operation of s 54B(3) of the Sentencing Act required the imposition of the standard non-parole period where the offending is appropriately described as in the mid range and where there are no countervailing considerations in s 21A of the Sentencing Act warranting the imposition of another sentence.

8 The Crown identified a number of specific errors that led her Honour to erroneously categorise the offending as less than mid range for hypothetical offending of a kind contemplated by the section. In addition, the Crown submitted that her Honour failed to find a number of nominated matters of aggravation in s 21A(2) of the Sentencing Act established on the evidence and that a number of mitigating factors under s 21A(3) were either not established by the evidence or were otherwise overweighted in the sentencing exercise.

9 The matters said by the Crown to aggravate the offending were that the offence was committed without regard to public safety, as provided for in s 21A(2)(i) of the Sentencing Act, and that the injury and associated emotional harm the victim suffered was substantial as provided for in s 21A(2)(g).

10 In so far as matters in mitigation are concerned, the Crown submitted that her Honour overestimated the assistance given by the respondent to the authorities in circumstances where it was of limited utility and where there was no evidence that the respondent’s conditions of custody would be more onerous as a consequence. In addition, the Crown submitted that this is not a case where injuries suffered by the respondent when others came to the defence of the victim should have been afforded any weight in the sentencing exercise and finally, that her Honour was not entitled to find that the respondent had good prospects of rehabilitation, or was unlikely to re-offend, where he displayed a lack of remorse and insight into his offending.

The relevant facts and her Honour’s findings

11 Her Honour’s finding of fact for sentencing purposes were stated in summary in her sentencing reasons. However, since there was some controversy on the appeal both as to the proper evaluation of the evidence bearing upon the assessment of the objective seriousness of the offence, and the extent to which the evidence established both aggravating and mitigating features of the offending, it became necessary to refer to some of the evidence at trial to resolve the controversy.

12 The respondent and the victim had known each other for many years. They had originally been work colleagues in the building and construction industry. The victim had also been in a long-term relationship with the sister of the respondent’s former wife. The closeness of that connection appears to have given rise to the respondent’s belief that the victim had been having an affair with his former wife as a result of which the respondent had made numerous threats of various kinds over a period of two and a half years prior to the day of the offence.

13 Her Honour found that there was pre-existing tension between the offender and the victim as at the afternoon of the Friday 24 August 2006. This was a finding clearly open to her. The question that arises on the appeal is the impact of the so-called undercurrent of tension on an assessment of the objective seriousness of the respondent’s offending when, motivated by his subjective belief that he had been wronged in some way, he decided to take his revenge by attacking the victim with a knife. The Crown submits that her Honour has given the relationship between the respondent and the victim undue weight and has failed altogether to take into account the importance of specific and general deterrence when a person acts, as if in self-justification, as the respondent apparently did in this case (see Vragovic v R [2007] NSWCCA 46 at [33]; R v Mitchell; R v Gallagher [2007] NSWCCA 296 at [30]-[31]).

14 In the late afternoon of Friday 24 August 2006, whilst drinking in a hotel in Manly, the respondent spoke openly of the enmity he felt towards the victim. He repeatedly expressed a desire to seriously injure the victim so as to both punish him and to exact his revenge. According to the evidence of the people drinking at the hotel it is clear that the respondent was very upset, emotional, agitated and angry. Efforts by various people to calm him down were neither welcome nor successful.

15 It would appear that the victim came to hear of the respondent’s threats and telephoned the respondent to confront him. The objective evidence established that the telephone call lasted in excess of five minutes. The victim gave evidence that in the course of the telephone conversation the respondent threatened to kill him and the respondent’s former wife and, while he felt some concern at the currency of this latest threat, he regarded the telephone call as no different from previous telephone calls of a similar kind. For this reason, when the respondent issued the threats to kill him, the victim said “well come and do it then”.

16 Counsel who appeared at trial and on sentence sought to persuade her Honour that the objective criminality constituted by the offence was below mid range because it was the result of provocative conduct on the part of the victim. Although the respondent did not give any evidence at his trial as to the content of the phone call, the victim was cross-examined at some length about it. In the result her Honour was satisfied that something was said by the victim to the offender that escalated the situation. It is not clear from that finding that her Honour accepted counsel’s submission as to the mitigating effect of provocation as provided for in s 21(A)(3)(c) of the Sentencing Act. That is not to say that her Honour’s finding that something was said by the victim to the offender that escalated the situation was not open to her. Plainly enough the telephone conversation between the two men was heated with an exchange of verbal abuse of various kinds, and the victim deliberately taunted the respondent by inviting him to carry out his threats. However, in the context of a sustained course of threatening conduct as detailed by the victim in his evidence, and in the absence of any evidence from the respondent about the content of the phone call or his reaction to anything said to him by the victim, it is difficult to see how provocation, in the sense that term is used in s21A of the Sentencing Act, was open on the evidence. In any event, I do not understand that her Honour found that in placing the call or participating in the conversation the victim actually provoked the attack, as distinct from his conduct in some limited way ameliorating its objective seriousness.

17 Some hours after the phone call, the respondent went to his former wife’s home and sought access which she refused. It would appear that he then drove to Harbord Bowling Club with the intention of confronting the victim. There is no evidence of the distance travelled from the respondent’s former wife’s home to the Club. The evidence does establish however that he had a new Stanley knife in his possession in the car at this time. It is not clear when or where the knife was purchased but the open packaging was discovered on the front passenger seat of his car by police after his arrest, supporting the inference that he removed the knife from the packaging in the carpark and walked inside the club with the intention of stabbing the victim.

18 By necessary inference the respondent was heavily intoxicated both en route to the Club and on entering the Club since he had a blood alcohol reading of 0.19 some hours after his arrest. Her Honour found that at the time of the offence he was not thinking clearly because of underlying depression which was exacerbated on the day of the offence by his consumption of alcohol. The Crown accepts that his state of intoxication and depression doubtless affected his judgment but that her Honour wrongly treated it as a significant matter ameliorating the objective seriousness of the offence

19 The victim was in the bar of the Club sitting at a table drinking with friends. The respondent approached him from behind. He wielded the knife in a downward motion causing a deep penetrating wound 20 cm in length extending from between the victim’s shoulder blades along his back muscle. The wound required exploratory surgery. In a victim impact statement the victim claims to have suffered muscle damage which disabled him from working for nine months and that he suffers continuing discomfort from the injury.

20 Her Honour concluded that the wound was serious but “not the most serious wound seen by the courts for offences of this kind”. Her Honour also held that the use of a bladed weapon did not carry great significance for sentencing purposes. In addition, she found that whilst the respondent planned what she described as “some physical contact with the victim” well before his arrival at the Club, she was not satisfied to the criminal standard that he formed the intention to use the knife much before he entered the Club. There being no evidence as to when the Stanley knife was purchased, and in circumstances where it was legitimately used in the course of the respondent’s trade, her Honour’s finding that it was a relatively opportunistic use of the knife as a weapon was open to her. The question that presents on the appeal is whether that finding, together with her finding that the use of the knife and the seriousness of the wound were not of great significance, that some conduct of the victim escalated the situation and that the respondent was subject to the combined effects of depression and intoxication at the time of the offending, justified her assessment of the offence as below the mid range of objective seriousness such as to displace the operation of s 54B(3) of the Sentencing Act.

The significance of the standard non-parole period

21 In circumstances where the respondent was convicted after trial, her Honour was required to consider the imposition of the standard non-parole period in accordance with the principles set out in the R v Way [2004] NSWCCA 131; 60 NSWLR 168. It is submitted by the Crown that her Honour’s assessment of the objective seriousness of the offence as “somewhat below mid range” was, in all the circumstances an error and, that at the very least, the offending fell within the mid range such as to warrant the imposition of the standard non-parole period, subject only to relevant account being given to aggravating and/or mitigating factors referred to in s 21A of the Sentencing Act.

22 I accept that an assessment of where in a range of notional cases a particular offence might fall is not easy or capable of precise assessment and that the intuitive experience and discretion of the sentencing judge, particularly when he or she presided over the trial as is the case here, should be given great weight. With that caveat, and accepting that it was open to her Honour to find that the nature of the wound was not of the most serious kind, it was, nevertheless, a serious injury with ongoing physical sequelae. Similarly, accepting that a Stanley knife as distinct from a knife fashioned deliberately as a weapon is a feature of the offence which may distinguish it from other malicious wounding offences where a knife is used, the Stanley knife was nevertheless deliberately wielded as weapon in this case, and was both capable of and in fact caused serious injury. The Crown submits that rather than a feature mitigating the seriousness of the offending the use of the Stanley knife was an aggravating feature under s 21A(2)(c) of the Sentencing Act since it is not a matter which can be properly regarded as an element or an inherent characteristic of a breach of s 33 of the Crimes Act (see R v Nowak [2008] NSWCCA 89 at [14]-[18] per Buddin J).

23 Her Honour was obviously entitled to take into account the injury suffered by the victim and the means used to inflict that injury when assessing the objective criminality of the respondent’s conduct since these are factors comprehended by the range of matters to which an assessment of the objective seriousness of offending against s 33 is properly directed. While I accept that in other circumstances these factors might justify a finding of less than mid range offending, I fail to see how they could be regarded in this way in the particular circumstances of this case where the wounding was the result of a calculated attack. On the other hand, I am not satisfied that they are aggravating features. I am also of the view that her Honour gave undue weight to the pre-existing tension between the respondent and the victim, what was said to be the victim’s contribution to the escalation of the tension and its ultimate eruption in violence on the day of the offence, and the respondent’s intoxication and underlying depression in coming to the ultimate view that the offending was below the mid range. While these matters provided the context in which the offence was committed I am not satisfied that they carried any significant weight in an assessment of the seriousness of offending constituted by an intentional and premeditated use of a bladed weapon to inflict injury in an act of revenge, and an injury delivered with force from behind. I am of this view despite that fact that the premeditation was of short duration and that the respondent’s motive was wholly misguided and exacerbated by the effects of alcohol. In giving those features the limited weight they deserved, and properly weighting the respondent’s use of the knife and the injury inflicted, I consider the offence within the mid range of objective seriousness and that her Honour erred in finding otherwise.

24 Just as a finding of mid range offending does not of itself mandate the imposition of the standard non-parole period in the sentencing process, identification of error in that assessment on a Crown appeal does not necessarily warrant the intervention of this Court since an essential prerequisite is the formation of the relevant opinion under s 6(3) of the Criminal Appeal Act (see DB v R; DNN v R [2007] NSWCCA 27; 167 A Crim R 393 per McClellan CJ at CL at [8]-[16]). In addition, the restraints that are properly applied to Crown appeals need to be considered. They do not need restatement (see R v Baker [2000] NSWCCA 85).

25 In this case however the Crown goes further than identification of an error in the assessment of the objective gravity of the respondent’s offending. It is submitted that there are additional errors in her Honour’s assessment of the interaction of aggravating and mitigating features under s 21A of the Sentencing Act and that these errors, in combination with the erroneous appointment of the degree of objective criminality as below mid range, justify a finding that some other sentence is warranted at law.

Was the discount given for assistance unjustified?

26 Section 23 of the Crimes (Sentencing Procedure) Act allows a court to impose a lesser sentence on account of the degree to which an offender has assisted the authorities. In her Honour’s reasons for sentence she set out the section in full. She referred to a confidential exhibit tendered in the proceedings when concluding that the information the respondent provided was truthful, complete and reliable, and that it was of some use to the New South Wales Crimes Commission despite the fact that it was not particularly timely and that it did not relate in any way to the offence for which the respondent was to be sentenced. She described the assistance as referable to a person well-known to the Crimes Commission and a person who had been the subject of previous investigations. It appeared that the respondent also provided assistance about another person who was said to have been the main purchaser of drugs from this person and that the Crime Commission was previously unaware of this second person.

27 Her Honour rejected the Crown submission on sentence that the assistance was worth no more than a 10 per cent reduction on sentence and reduced the sentence by 20 per cent. She did so in circumstances where she openly acknowledged that there was no suggestion that the offender would suffer harsher custodial conditions as a consequence of providing the assistance and that s 23(3) of the Sentencing Act expressly provides that any lesser penalty that is imposed by reason of assistance must not be unreasonably disproportionate to the nature and circumstances of the offence attracting sentence. Her Honour also found that in addition to the respondent’s assistance to the authorities there was some utility in his admission before trial that he was guilty of the malicious wounding of the victim ( albeit only on the basis of recklessness) because it narrowed the issues in the trial and reduced the hearing time. She was also satisfied that there was a degree of pre-trial disclosure which had a further utilitarian benefit and that these matters would be taken into account in the calculation of sentence.

28 Although her Honour expressly limited the 20 per cent discount to reflect the respondent’s assistance to authorities (a discount which in the circumstances was unduly generous given that a combined discount for assistance and an early plea of guilty has traditionally been in the order of 20 per cent to 50 per cent: see SZ v R [2007] NSWCCA 19; 168 A Crim R 249, and that no plea of guilty was entered in this case such as to overcome the need for a trial) if that discount also takes into account her Honour’s finding that the respondent facilitated the course of justice by pre-trial disclosure and by the way he conducted his case then, in my view, it is not so egregiously high as to constitute error.

The significance of the circumstances in which the offence was committed and the respondent’s injuries suffered at that time

29 A number of patrons of the Club attempted to restrain the respondent after he had inflicted the injury with the knife. It would seem that by force of numbers he was also punched and kicked to the body and face whilst standing and then kicked again whilst being held on the ground before being thrown face first through a plate glass window with sufficient force to shatter it. As he extricated himself from the broken window he was observed to hold shards of glass in his hand and verbally threaten those around him. He was also hit in the face with a heavy bar stool and as a consequence he sustained a fractured eye socket and substantial bruising to the face and lacerations to his arms and hands.

30 This evidence is said by the Crown and the respondent to have different significance for sentencing purposes.

(a) The significance of the evidence as contended for by the Crown

31 Both on sentence and on appeal, the Crown submitted that a knife attack in a relatively crowded public bar well justified a finding that the respondent acted in disregard of public safety within the meaning of s 21A(2)(i) of the Sentencing Act. Her Honour was referred to the case of R v Saleib [2005] NSWCCA 85 at [55] where Bell J said, albeit obiter:

“55 I am inclined to the view that an offence involving an unprovoked ferocious assault committed in company on a public street in the near presence of members of the public does put public safety at risk. Putting members of the public in fear of immediate personal violence may itself be said to prejudice public safety. Equally, one or more members of the public may come to the assistance of the victim and thereby be endangered, just as others may suffer injury in fleeing from the scene. That the applicant committed the offence without regard to public safety may be the inference to be drawn from the fact that members of the public were in close proximity and that he nonetheless proceeded with the assault. In the circumstances of this application it is not necessary to come to a concluded view on the content of proof of the aggravating factor in subsection (2)(i) for the purpose of offences of this description.”

32 Her Honour was not however satisfied that this feature of aggravation was established to the criminal standard.

33 On any view the respondent’s conduct was a serious assault committed in an enclosed public place in the immediate presence of members of the public. The inference is easily drawn that the respondent had little or no regard for the effect of his violent behaviour on others, and no regard for what members of the public may do in seeking to disarm him or contain him. Despite his intoxicated state, I am satisfied that he must have known that members of the public would be in the bar yet he entered it with the intention of stabbing or slashing the victim. The Crown observes, correctly in my view, that the extent and degree of the retaliatory actions of those members of the public who were confronted by the respondent’s actions is ample evidence that it was simply fortuitous that they were not injured by the glass window that shattered as a direct consequence of the respondent’s attack, or that they were not otherwise injured in restraining or disarming him.

34 Since it is the risk to public safety that falls to be assessed under s 21A(2)(i) of the Sentencing Act and not what actually transpired, I fail to see how the respondent’s conduct in the given circumstances could not otherwise than satisfy the feature of aggravation provided for under the Act, and to the criminal standard. I consider her Honour was in error in finding otherwise.

(b) The significance as contended for by the respondent

35 The respondent seeks to rely upon the fact that he was punished by the conduct of others taken in retribution or retaliation at his attack on the victim in reducing sentence. Her Honour indicated her intention to take that factor into account when sentencing the offender although she gave no nominated weight to it.

36 In R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398 at [62], James J referred to the approach to be taken to an assessment of the weight of extra-curial punishment in the following way:

“62 I have concluded from this examination of the authorities cited to the Court and especially Allpass, Clampitt-Wotten and Cooney that, while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight.”

37 In Mackey v R [2006] NSWCCA 254, in a factual context not dissimilar to this case, the Court concluded that the sentencing judge did not err in failing to take into account the injury suffered by the offender when the injuries did not result in a serious loss or detriment.

38 The evidence before her Honour as to the extent of injuries the respondent suffered at the hands of others was limited to photographs of the injuries and mention made in the report of Mr Watson Monroe, consultant forensic physiologist, of the respondent having reported to him that he was initially hospitalised at Royal North Shore Hospital with fractures to his eye sockets and broken ribs before being remanded in custody, and that he has suffered shoulder pain since that time which has been treated with an anti-inflammatory drug. In my view, consistent with the overarching principle to which James J refers in R v Daetz and Wilson, the respondent’s injuries, whilst not wholly irrelevant, ought to have been afforded little weight in mitigatory terms.

Has error requiring re-sentence been demonstrated?

39 In recognition of the width of the discretion that is the legitimate province of the sentencing judge, this Court has sought to deter both the Crown and offenders from instituting proceedings where the primary challenge is to the weight afforded to competing considerations in a sentencing exercise. However, after a careful review of her Honour’s reasons for sentence, I consider that her discretion has miscarried due to the unwarranted weight she gave to what she described as the severe summary justice the respondent suffered at the hands of others in mitigation of sentence and by her failure to give any account to the risk to public safety his conduct occasioned as a circumstance of aggravation. This, together with her Honour’s erroneous appointment of the offending as below mid range, satisfies me that another sentence is warranted in law and ought to have been passed in accordance with s 6(3) of the Criminal Appeal Act. For this reason it is not necessary for consideration to be given to the Crown’s further submission that her Honour was not entitled on the evidence to regard the respondent’s prospects of rehabilitation as favourable or to find that he was unlikely to re-offend, since these matters will be given fresh consideration on re-sentence.

40 In undertaking that exercise this Court must exercise its own sentencing discretion and make its own assessment of the position the respondent’s offence occupies on a scale of objective gravity and, since the respondent was convicted after trial, in accordance with the approach mandated by s 54B(2) and (3) of the Sentencing Act.

41 After taking into account all the circumstances of the offence including, inter alia, the weapon used to inflict the injury and the injury that resulted, and despite the matters that bear relevantly on the respondent’s mens rea, in particular his state of intoxication and his motivation, I regard the offending as within the hypothetical mid range for offending of the kind for which s 33 provides criminal sanction. Accordingly, the standard non-parole period of 7 years is the appropriate starting point for the calculation of sentence and a sentence that should be imposed subject to s 21A of the Sentencing Act.

42 I have already expressed the view that the offending was aggravated by the fact that it occurred in a public place where there was a palpable risk to members of the public and that for sentencing purposes this displaces any consideration being given to the injuries suffered by the respondent as members of the public sought to disarm and contain him. The respondent is however entitled to the benefit of a positive finding in so far as his assistance to the authorities is concerned which, together with the utility that resulted from pre-trial disclosure as provided for in s 21A(3)(l) and (m), I am satisfied results in a compound discount of 20 per cent. This will be featured in the sentencing order I propose.

43 With a view to determining the mitigatory effect of other matters specified as under s 21A(3) of the Sentencing Act, namely the respondent’s record, his prospects of rehabilitation and the likelihood of him re-offending and the effect of those matters on the standard non-parole period, it is necessary to consider the evidence both at the time of offending and currently, as it concerns those matters.

44 The appellant was born in Scotland on the 21 February 1956. He has no relevant record for violence but has a multiple entries over an extended period for driving with a prescribed content of alcohol and associated offences of driving whilst disqualified.

45 His mother died when he was seven years old and thereafter he was raised by different family members, primarily his grandmother. He did not have a close relationship with his father who is also deceased. Following a period of five years in the military he emigrated to Australia when he was 30. He has been a resident of this country since that time. One of his sisters sponsored his migration to Australia and he has in turn sponsored his second sister. He retains a close relationship with both women.

46 His former wife came with him from Scotland although, as he reported to the probation officer, there was a lack of trust between them from an early time despite the fact that the marriage was generally happy for a period. The persisting lack of trust resulted in their separation in 2004. There are three children of that union. Although he had the custody of the two youngest children for about a year after separating from his wife, they thereafter returned to their mother’s care. This appears to have been a precipitating event for the onset of his social and behavioural dysfunction. It appears, that since his imprisonment he has no contact with his children.

47 He was in gainful employment as a bricklayer after completing his military service and at one time owned a business employing up to 12 staff. However in the 12 months leading up to the commission of the offence he was working only intermittently. This was coincident with a deteriorating state of mental health. In a report prepared for the purposes of sentence by Mr Tim Watson–Munro, psychologist, the respondent claimed to have been under treatment for depression in the ten years prior to the offence, seeking treatment originally as a result of side effects after smoking cannabis. Although he claimed to be a regular user of antidepressant medication over that ten year period, enquiries by the Probation and Parole Service of the two general practitioners who he named as his primary prescribing doctors were unable to confirm that he was the recipient of any drugs for the treatment of depression at the time of the offence in August 2006 and further that the last time antidepressants were prescribed was in February 2005, and then only a six month course. Accordingly, although the respondent claimed in the interview with the Probation and Parole officer that he was taking antidepressant medication up to four days prior to the offence, this was unable to be independently confirmed. There is no evidence before this court that would enable any different conclusion to be drawn. I do note however that at the time of the Probation and Parole report in January 2008 the offender was receiving antidepressant medication through the prison medical service and that he reported an improvement in general mood and outlook.

48 It would seem from a reading of both the Probation and Parole report and the report from Mr Watson-Munro that the respondent has used alcohol over a considerable period in an attempt to suppress a volatile emotional state and to deal with a progressively dysfunctional approach to his life and work. There is no doubt that on the day of the offence he consumed a substantial quantity of alcohol and that this was consistent with a daily pattern of binge drinking which had the compound effect of undermining his capacity to set any responsible work goals or to deal in any rational way with his life circumstances. He told Mr Watson-Munro that in the months preceding the offence he survived financially by taking piecemeal jobs, such as building fire places for people in the immediate locality, which would then enable him to attend the local hotel by midday whereafter he would typically drink for four to five hours before returning home and going to bed. Not surprisingly he suffered chronic sleep disturbance with intermittent suicidal ideation. This pattern of alcohol abuse continued up until the time of his arrest.

49 According to the report of Mr Watson-Munro, the respondent has detoxified whilst in custody. I am not persuaded that the objective seriousness of the offence is mitigated by the fact that the respondent was heavily intoxicated in circumstances where it cannot be said that the offence was impulsive or unplanned, although I do see his abuse of alcohol generally as of significance in assessing the prospects of rehabilitation. In the view of the Probation and Parole officer however as at December 2007 the respondent’s abuse of alcohol and associated violent behaviour, as revealed by the offence with which he stands to be sentenced, remained largely unaddressed. This is in contrast with a report dated 13 March 2008 where the Alcohol and Other Drugs worker at the Metropolitan Special Programs Centre reported that while there were currently no courses available for the respondent to address his alcohol abuse he has nevertheless been active in seeking information and is currently participating in one-to-one counselling and undertaking written assignments. The author of the report found the respondent to be motivated and thoughtful in his responses. That was a view shared by Mr Watson-Munro whose report is also dated March 2008. In his view the respondent’s express desire for continuing treatment whilst in custody and upon his eventual release into the community is genuine.

50 I am satisfied that in the process of what must be seen to be a forced detoxication from alcohol the respondent has a clearer insight into the precursors to his serious criminal offending and the impact of his behaviour upon others, most importantly upon the victim. Although his prospects of rehabilitation must be somewhat guarded, and the reduced risk of his re-offending wholly dependent upon an acknowledgement of his dependence on alcohol and a determination to embrace a fresh approach to social integration in the future with the personal and public responsibilities that this entails, I do consider it should be afforded weight in the sentencing exercise.

51 I am also satisfied that a finding of special circumstances is warranted since the sentence he is currently serving is his first custodial sentence, and there is a need for extended supervision on his release in order to address his alcohol dependency and his related mental health issues. I note in that connection the recommendation of the Probation and Parole officer that his pre-release case management should include an assessment for the violent offenders therapeutic program which is facilitated from Long Bay Correctional Centre. That is consistent with the view of that officer that the respondent was suitable for medium level intervention upon his release including strategies to address alcohol dependency and related mental health conditions such as anger management issues.

52 The sentence that I consider is appropriate to impose on re-sentence has been moderated in recognition of this being a re-sentencing after a Crown appeal.

Orders:

53 I propose the following orders:

1. The Crown appeal is allowed.

2. The sentence imposed in the District Court is quashed.

3. The respondent is sentenced to a term of imprisonment comprising a non-parole period of 6 years to date from 25 August 2006 and to expire 24 August 2012 with a balance of term of 3 years to expire on 24 August 2015.

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